9th Circuit Lifts Stay On Injunction Against "Don't Ask, Don't Tell"

Yesterday in Log Cabin Republicans v. United States, (9th Cir., July 6, 2011), the U.S. 9th Circuit Court of Appeals lifted a stay it had previously granted in the appeal of a challenge to the constitutionality of the military's "Don't Ask, Don't Tell" policy.  Last October, a California federal district court found the policy unconstituitonal and permanently enjoined its enforcement.  (See prior posting.)  In November, the 9th Circuit issued an order staying the injunction pending appeal. The U.S. Supreme Court refused to vacate the stay.  Then in December, Congress passed and the President signed a law repealing "Don't Ask, Don't Tell", but providing that the policy will not end until 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. (See prior posting.)  In yesterday's decision lifting the stay, the court said:

Appellants ... state that the process of repealing [DADT] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants ... can no longer satisfy the demanding standard for issuance of a stay.

CNN, reporting on yesterday's decision, quotes a Pentagon spokesman as saying that the statutory certification was just weeks away anyway. He added that the military "will of course comply with orders of the court, and are taking immediately steps to inform the field of this order."