The temporary stay that the three-judge motion panel of the U.S. Court of Appeals for the 9th Circuit issued in Log Cabin Republicans v. United States will remain in place pending the 9th Circuit's decision of the appeal, by a 2-1 vote of the court's motion panel released today. Judges O'Scannlain and Trott voted to continue the stay in full. Dissenting (in part), Judge Fletcher favored allowing District Judge Phillips's order to go into effect with respect to blocking all pending discharges under the don't ask, don't tell policy while the case is on appeal, while staying the order with respect to all of its other potential applications. He also argued that the panel would have benefited from holding a hearing on the government's application for a stay, rather than deciding matter based on written submissions.
The background is that on October 12, U.S. District Judge Virginia Phillips entered an order enforcing her decision that the DADT policy, which bars openly gay people from serving in the Armed Forces, is unconstitutional. As framed by Judge Phillips, the order commanded the Defense Department to cease enforcing the policy entirely. The government quickly petitioned the 9th Circuit to stay the order temporarily while consider the government's application to stay it pending appeal, and the motion panel quickly issued the temporary stay, ordering submission of briefs by October 25. There were reports last week that their ruling on the aplpciation would be issued on Friday, but in the event it did not emerge until today.
The government's main argument in support of a stay, apart from its ritualistic assertion that Phillips's decision was wrong on the merits, is that time is needed to adopt and carry out the policy changes that would be necessary for an orderly change of policy on military service by openly gay people. The majority specified four reasons for continuing the stay pending appeal.
1. The case raises "serious legal questions".
2. "Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal."
3. "Judicial deference … is at its apogee when Congress legislates under its authority to raise and support armies." (For this point, the court cites Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006), the Supreme Court's decision rejecting a constitutional challenge to the Solomon Amendment, which barred federal funds for schools that exclude military recruiters.)
4. "The district court's analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth." The court said that "principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area." That being the case, said the court, a district court from within the 9th Circuit should not issue an order barring enforcement of a federal statute everywhere when its constitutionality has been upheld in four other circuits. That would mean Judge Phillips is telling the government that it can't enforce the statute in those other circuits. "To hold otherwise would create tension between circuits and would encourage forum shopping."
The court called the government's argument that the "lack of an orderly transition in policy will produce immediate harm and precipitous injury" as "colorable" and "convincing." "We also conclude that the public interest in ensuring orderly change of this magnitude in the military – if that is what is to happen – strongly militates in favor of a stay." And, the court notes, if the Administration is successful in getting Congress to repeal the policy, the case will become moot.
Responding to Judge Fletcher's argument that discharges should be suspended pending the appeal, the majority asserted that "this 'carve out' is inconsistent with the stay itself and would be subject to the vagaries of unintended consequences. It could have the unfortunate effect of encouraging violations of Section 654 in the interim, which, if the statute were ultimately to be found valid (an issue on which we express no opinion), would leave the persons involved in a precarious position, because even Appellees admit taht the government could resume discharges if the district court judgment is reversed."
The court conluded that "prudence mandates restraint until the final judgment is rendered."
Fletcher argued in dissent that if discharges were suspended, he would agree that "the balance of hardships would tip sharply in favor of the Defendants," so he sought a partial stay.
Where does this leave us? DADT remains in full force and effect pending appeal of the decision on the merits. Unlike the Prop 8 case (Perry v. Schwarzenegger) which was put on an expedited appeal schedule when the panel stayed Judge Walker's ruling pending appeal, and which is slated for oral argument on December 6, this case is not, so far as I know, on an expedited schedule, so the hearing most likely will not take place until sometime next year. Which definitely means that if the repeal attached to the Defense Authorization Bill does get passed during the lame duck session of Congress, the Pentagon report comes out on December 1, and the president and Pentagon certify readiness to proceed, this could be moot before an oral argument could be held in the case.
A bigger question is presented if it turns out the only way to get the Authorization bill through Congress is to drop this provision. In that case, what is the likelihood that a DADT repeal can get through the new Congress. Tomorrow night we'll know whether control of the House has passed to the GOP; we may not know about which party controls the Senate until later, given the closeness of several races. In any event, a Congress in which one or both houses are controlled by the GOP is not a likely place for DADT repeal… in which case all hopes will then ride on this case.