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National Law Journal (subscription only): A federal judge has ruled that lawyers who represented the Log Cabin Republicans in a constitutional challenge to the military’s Don’t Ask, Don’t Tell policy deserve attorney fees and expenses, even though a federal appeals court ultimately vacated her ruling in the organization’s favor.
The case, Log Cabin Republicans v. U.S. (Circuit dockets 10-56634 and 10-56813), was under review in the Ninth Circuit when the Obama Administration, responding to the repeal of the policy against gays and lesbians serving openly in the military services, asked the panel to declare the case moot and to vacate Judge Phillips’ decision against the ban.
Sonoran News: “Unelected judges should rule in accord with the Constitution, not according to their own personal policy preferences, as one judge here has rightfully noted,” said ADF Litigation Staff Counsel Daniel Blomberg. “Every federal appellate court to consider precisely this issue has found no fundamental right to engage in homosexual conduct while employed in the military. Since the law was reasonably related to Congress’s goal of military cohesion, those courts always upheld the law as constitutional.” Circuit Judge Diarmuid F. O’Scannlain agreed . . .
SCOTUSblog: Sept. 20 was set as the end date after President Obama and Defense Secretary Leon Panetta in July officially informed Congress that the services were ready to implement Congress’s repeal of the “don’t ask/don’t tell” law. This memo on repeal was released by the Pentagon early Tuesday morning. The text of the repeal law can be read here.
Findlaw: The military’s ban on openly gay troops will be lifted within weeks, but that’s no guarantee the law cannot be re-enacted someday.
SCOTUSblog: Giving the Obama Administration less than what it requested, the Ninth Circuit Court puts back into effect the “don’t ask/don’t tell” policy, but bars any discharges of gays and lesbians for violating the policy.
“Pentagon chief Leon Panetta has decided to end the ban on gays serving openly in the armed services and certify that repealing the 17-year-old prohibition will not hurt the military’s ability to fight, officials said Thursday.”
The Ninth Circuit Court on Friday evening put back into effect temporarily the U.S. military’s ban on gays and lesbians from serving openly in the services, but also barred any investigations, penalties or discharges of anyone to carry out that policy.
Houston Chronicle: A federal appeals court has issued an order asking the U.S. government to state whether it will defend the constitutionality of the military’s 17-year ban on openly gay troops
OneNewsNow.com (7/9): Daniel Blomberg is the litigation staff counsel with the Alliance Defense Fund. “…This decision…effectively stops the law from being in effect nationwide, worldwide,” says Blomberg. “So during a time of international conflict, our military is being forced by the judicial system — and unfortunately by the Obama administration’s Justice Department — to implement a change rapidly [that] they’re not prepared to implement. It’s a very disturbing development for our military.” [more]
Marine Corps Times: The Pentagon has ordered a halt to all separations of gay troops under “don’t ask, don’t tell” and will begin accepting applications from prospective recruits who identify themselves as homosexuals.
Lambda Legal: Lambda Legal, Knights Out, OutServe, the Human Rights Campaign, and the Anti-Defamation League today filed a friend-of-the-court brief with the U.S. Ninth Circuit Court of Appeals urging it to uphold a lower court ruling that declared “Don’t Ask, Don’t Tell” (DADT) unconstitutional. The brief was filed in support of a case originally filed in 2004 by the Log Cabin Republicans.
Sacramento Bee: In a brief filed Monday in the 9th U.S. Circuit Court of Appeals in San Francisco by lawyers for the group called Log Cabin Republicans, the group termed keeping the policy in place as “absurd.”
ADF attorney Gary McCaleb at the Speak Up Movement Church Blog: That is why ADF and its allied attorneys just filed a “friend of the court” brief in the Log Cabin Republicans v. United States of America case, to inform the court that changing the law will risk the religious freedom of chaplains and service members. This case, which is now before the U.S. Court of Appeals for the Ninth Circuit, is a direct attack on the law which prohibits open homosexual behavior in the military.
Several chaplaincy groups are urging the U.S. Court of Appeals for the 9th Circuit to reverse a district judge’s decision to strike down part of a federal military readiness law that prohibited openly practiced homosexual behavior.
SCOTUS Blog: “The Obama Administration, making only a tepid defense of the military’s ban on gays serving openly in the services, urged a federal appeals court on Friday not to issue any ruling and thus allow time for the Pentagon to carry out the new law passed by Congress that will repeal the ban, probably sometime this year. The 48-page brief filed in Log Cabin Republicans v. U.S., in the Ninth Circuit Court, is here.”
SCOTUS Blog: The Ninth Circuit Court has turned down the Obama Administration’s request to put on hold the case testing the constitutionality of the “don’t ask/don’t tell” law restricting the right of gays to serve in the military. In a one-page order, issued Friday, however, the Circuit Court added another month to the time before the briefing schedule is to begin. That was the Administration’s alternative plea.
