subject: Appeals Court Stays Order That Banned Don't Ask, Don't Tell [print this page] Appeals Court Stays Order That Banned Don't Ask, Don't Tell
On October 12, US District Court Judge Virginia Phillips ordered the US Government to immediately terminate the Don't Ask, Don't Tell policy which it has been using to discharge openly lesbian or gay members of the US Armed Services. In her final order on the issue, Judge Phillips refused the government's request to stay her order pending any appeal that the government might make to a higher court. Among other things, Judge Phillips said it was unlikely that her opinion would be overturned by the appeals court.
On November 1, a three Judge panel of the 9th US Circuit Court of Appeals issued a stay of Judge Phillips' order. It allowed the government to continue enforcing the Don't Ask Don't Tell policy and to continue proceedings against any current service members who have violated the policy.
The appeals court contradicted Judge Phillips' assumption that the government was unlikely to win on appeal. It noted that "the district court's analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal". In other words, the appeals court was claiming that four other US Courts of Appeal have ruled in favor of Don't Ask Don't Tell.
The 9th US Court of Appeals gave two other primary reasons for putting Judge Phillips' order on hold until the appeals court has had time to fully consider the issue.
First of all, it said the courts have traditionally assumed that acts of Congress are constitutional. When considering requests to stay orders that overturn an act of Congress, appeals courts have traditionally "accorded great weight to the decisions of Congress"..
They add that, "These principles do not mean, of course, that the individual rights guaranteed by our Constitution have no place in this calculus, but they do counsel careful consideration before final judgment".
In addition, the three judge panel said that this deference to acts of Congress is at its at its highest level in Congressional acts under its authority to raise and support armies. The panel asserted that "Courts are ill-suited to second-guess military judgments that bear upon military capability and readiness."
The three judge panel said it tended to agree with the government's assertion that the district court's injunction does not permit sufficient time for appropriate training about ending the ban to occur, especially for commanders and servicemen serving in active combat.
However, the government's appeal will be considered at greater length by the 9th US Circuit Court of Appeals in the near future. The following schedule has been set for that process.
The government's full brief, explaining why it thinks Judge Phillips' order should be overturned is due by January 24, 2011. The answering Brief, from Log Cabin Republicans, is due February 22, 2011. (Note: It is the Log Cabin Republicans who sued to overturn Don't Ask Don't Tell.) The government can reply to the Log Cabin Republicans' brief. If it does so, that reply must be delivered to the appeals court no later than 14 days after the Log Cabin Republicans' answering brief.
It is worth noting that, if the November 2 elections turn out as expected, then the Republican Party is likely to take control of at least the US House of Representatives. In that case, it is highly unlikely that the House of Representatives will enact legislation overturning the Don't Ask, Don't Tell policy.
The House did pass such a bill earlier this year. But that bill was never approved by the US Senate. And all legislation, of the current session of Congress, not passed by both houses of Congress, and signed by the President, dies at the end of this year. So, an entirely new bill would have to be approved by both houses of Congress. As noted, that is not likely to happen with the Republicans controlling one or both houses of Congress.
You may read a full copy of the appeals court's stay of Judge Phillips' order by clicking on the link at the end of this article. Then click on the link at the bottom of the web based version of this article.
Here is the link to get you started: http://www.calcomui.org/nwsflsh110210.html
