Military gay ban continues
on Nov 1, 2010 at 7:36 pm
The military’s policy under a 1993 law of barring gays and lesbians from serving openly in the armed services may continue in effect, a federal appeals court panel ruled Monday. If that decision is not disturbed by a higher court, the policy would stand at least into next March while its constitutionality is reviewed in federal court. The Ninth Circuit Court’s partially divided decision can be found here.
Finding that it did not need to hear oral argument, the panel accepted the government’s written arguments that a federal judge’s order barring any continued enforcement of the policy would seriously disrupt military operations and cause confusion in the ranks. One judge on the panel dissented, saying he would leave intact the part of the federal judge’s order that barred the Pentagon from actually discharging anyone under the policy; otherwise, the rest of the policy could stand, under that judge’s view.
The panel also concluded that a briefing schedule previously set would not change. Under that timing, the government’s merits brief against the ruling by U.S. District Judge Virginia A. Phillips would be due Jan. 24, the brief of the challenging group — the Log Cabin Republicans — would be due on Feb. 22, and the government’s reply no more than 14 days after that. Under that timetable, a final decision would not be likely to emerge until at least sometime in March, and perhaps later.
The challengers to the policy have two options remaining if they want to attempt further to block the policy: they can ask the full Ninth Circuit to lift Monday’s stay order, or they could try to get the Supreme Court to set it aside. A plea to the Supreme Court would go initially to Justice Anthony M. Kennedy, the Circuit Justice for that part of the country.
Monday’s order was approved by Circuit Judge Diarmuid F. O;Scannlain and Senior Circuit Judge Stephen S. Trott. Dissenting was Circuit Judge William A. Fletcher. Judge Fletcher, besides saying he wanted to leave one part of Judge Phillips’ order in effect, said he would have preferred to have oral argument on the stay issue, but noted that the Court’s orders require that at least two judges must seek such a hearing. The other judges said that “both sides have provided us with satisfactory information and argument to make this decision.”
The same panel on Oct. 20 had temporarily blocked Judge Phillips’ worldwide ban on enforcing the policy, until it could consider the issue fully. After doing so, it issued Monday’s order.
While President Obama and the Pentagon’s top officials want to end the so-called “don’t ask/don’t tell” policy, they prefer to have Congress to do so, and thus the Administration has resisted the effort to get the law and the policy struck down in federal court. With the increase that has been widely predicted in Republican seats in Congress after Tuesday’s election, it may make it even harder than it had been previously to gather the votes in Congress to end the policy legislatively.
In Monday’s order, Judges O’Scannlain and Trott noted the government’s arguments against interrupting the policy while the Pentagon works on ways to wind it down, should Congress allow that to occur. Then, the panel majority went on to cite “three reasons that persuade us to grant a stay pending appeal.”
The first was that acts of Congress are presumed to be constitutional, and that works in their favor. The second was that courts owe a special duty to defer to Congress when it passes laws dealing with the military services. On that point, the panel majority said that individual rights have to be respected, but that the duty to defer to the lawmakers’ views does require “careful consideration before final judgment.”
The majority’s third argument was that Judge Phillips’ decision was “arguably at odds” with the decisions of at least four other federal appeals courts rejecting challenges to the “don’t ask/don’t tell” policy. While the panel order noted that the Log Cabin Republicans had challenged those other rulings as “irrelevant” (mostly because most of those rulings came before the Supreme Court had expanded gays’ constitutional rights in Lawrence v. Texas in 2003), the majority said that only a “final merits decision” by an appellate court could make that judgment.
Responding to Judge Fletcher’s argument that the panel should keep intact the part of Judge Phillips’ order forbidding any discharges of gays or lesbians who violate the policy, the panel majority said that could have “unintended consequences” because it would encourage violations of the policy in the meantime, and, if the policy were ultimately upheld, “would leave the persons involved in a precarious position.” The military could resume discharges if the policy survived constitutional attack, it noted.
Judge Fletcher said in his dissent that suspending only discharges would allow the military to continue during the appeal to follow existing recruiting practices, and would not require a change in personnel manuals or in other practices except no discharges could occur. If the hardship of a discharge is removed, the dissenting judge added, then “the balance of hardships would tip sharply” in the Pentagon’s favor.
