DADT Back on Books Pending DOJ Appeal

A panel of federal judges issued an indefinite stay on Judge Virginia Phillips’ order halting the ban worldwide

SAN FRANCISCO—A federal appeals court on Monday indefinitely extended its stay on a judge’s injunction halting the enforcement of “Don’t Ask, Don’t Tell.”

Judge Virginia A. Phillips of the 9th U.S. Circuit Court of Appeals had previously found the military’s ban on openly gay service members unconstitutional and ordered the Pentagon to stop enforcing the discriminatory ban worldwide. A three-judge panel on the 9th Circuit eight days later granted the Obama Justice Department’s request for an emergency stay on the order while it prepares to appeal Phillips’ ruling.

The same panel of judges on Monday imposed a temporary hold on Phillips’ order that will effectively preserve DADT until at least late January, the deadline for the Department of Justice to submit its brief.

As a result of Monday’s decision,  the military will continue to bar openly gay Americans from enlisting or serving, and discharges under DADT can—and presumably will—proceed.

Two of the judges favored a broader freeze on the injunction and wrote in their majority opinion they were convinced by the Department of Justice’s arguments that Phillips’ order “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change” to the policy. They also noted that decisions by four other federal circuit courts on the constitutionality of DADT were “considerably at odds” with Phillips’ opinion.

The dissenting judge, William Fletcher, said he would have preferred to hear oral arguments before implementing an indefinite stay, and that he also would have favored blocking the Pentagon from discharging any current members of the armed services pending the case’s appeal.

The potential repeal of DADT has morphed into a hot-button issue for President Obama, who has repeatedly emphasized his opposition to the law, but whose administration has chosen to follow the Department of Justice’s tradition of defending acts of Congress in court—and continues to mount that defense in the appeals process.

The president has said he plans to push for another vote on DADT’s repeal during Congress’ upcoming lame duck session. Congressional Democrats’ attempt in September to abolish DADT through the annual defense authorization bill failed in the Senate.


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