DOJ Files Emergency Stay Request with Ninth Circuit on ‘DADT’

The Department of Justice has filed an emergency request with the Ninth Circuit Court of Appeals requesting a stay on the injunction barring enforcement of DADT. The DOJ requests the Ninth Circuit to enter the stay today.

Writes Chris Geidner at MetroWeekly:

The request likely will be heard by the "motions panel" for October, which is Judges O'Scannlain, Trott, and W. Fletcher.

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.

DOJ then argues, "The government has also shown a likelihood of success in its argument that the district court erred in ruling § 654 [the DADT law] unconstitutional on its face."

Finally, DOJ argues that the remedy — the worldwide injunction against all enforcement of DADT — is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

Said CNN legal analyst Jeffrey Toobin

"They are in a very bizarre position, frankly of their own making," said CNN senior legal analyst Jeffrey Toobin…

…If the 9th Circuit overturns Phillips' ruling and Congress does not take any action, then don't ask, don't tell could be back.

"And the Obama administration would be responsible for that," Toobin said.

Here's the document (via Politico):



  1. says

    DADT is now officially Obama’s policy. It was dead, and now he’s brining it back. No one can blame Bill Clinton anymore for the continuing existence of the bigoted policy. Obama owns it now. He is responsible for blatant bigotry and discrimination. It is shameful.

  2. Tim says

    If Obama leaves this policy hanging and nothing happens in the lame duck session of congress, the Republican controlled house and possibly senate could simply pass another law that would circumvent the actions of this lower court. It is a good thing that this is going to get appealed to the circuit court, and it is necessary to enact a stay, regardless of whether one calls it “emergency” or not. This will help ensure a rather easy-to-decide court case for the SCOTUS. It was also important that some people, notably Dan Choi, get in “under the radar” so to speak while the injunction lasted. This can be used as further evidence that gays don’t harm the military one bit when the SCOTUS decides to uphold Phillips’ ruling.

    Also, please stop infiltrating the comments section, Republicans. It’s getting old.

  3. Robert says

    To Tim: I am most assuredly not a Republican–I’m a staunch, lifelong Democrat who worked tirelessly to elect Barack Obama–and I wholeheartedly agree with the above comments. The president’s so-called plan to overturn DADT is simply incoherent.

    There was no action at all when the Democrats had a filibuster-proof Senate majority. Harry Reid introduces the bill a few weeks out from the mid-terms, when the likelihood of any Republicans to vote to end a filibuster is almost nil. The president’s justice department could file an appeal saying they agree with the ruling but would like a higher court to confirm it, but they don’t–they still maintain this dreadful law is constitutional, as they do with DOMA. And I don’t think there are many gay soldiers who take comfort in the John Roberts Supreme Court deciding their fate.

    The president has had ample opportunity to act to overturn this law. He could have issued stop-loss measures. He could have actually have publicly pressured Senators to overcome the filibuster. Instead, he ceded ground to the Secretary of Defense. The constitution says that the president is Commander-in-Chief. But Barack Obama, like Bill Clinton, is clearly intimidated by the military.

    Yes, Republicans have been outrageously obstructionist on all of the president’s attempt to shape policy. But that should not have surprised anyone, especially at this point. So I am saddened to say I agree with the above comment that this dreadful law–brought to us by the failures of our last Democratic president–is now Barack Obama’s policy.

  4. Bob says

    Tim you contradict your own logic. It would be easier to show that no harm was done if the injuction is in place while this snakes up to the Supreme.

    There is no need for a stay if you are playing to lose. And there is certainly no need for an “emergency” stay.

    But of course there are several orders Obama could issue RIGHT NOW that would make all of this mute while we wait on the courts. You would think someone who is a CONSTITUTIONAL professor and has both houses of cogress could figure out a way to wield a bit more excutive power to get things accomplished. If Bush’s DoJ can justify torture you would think it would be pretty simple to just tell the military to stop prosecuting the gays.

  5. Matthew says

    Obama is not a fierce advocate for the LGBT community, he is a fierce enemy, there’s no getting around that fact. He’s proven that time and time again.