SCOTUSblog: “The Justice Department on Friday asked the Ninth Circuit Court either to put on hold the constitutional case on gays in the U.S. military, or else give it more time to file its written arguments — a plea that would stretch out the briefing schedule another month. The request came in a new filing (found here) after a gay rights advocacy group had opposed any further delay in the appeals court process.”
SCOTUSblog: “The Obama Administration has asked the Ninth Circuit Court to put on hold, for 90 days or more, its review of the constitutionality of the 1993 federal law that bars gays and lesbians from serving openly in the military. In a motion filed Wednesday, Justice Department lawyers said the Pentagon needs time to implement the new law that will repeal the ban but not immediately.”
The Bilerico Project (“daily experiments in LGBTQ”): “The underwritten story of the DADT repeal is how significant a role the Log Cabin Republicans played in lobbying GOP members of Congress. The question is now – will LGBT Democratic progressives seek common ground with their partisan counterparts to move the equality agenda forward in 2011?”
Associated Press: “Pending lawsuits against the military ban on openly gay troops will remain in place for now, even though Congress has voted to repeal the ‘don’t ask, don’t tell’ policy.”
CitizenLink: “We all knew that President Obama’s Department of Justice was doing everything it could to undermine federal law prohibiting open homosexuality in the military, as well as the Defense of Marriage Act. But to hear DOJ Assistant Attorney General Tony West openly admit that they are vetting their arguments with their ‘liaison’ to the gay activist community, and promising not to make any ‘offensive’ arguments, goes beyond the pale.”
Mike Dorf writing at Dorf on Law: “Federal district courts have recently taken action on gay rights on three fronts: (1) Perry v. Schwarzenegger found a right of same-sex couples in California to marry; (2) Gill v. Office of Personnel Management and its companion case invalidated the provision of the Defense of Marriage Act (DOMA) that denies federal recognition to same-sex marriages that are legal under state law (there Massachusetts); and (3) Log Cabin Republicans v. United States invalidated Don’t-Ask-Don’t-Tell (DADT). Each case is currently pending on appeal. The issue presented in each case will probably make it to the Supreme Court within the next few years. Does the order in which they arrive matter? Possibly.”
Lyle Denniston reports at SCOTUSblog: “The Obama Administration, continuing its defense in court of the ban on gays and lesbians serving openly in the U.S. military, urged the Supreme Court on Wednesday not to interrupt that policy while its constitutionality is being tested in lower federal courts. A California federal judge’s worldwide order against enforcement of the 1993 law and Pentagon regulations should not be allowed to take effect in the meantime, the government contended. The opposition document in Log Cabin Republicans v. U.S. (application 10A465) is here.”
Associated Press: “A Republican gay rights group is asking the U.S. Supreme Court to allow a California trial judge’s order barring enforcement of the ‘don’t ask, don’t tell’ policy to go back into effect.”
National Law Journal: “Efforts to retain the military’s ban on openly gay service members scored two big wins this week when a federal appeals court on Monday halted an injunction barring its enforcement and voters on Tuesday replaced members of Congress who had pushed for legislative repeal of the law.”
Ed Whelan writing at the Ethics and Public Policy Center: “The recent district court ruling that the ‘don’t ask, don’t tell’ law governing homosexuals in the military is unconstitutional triggered speculation that the Obama administration, which is eager for Congress to repeal ‘don’t ask, don’t tell,’ might choose not to appeal the ruling. That speculation proved mistaken — an appeal has been filed — but it provides an apt occasion to explore the principles that ought to govern a presidential administration in deciding whether to defend a federal law that it disfavors.”
Washington Blade (“lgbtq” news source): “Rep. John Boehner (R-Ohio), who is expected to become Speaker of the House in January, agreed to a request by the gay GOP group Log Cabin Republicans not to penalize House Republicans who voted in May for repeal of ‘Don’t Ask, Don’t Tell,’ according to the group’s leader.”
Lyle Denniston reports at SCOTUSblog: “A federal appeals court in California voted to allow the U.S. military to continue enforcing the 1993 law that bars gays and lesbians from serving openly in the military. One judge of the three-judge panel would have stopped any discharges under that policy, but otherwise would have allowed it to remain in effect.” | Order, Log Cabin Republicans v. U.S. (Nov. 01, 2010)
Dale Carpenter writes at the Volokh Conspiracy regarding the litigation in Log Cabin Republicans v. U.S.: “Military policy is an area where courts rarely intervene, even if the justifications for the policy are very thin (as they are for DADT) and even if similar government policies would be unconstitutional if applied to civilan life. The writing is on the wall for this litigation.”
