Responding to the two filings on Thursday evening, July 14, by the Department of Justice in the Log Cabin Republicans v. United States challenge to "Don't Ask, Don't Tell" -- filings that asked for the stay on the injunction of DADT enforcement to be reinstated by "close of business" today -- lawyers for LCR today filed a motion before the U.S. Court of Appeals for the Ninth Circuit arguing strongly that the extraordinary request should be denied.
Writing that the "on-again, off-again status of the District Court's injunction benefits no-one and plays havoc with the constitutional rights of American servicemembers," LCR lawyers today write that the government's request should be denied because "no reason is given" for the request for the temporary, administrative stay that the government is seeking while its larger request that the court reconsider its July 6 decision to lift the stay is decided. Additionally, LCR lawyers write, "the underlying motion for reconsideration will likely be denied."
LCR states that "[t]he five-page declaration of Major General Steven Hummer, signed yesterday, is conspicuously silent as to any actual harm to the military that has occurred since July 6, as opposed to speculative harm in the future."
Stating that the July 14 filings "merely restate the same arguments that [the DOJ and DOD] have made" previously and that, therefore, the motion to reconsider the lifting of the stay is likely to be denied, LCR argues that an administrative stay would then result in more "on-again, off-again" changes after the motion to reconsider is decided. "The parties, and thousands of gay and lesbian servicemembers now serving honorably but in silence," LCR's attorneys write, "would be left whipsawed, wondering from day to day what the current state of their constitutional rights might be."
In concluding, the lawyers write, "American servicemembers' constitutional rights are not a ping-pong ball to be paddled back and forth while this appeal is pending."
As noted, the government has requested that the Ninth Circuit take action on its request for an administrative stay by the close of business today.
[UPDATE @ 8:10P EASTERN: Close of business came and went with no response from the Ninth Circuit.]
[UPDATE @ 10:45P EASTERN: Ninth Circuit issued an order. READ ABOUT IT HERE.]
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In related news that is addressed somewhat in the LCR filing but for which Metro Weekly also obtained an explanation, Pentagon spokeswoman Eileen Lainez explained why Marine Corps Major Gen. Steven Hummer's declaration in Thursday's filing stated that there only had been one DADT discharge since the signing of the Don't Ask, Don't Tell Repeal Act. This appeared to contradict previous military statements that three or four such separations had been approved.
"As confirmed to you previously, SECAF approved four AF separations," she wrote. "However, only one -- [Air Force secretary] approval date of April 29 -- has separated. The other three were in various stages of the separation process when the stay was lifted, and so those separation actions have been suspended."