  6. says

    possibly senate could simply pass another law that would circumvent the actions of this lower court

    Are you for real? Oh wait, of course not. You’re a bot. But just for shits and giggles, how about explaining to me just how the senate is going to pass something that would cricumvent the courts? In their wildest dreams, no republican is predicting a 60 seat majority in the senate, which is what they would need to overcome a filibuster on such a proposal. They probably won’t even have a simple majority. So although the dems won’t be able to pass a repeal of DADT, Republicans arent going to be able to do anything either. So take your scaremongering talking points back to your OFA handler and ask for something a little bit smarter you little weasel.

  7. says

    what good is it going to do to call congress? they aren’t going to be doing anything on this issue for years, and besided, half of them won’t be there in two weeks. Call the White House and the DOJ. they’re the ones bringing back a policy from the dead that ruins the lives of gay people.

  8. glennmcgahee says

    Please stop kidding yourselves that Obama is on your side. Majorities in both houses of Congress and the Presidency were more than enough to get the job done. Next year, too late and Obama can blame Republicans. Pure politics. Meanwhile, we are stuck where we were. Don’t expect the Supremes to rule for us. When was the last time they stuck to the Rule of Law and the Constitution? Was it when they ruled Corporations and Unions were people who could contribute without limits to political campaigns?

  9. John says

    As you know, I have always been a fierce advocate for the Obama administration. Thus, it gives me great pride to say I believe the President has a realistic, doable, and well thought out plan. The plan is to let the new Republican controlled Congress kill the legislation, blame everything on them, delay any court action for a couple years, and then campaign on repealing DADT again in 2012.

    That’s the plan.

  10. Terry says

    Obama has lost my vote. I feel betrayed and can no longer support him. I am loyal to Gavin Newsom and Jerry Brown, they walk the walk and talk the talk. President Obama has betrayed us, there’s no other way to put it.

  11. says

    Obama has lost my vote.

    Obama doesn’t care about your vote. He doesn’t think he needs it. He only cares that straight allies and gays with deep pockets don’t find out he’s a homophobe. That’s what HRC is for. They keep the people that do matter under an umbrella of propaganda. They want them to think that people like you are crazy republicans. That’s part of what Tim’s job is to do.

  12. homo genius says


    The dems lost me way before Homophobama. Did they do anything during Prop 8? Did they lift a finger in 04 when the marriage amendements started popping up on ballots. No they told us to not rock the boat and just STFU until after “the most important election of our lifetimes”. If you raised concern you were poo-pooed as a “single issue” voter and warned against the evils of having republicans in control. Oh and then there was the 08 campaign where all the major candidates spoke of they believed marriage was between a man and a woman.

    Any progress we make comes from the courts. The dems have done squat for us.

  13. Tim W says

    Really Tim what drugs are you on? I want some. Most of us are long term Democrats who are sick of the BS by this administration. If the court found DADT unconstitutional how do you think the Republicans are going to change that. Plus as it was pointed out they will the lack the 60 votes to fight a filibuster plus our fierce advocate you are defending Obama could veto any bill. Of course since he has no balls we might have to worry about that. If the administration does not appeal DADT is gone done. It is his policy now I hope he wears it with pride as he loses the election in 2012.

  14. John Normile says

    Wouldn’t a class action have around 14,000 plaintiffs?…. I understand all the uphold the law etc..bullshit but if only the whitehouse said it thinks DADT is unconstitutional if only we had a real fierce advocate if only i voted for Hillary she’d probably have more balls….ugh

  15. says

    Obama is, news flash, not up for reelection this year, so he can’t lose our vote, or anyone else’s. And, if he is not reelected in 2012, the Republican president is not going to be on our side. Those are the facts.

    If we’re interested in results instead of merely complaining about Obama (who, like it or not, will be with us for several more years), we need to make it politically unfeasible for DADT to stay in place. That means keeping the pressure on those Dem’s who support us, or promise to support us, and keeping anti-gay Republicans out of office. That means letting supportive Dem’s know that if the DOJ continues to block the court decision repealing DADT, they had better get it repealed during the lame-duck session or we will be protesting their offices and not letting them forget how they screwed this up.

    I have no problem supporting the Dem’s in my state, because they are good candidates. (And the Democrats in my state made sure I have complete equality within my state.) But that doesn’t mean I can’t push them to push our “leader” to do better and fulfill his promises.

  16. says

    Uh, Obambots: you’ve NOT been paying attention…or have you and you’re choosing to simply LIE again?

