Examining the DOJ Request for a Stay; Appeal Notice Filed

Posted by Chris Geidner
October 14, 2010 4:28 PM |

The U.S. Department of Justice filed its request seeking a stay of U.S. District Court Judge Virginia Phillips's ruling in Log Cabin Republicans v. United States, as reported by Metro Weekly here. [UPDATE: DOJ also filed a Notice of Appeal today, formally announcing its appeal of the case -- noted in the stay filing documents -- to the U.S. Court of Appeals for the Ninth Circuit.]

This is a review of the documents filed and the details of the filing.

First and foremost, the government intends to appeal the ruling. From the declaration filed today in accordance with the motion requesting a stay pending appeal, Under Secretary of Defense for Personnel and Readiness Clifford Stanley writes:

I am aware of the Court's decision in this case that [10 U.S.C.] § 654 [-- the DADT law --] and the Department's associated regulations violate the First and Fifth Amendments of the Constitution.  In this declaration I will not address the merits of the Court's decision.  I submit this declaration to make the following point:  the Government intends to appeal the Court's decision.  During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas.  The magnitude of repealing the DADT law and policy is demonstrated by the Department's ongoing efforts to study the implications of repealing DADT, which I outline in detail below.

What's more, Stanley writes that, in part, this is done for the benefit of "gay and lesbian servicemembers." He writes:

Further, an injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty.  If the Court's decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court's decision and injunction.  Such an injunction therefore should not be entered before appellate review has been completed.

The reason why DOJ apparently believes an appeal is justified is referenced most directly in the Memorandum of Law's argument that a stay should be entered because "At A Minimum, This Case Raises Serious Legal Questions."

In this section, DOJ attorney Paul Freeborne writes:

DADT has been challenged myriad times since it was enacted in 1993, and several appellate courts have upheld the constitutionality of this statute. Indeed, the Ninth Circuit in Witt rejected as inappropriate a facial challenge to the statute. Witt v. Dep’t of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008).  Therefore, at a minimum, this Court’s opinion holding DADT facially unconstitutional presents serious legal questions that favor entering a stay pending the resolution of this case by appellate courts.

Later, Freeborne details themilitary's claim that an immediate end to DADT as required by the injunction "Requires A Precipitous Change In Policy That Threatens the Public Interest in A Strong Military."

He writes:

Developing proper training tools regarding the end of DADT and communicating any new policy effectively to the millions of personnel at issue will take time and effort and cannot happen immediately, especially for commanders and servicemembers serving in theaters of active combat. The failure to provide proper training and effective communication regarding any change in the enforcement of DADT would be disruptive to military commanders and to servicemembers as they attempt to carry out their mission and military responsibilities, especially in active theaters of combat. The Department is actively engaged in developing educational and training tools and a plan for effective communication so as to allow the orderly discontinuation of DADT, and the injunction should be stayed so that process can be completed.

The documents filed by DOJ today:

Come back to Poliglot for further developments ...

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