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.
Ann Althouse links to the transcript and comments at her blog: “He wonders why the Log Cabin Republican are pursuing their court case, when they could instead try to get a few Republican Senators to vote for repeal. He says he doesn’t ‘understand the logic of’ using the courts when you could go to Congress, but of course he does. People conceive of their equality in terms of their individual rights — which don’t depend on the support of political majorities and supermajorities. As a Harvard-trained lawyer and sometime law professor, he knows that. He knows why people go to courts. I don’t buy his understanding of the logic. Or should I say his understandings of the logics?”
Fourth Estate Newspaper: “Federal Judge Virginia Phillips ruled the ‘don’t ask, don’t tell’ policy of the U.S. military be discontinued Oct. 12, which instituted a worldwide ban on enforcing the policy . . . According to Alexander Nicholson, executive director …
Lambda Legal: “Lambda Legal today filed a friend-of-the-court brief urging the U.S. Ninth Circuit Court of Appeals to leave in place pending appeal the injunction a federal district court judge issued against enforcement of the U.S. military’s ‘Don’t Ask, Don’t Tell’ (DADT) ban on gays serving openly in the armed forces, saying that the policy’s impact extends far beyond those in uniform and that continuing it would do irreparable harm to lesbian, gay and bisexual Americans.”
ADF Attorney Gary McCaleb writing at Speak Up Movement / Church: [T]he Department of Justice appealed that deeply flawed decision in Log Cabin Republicans v. Gates—a decision that should never have been made. The lower court should have honored the constitutional separation of powers that vests Congress and the President with control of the military . . . [T]he leftist homosexual advocacy group, Servicemembers United . . . deemed the government’s decision to appeal the Log Cabin case while not appealing the ADF case to be ‘incomprehensible.’ But to borrow a line from The Princess Bride with regard to a similar term, ‘You keep using that word. I do not think it means what you think it means.’”
ABC News: “‘I don’t know what is going through the [Obama] administration’s thought process on “don’t ask, don’t tell,”‘ Olson said. ‘It would be appropriate for them to say “the law has been deemed unconstitutional, we are not going to seek further review of that.”‘”
Associated Press writer Mark Sherman: “President Barack Obama opposes the Pentagon’s ‘don’t ask, don’t tell’ policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?”
Associated Press: “The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the ‘don’t ask, don’t tell’ law, at least for now.”
TIME / Swampland: “So just who is Judge Phillips? Elaine Donnelly of the conservative Center for Military Readiness has christened her the ‘supreme judicial commander of the U.S. military.’ Tony Perkins of the Family Research Council calls her ‘an activist judge playing politics with our national defense.’ But she is generally well-regarded in California legal circles, which was only as far as her reputation had spread until she ruled the military’s gay ban unconstitutional Sept. 9.”
“It comes down to changing the culture, and top brass say they need more time. The military has been long resistant and, at times, hostile to gays, and it draws much of its 2.4 million members from socially conservative parts of the country.”
International Business Times: “Judge Virginia Phillips of California’s federal court rejected the U.S. government’s request to stay her injunction, Monday, a move which is likely to prompt the government to turn to the 9th U.S. Circuit Court of Appeals or even the Supreme Court to overturn her ruling.”
AP: “A federal judge said on Monday that she’s inclined to deny a government request to delay her order that immediately stopped the military from enforcing its ban on openly gay service members.”
Boston.com (AP): “U.S. District Judge Virginia Phillips said she’ll hear from both sides Monday afternoon in her courtroom in Riverside before deciding whether to temporarily freeze the injunction she issued earlier this month that stopped enforcement of the 17-year-old policy.”
Lyle Denniston writing at SCOTUSblog: “Accusing the Obama Administration of “hypocrisy at its highest levels” for trying to keep in force the ‘don’t ask/don’t tell’ policy that the government opposes and wants ended, a gay-rights group told a federal judge on Friday that maintaining the policy even temporarily will weaken the military services and national security. Using strong and often accusing language on every one of its 12 pages of argument, the group — the Log Cabin Republicans — said the Administration ‘should be ashamed to be seeking’ that effect. (The document is here.)”
Windy City Media Group: “‘In the very same week, the administration says that it absolutely must appeal a federal court’s decision on “Don’t Ask, Don’t Tell” while it orders the Justice Department not to appeal a federal court’s ruling in favor of the conservative Alliance Defense Fund. This contradiction is simply incomprehensible and insulting,’ said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.”
LezGetReal: “A case brought by the Alliance Defense Fund has removed the restriction on small gatherings under a few dozen wishing to congregate at national parks, including the National Mall in DC. This case, which the Administration will not be appealing makes a lie out of the fact that the Justice Department has to appeal the ruling by Judge Virginia Philips regarding Don’t Ask, Don’t Tell.”