    These are the legal FACTS: because of the nature of this ruling, based on a “facial challenge, if Obama did NOT appeal it, it would automatically BECOME the final word…the ban PERMANENTLY dead….with NO need for the Supremes to confirm it.

    Further, WHERE is the legal or moral justification for insisting they be allowed to CONTINUE discharges while they appeal…any more than there was any in Obama backing Gates’ demand that a BAN on discharges be stricken from the “compromise amendment” such that the law could now be repealed but discharges NEVER end?

    “The Huffington Post,” June 3, 2010:


  17. Tim NC says

    There is no need for a class action suit for this judge to issue a worldwide injunction.

    Her earlier court ruling found that DADT was unconstitutional “facially”. That means “on its face”. That means it is NOT just being applied to the named parties in the suit unconstitutionally. It means that there is no way for it to be applied to anyone constitutionally. Therefore, she has every right to issue a worldwide injunction barring DADT.

    For gawd’s sake. The lawyers at DOJ certainly know that to be the case. The judge was within her rights to issue a “facial” ruling. And, therefore, she was within her rights to issue a “facial” remedy.

  18. Chris Daley says

    One really interesting thing about this motion (and maybe past ones, I haven’t been paying attention) is that Tony West’s name is on it.

    Tony is the ridiculously pro-LGBT husband of the ridiculously pro-LGBT former Executive Director of the ACLU of Northern California. I would guess this strategy is causing them both no end of pain. Not as much as it is causing LGBT military personnel, of course; but I can’t imagine they are having an easy time of it.

    Folks calling Obama and his administration homophobic simply have no idea who is working for him. He is, hands down, the most pro-LGBT president with the most pro-LGBT administration in the history of our country.

    Without a doubt, his administration has bungled this repeal beyond belief. But it isn’t because of homophobia. I know that makes for an easy narrative, but it simply isn’t true.

  19. bobbyjoe says

    For some people, if Obama walked up and punched their grandmother in the face then pushed her down a flight of stairs, they’d claim that he was doing it to raise awareness of the abuse of the elderly or because it would start a court case that years from now would secure the rights of the aged.

    “Hip hip hooray!” they’d shout (no pun intended for grandma’s two broken hips). “Thank you, President Obama, for beating up my granny! Here’s a great big donation check so’s you can beat up other folks’s grannies, too!”

    Of course, their grandma would still probably be dead or in a coma, but, hey, twelve-dimensional chess and all.

  20. Tim NC says

    Chris Daley

    The entire reason for this bungling is because Obama handed his balls to Gates for this. Gates wants DADT to end on HIS TERMS only. And that means taking years to implement “open” service that ends up as segregated service in both facilites and career options.

    All you have to do is listen to the talking points that have been coming out of the military this entire year. Gates has said he will need discharges to continue for at least a year after repeal. They forced congress to take the non-discrimination language out of the legislation. They keep harping about the study and want action to wait until the study is done. That’s because the study is going to be used to justify both segregated facilities and segregated career paths. gates talked about needing to modify buildings just last week. Ans=d, someone else leaked info from the study saying that some areas of the military show great resistance to repeal while others don’t. There you have the two latest talking points to justify segregated facilities and careers.

    If they let the court ruling stand, they wouldn’t get their slow-walk implementation and their segregation.

    I would guess they will convince some republicans to vote for the “compromise” in the lame duck session in order to avoid having to comply with the court ruling. They will try to get the court to stop the legal process by claiming the repeal is already done.

    But, we all know that’s not true either. The compromise legislation in congress isn’t repeal at all. It just gives permission to the military to repeal DADT sometime maybe in the future if they feel like it.

  21. says

    Folks calling Obama and his administration homophobic simply have no idea who is working for him. He is, hands down, the most pro-LGBT president with the most pro-LGBT administration in the history of our country.

    If it walks like a duck, and quacks like a duck….

    You’re obviously one of those people who think they are a lot smarter than they are (people like that are insufferable), but forgive those of us who like to make judgments based on observations and evidence rather than supposed associations. When you actually have proof to back up your blind devotion, get back to us.

    Oh, and for the record, to be pro-lgbt, it might help to actually do something other than defend laws that enshrine our discrimination. And cocktail parties and egg rolls don’t count.

