U.S. Asks 9th Circuit to|Halt ‘Don’t Ask’ Decision | Courthouse News Service
Wednesday, November 29, 2023
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U.S. Asks 9th Circuit to|Halt ‘Don’t Ask’ Decision

(CN) - The Obama administration on Wednesday asked the 9th Circuit to halt a federal judge's order barring the U.S. military from enforcing its 17-year ban on openly gay troops.

The government filed a motion for an emergency stay one day after U.S. District Judge Virginia Phillips refused to halt her injunction pending appeal.

Justice Department lawyers argued that the Oct. 12 injunction "threatens to disrupt the ongoing efforts to fashion and implement policies to effect any repeal" of the Don't Ask Don't Tell Act, which requires the military to discharge openly gay or lesbian service members.

"The President strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff," the government argued in its 9th Circuit motion.

"Although the Administration has called for a repeal of the statute, it has made clear that repeal should not occur without needed deliberation, advance planning, and training."

President Obama has said the law should be repealed by Congress, not through a court order. Efforts to repeal the Clinton-era policy stalled in the Senate this fall with a Republican filibuster.

Judge Phillips said the policy "infringes on the fundamental rights of United States servicemembers" and harms military readiness and unit cohesion -- the very reasons cited by Congress for enacting the law in 1993.

Phillips refused to stay her order on Tuesday, prompting the government to seek an emergency stay in the 9th Circuit.

The Obama administration wants the federal appeals court to temporarily block Phillips' injunction until the court has fully considered the motion for a stay pending appeal.

"A stay pending appeal would obviate the confusion and uncertainty that might be caused by temporary implementation of the district court's injunction, with the looming possibility that the statutory policy would be reinstated on appeal," the government argued.

Phillips rejected the notion that her injunction would cause "confusion and uncertainty," and said it was more important to protect the rights of service members.

"While defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the public interest of safeguarding fundamental constitutional rights," she wrote.

The 9th Circuit is expected to act on the emergency motion later today (Wednesday).

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