AP: “The Defense Department on Friday warned gay troops that if they disclose their sexual orientation now, they could still get in trouble.”
Findlaw (AP): ”The “don’t ask, don’t tell” appeal will do little to help Democrats trying to inspire those voters and hold back a Republican tide on Nov. 2.”
Ed Whelan writes at Public Discourse: “The Obama Administration has chosen to place political considerations over a proper defense of the Don’t Ask, Don’t Tell law.”
“According to the Times article, ‘recruiters turned [the ex-sailor] away hastily, saying they had no knowledge of any injunction,’ Log Cabin lawyer Dan Woods wrote in a letter Thursday to the Justice Department.”
One News Now: “Elaine Donnelly, president of the Center for Military Readiness, argues that a ruling based on “don’t ask, don’t tell” is flawed — and points out that Phillips’ ‘short-sighted conclusion’ came after eight days of “one-sided testimony from gay activists.”
Religion Clause Blog: “Baptist Press yesterday interviewed retired Chaplain (Col.) Keith Travis who is now chaplain team leader for the North American Mission Board, who said: ‘In order to best serve soldiers, our chaplains need to be able to practice their faith freely. Under this order, there’s a question as to whether our chaplains would be able to offer the full counsel of Scripture to soldiers who seek their guidance.’”
CNSNews: “The White House weighed a quick appeal of a judge’s order abruptly allowing gays to serve openly in the military as Pentagon chief Robert Gates warned on Wednesday of “enormous consequences” for men and women in uniform if the ruling stands.”
Christian Post: “Conservatives are calling on the Obama administration to appeal a federal judge’s decision that the military must halt the enforcement of the “don’t ask, don’t tell” policy.”
October 2010: Log Cabin Republicans Win Constitutional Ruling Against Military Ban
“Based on the evidence submitted, the court concluded that LCR proved the Act does not further military readiness, but also that the Act: contributes to recruiting shortages; causes discharge of otherwise qualified servicemembers with critical skills; contributes to lower admission standards; that the delays in investigations until servicemembers return from combat deployment show that the Policy is not necessary to further military readiness or unit cohesion; that it harms rather than furthers unit cohesion and morale; and that military housing already provides sufficient protection of privacy of servicemembers. Therefore, the court held that the Defendants failed to show the Act was necessary to significantly further the Government’s important interests in military readiness and unit cohesion, and found the Act violated substantive due process under the Fourteenth Amendment.”
Michael Foust reports at Baptist Press: “The Obama Justice Department is asking a federal judge to keep the military’s Don’t Ask, Don’t Tell policy on homosexuals in place, arguing that rulings in other circuits upholding the ban prevent the judge from issuing a nationwide injunction against the 17-year-old policy.”
“But Obama’s lawyers asked in Thursday’s motion that Phillips refrain from applying her ruling nationally, or to the military overseas. Instead, the Department of Justice argued that the immediate effect of her decision should be to prohibit the military from expelling openly gay service members who belong to the Log Cabin Republicans.”
NPR: “A gay rights group will ask a federal judge Thursday to order the Pentagon to stop enforcing ‘don’t ask, don’t tell,’ the law barring gays from serving openly in the military . . . ‘We want her to block any further enforcement or application of don’t ask, don’t tell wherever we have military operations — not just in California, not just in this country but wherever we have military bases anywhere in the world,’ [attorney Dan Woods] said.”
Ken Klukowski writing in The Washington Examiner: “There are those seeking to move the Republican Party away from these issues, and even trying to define conservatism as being concerned exclusively with economic and reach-of-government issues. These decisions [in Perry and Log Cabin Republicans] put the lie to that notion. An agenda-driven judge is an agenda-driven judge. A judge who is willing to ignore the plain meaning of the Constitution in one case doesn’t think twice about doing it in another case. Is Obamacare unconstitutional? You bet it is. But a judge who is willing to declare a constitutional right to same-sex marriage or a right to serve in the military is also willing to declare a constitutional right to government healthcare.”
Law.com: “A federal district judge in California declared the military’s ‘Don’t Ask, Don’t Tell’ policy unconstitutional late Thursday. The lawyer who won the case is a White & Case commercial litigator who had worked on just one prior pro bono matter. That lawyer, Dan Woods, spent some time Friday reflecting on a decision six years in the making.”
” . . . Given that President Obama has sought to repeal the policy through legislation before Congress, it’s possible the government could opt not to appeal, said Erwin Chemerinsky, dean of the University of California, Irvine School of Law, a constitutional law expert.”
U.S. District Judge Virginia Phillips ruled Thursday that the prohibition on openly gay military service members was unconstitutional because it violates the First and Fifth Amendment rights of gays and lesbians.