  22. Keith says

    While Obama and the DOJ certainly had a responsibility to argue the case at the lower federal court, once the decision was made and DADT overturned on constitutional principle, Obama and his administration could easily have stated that to pursue appeal would be meaningless since the law was blatantly discriminatory based upon the precedent of Lawrence v. Texas, and the rights granted to LGBT to free speech and equal protection. That would have been the best and most decisive way to handle this, but instead, he’s decided to file an emergency appeal, thus making DADT his law, and not Clinton nor Congress’s law. He didn’t defend the lower-court ruling allowing prosthletizing in National Parks because he stated it was unconstitutional and violation of free speech, and then turns around and does this. I think the man and his administration have completely lost their moral and legal compass.

  23. Chris Daley says

    Tim NC –

    you’re absolutely correct that Obama seems to have decided early on to let Gates and Mullen drive this process. I think he likely came to the conclusion that doing so was the best way to integrate OPENLY LGB personnel (because we know plenty of closeted/semi-closeted LGB folks are already integrated) into the military in a lasting way while still accomplishing his other goals for the military. I don’t agree with his conclusion, but that doesn’t mean that it is without merit.

    Now, 18 months later, it is clear that his plan has failed. Or, at the very least, is on the way to failure. With the election of Brown in MA (and, really, who could have foreseen that) and the complete abdication of decency of even the most moderate Republicans, he simply can’t accomplish full integration without becoming personally involved in moving the process forward.

    You’re also likely right that, even if the plan had gone forward without a hitch, Gates and Mullen would probably have liked a year to implement integration. However, I don’t think that necessarily means another year of discharges and certainly wouldn’t have meant another year of a bar on enlistment. Though, it could certainly have meant assignments to light duty or desk work for some service members (either of which would still cause measurable detriment to a service member’s advancement). At the end of that year, though, we would have had a fully integrated military supported by the chain of command.

    I don’t agree that this scenario means that he “handed his balls to Gates.” I think he looked at everything he wanted to accomplish with the military during his first term and figured three years was as soon as he could get rid of DADT while still doing the other things he wants to do. Again, not even close to ideal from our perspective. But if, within 3 years of Obama taking office, we had a military in which LGB service members could serve fully (for the first time in our nation’s history), would that have been such a horrible outcome?

    Of course, along the way, his administration bungled the messaging (especially on the survey), bungled the survey, didn’t keep the branch chiefs in line around the messaging, lost the Senate vote (that he didn’t want to have but needed to win once it was called), and seems to be on his way to blowing an opportunity with this LCR case.

    None of this, though, means he is a homophobe or a wimp. I think he just made some rookie mistakes (which have terrible consequences for our community) and hasn’t figured out how to adjust his initial plan to make the best of the current reality. I’m sure tons of folks are pushing behind the scenes for him to fix this mess (including settling the LCR case to set up a consent decree to have full integration within 6 – 12 months); we just need him to get up off the mat (on this and other issues as well) and get the job done.

  24. FunMe says

    And he files this on SPIRIT DAY, when we are wearing purple to remember our gay brothers who ended their lives due to bullying and homophobia.

    What an insult from a freaking homophobe Obama!

  25. FunMe says

    And to those Obama apologists: stop being a gay Rihanna. Even she left her abuser!

    So get some self-esteem and stop with your pathetic cover for the President who DOES NOT CARE for your equality. What you write is simply not worth reading and help me PAGE DOWN your excuses.

  26. anon says

    Congress can’t pass unconstitutional laws, so if this ruling stands they would not be able to enact DADT II.

  27. says

    STEAMING HORSESHIT, Daley, even if you’re not the “just a box of Twinkies shy of finally totally losing it and shooting someone SF Supervisor…thankfully termed out.”

    Tony West’s name has been on EVERY ODOJ antigay brief, from defending DADT in the same language used to pass it in 1993 to defending DOMA in even WORSE language than was used to pass it in 1996.

    As for the pro gay rights credentials of West and his wife, they sure didn’t demonstrate it by contributing a PENNY of West’s then-likely MILLION $$$$ a year compensation as a senior partner at a SF law firm to the No on Prop 8 campaign.

    As for your insufferable defense of Obama’s “strategy”…that “God is in the mix” became “Gates is in the mix” is no excuse for his premeditated betrayal, NO excuse for forcing our allies in Congress to trash the amendment Candidate Obama promised to PERSONALLY fight for that would have GUARANTEED an end to discharges. Take your head out of the clouds…and his ass.