9th Circuit Reinstates Military Gay Policy

     (CN) – The U.S. military can temporarily resume enforcing its “Don’t Ask, Don’t Tell” policy banning openly gay troops, the 9th Circuit ruled late Wednesday, granting the Obama administration’s request for a stay pending appeal.

     In a one-page order, the 9th Circuit stayed U.S. District Judge Virginia Phillips’ sweeping injunction against the policy “in order to provide this court with an opportunity to consider fully the issues presented.”
     The government first asked Phillips to stay her Oct. 12 order, but she refused, saying the public interest in “safeguarding fundamental constitutional rights” outweighed the government’s interests in “preventing the status quo and enforcing its laws.”
     A day later, on Wednesday, Justice Department lawyers filed an emergency motion for a stay in the 9th Circuit, arguing that the broad injunction “threatens to disrupt the ongoing efforts to fashion and implement policies to effect repeal” of the Don’t Ask Don’t Tell Act.
     The law, passed in 1993 under the Clinton administration, requires the discharge of openly gay or lesbian military service members.
     Efforts to repeal the Act stalled in Congress this fall with a Republican filibuster, but the Log Cabin Republicans successfully challenged the law in federal court.
     Judge Phillips said the policy “infringes the fundamental rights of United States servicemembers” and harms the government’s interests in military readiness and unit cohesion.
     The government had argued that the ban on openly gay troops strengthened military readiness and unit cohesion, but Phillips noted that the military’s enforcement of the Don’t Ask Don’t Tell Act dropped significantly during the wars in Afghanistan and Iraq, suggesting that the policy actually undermines the government’s purported goals.
     Although President Obama strongly supports overturning the policy, he wants it done through Congress, not the courts.
     In its application for a stay, the administration said it has established a “high-level working group” to conduct a comprehensive review of “how best to implement a repeal” of the Don’t Ask Don’t Tell Act.
     The group is expected to deliver its report to Defense Secretary Robert Gates on Dec. 1.
     The government wants the courts to halt Phillips’ nationwide injunction until it has had time to come up with a plan to change the policy “in a prudent manner.”
     Wednesday’s 9th Circuit ruling means the policy will be in place until further action by the federal appeals court.
     “We are disappointed that the appeals court has allowed this unconstitutional and discriminatory policy to continue for even one more day, despite the district court’s order to stop enforcement,” said James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project.
     “‘Don’t Ask, Don’t Tell’ has compromised the effectiveness of our military for far too long,” Esseks added. “We urge the DOJ to drop its efforts to appeal, and to let stand Judge Phillips’ order banning the policy.”

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