Ari Ezra Waldman | Don't Ask, Don't Tell | Log Cabin Republicans | Military | News

DADT: Log Cabin'ers Make Their Next Move, to the Supreme Court


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Supremes Today, the Log Cabin Republicans (LCR), through their attorneys at White & Case LLP, filed an application (read it, AFTER THE JUMP) with the Supreme Court to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's decision that found the "Don't Ask, Don't Tell" law (DADT) unconstitutional. It was their next move and a good one, but the odds of success aren't great. This short post will summarize LCR's arguments and answer a few questions about what happened today and how this will unfold in the next few days/weeks.

First, some background. As you know, about ten days after Judge Virginia Phillips declared DADT unconstitutional, she issued a worldwide injunction barring enforcement of the law. The government asked her for a stay on that order pending appeal, meaning that the government asked her to keep the status quo -- keep DADT operational -- as the case goes up the chain. In a well-reasoned opinion, she declined. The government then asked the Ninth Circuit -- the next highest court -- for a stay, and it was eventually granted. Practically, that meant that as the case goes on, DADT is still a good law.

What LCR filed today was its request to the Supreme Court -- the next highest court above the Ninth Circuit -- to undo what the Ninth Circuit did, to "vacate" the stay granted by the Ninth Circuit. If LCR wins, the stay would be lifted and Judge Phillips's injunction that would order the military to accept openly gay and lesbian individual into the service.

Notably, this dispute isn't about the merits of DADT, that is, we're not talking about whether DADT is unconstitutional, we're just talking about holding off on implementing the order while the appeal is ongoing.

LCR deserves credit not only for bringing this case in the first place, but also for noticing the legal failings of the Ninth Circuit's order granting a stay and for its strong advocacy. So, what is the LCR's argument here?

At the center of LCR's argument to the Supreme Court is that the Ninth Circuit "abused its discretion" when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays. An "abuse of discretion" is a tough standard to meet simply because appellate courts have discretion to issue stays. But what they don't have discretion to do is to grant stays without requiring the party seeking the stay to prove, among other things, a "likelihood of success on the merits." All that means is that in order to properly get the stay at the Ninth Circuit, the government had to prove that it was likely to win its appeal on the merits, likely to keep DADT as good law. The Ninth Circuit, LCR argues, didn't really do that. Nor did the Ninth Circuit engage in the required balancing of harms. Before getting a stay, the government was also supposed to show that any hardship to the military or the government if there were no stay would outweigh any hardship to LCR with a stay. Finally, LCR points out that the Ninth Circuit accepted the government's injury argument based on mere speculation rather than actual evidence.

LCR's argument makes a lot of sense to me, especially since the Ninth Circuit apparently justified its stay on Judge Phillips's decision being at odds with other court decisions on DADT and generally failed to require the government to justify a stay. A stay is an example of "extraordinary relief," meaning that you don't get it just because you want it, you have to prove a lot -- meet a "heavy burden" -- to get it. At the Ninth Circuit, the government arguably did not meet that burden.

In its brief, LCR goes through the proper test for a stay and shows how the Ninth Circuit failed. The government had to show it was likely to succeed on the merits, but its arguments in that regard basically referred to previous court decisions upholding DADT. I've always found this part of the stay test to be tough to prove one way or another. Likelihood of success is supposed to mean "more than likely", but courts issue stays even when the moving party shows a "colorable" argument on the merits -- namely, an argument that makes sense and could win. LCR's brief has it right, but the vagaries of this element make it hard to win here.

The Ninth Circuit's most striking error was its utter failure to balance the hardships to the parties before granting a stay. The government had to show that without a stay, it would suffer serious and "irreparable" harm. But the court then had to balance any of those harms against any harm that LCR and its members would feel without a stay AND the harms that would befall the military with a stay. How does that make sense? The government argued that the military needed an orderly disposition to DADT and that an abrupt end would be disruptive. But, LCR showed at trial, and on motion to the Ninth Circuit, that the military is harmed every day DADT is in place. The Ninth Circuit failed to give weight to those injuries, and it let the government get by with only administrative and organizational harms that were, in any event, purely speculative. The government offered no real evidence of the administrative difficulties and administrative harms ever outweigh injuries to constitutional rights. LCR has a strong and persuasive argument here.

Arguably, the story should end here. Failure to use the proper standard and use of speculative evidence is enough to vacate the stay. But, the Ninth Circuit also justified its stay based on the presumptive constitutionality of Congressional actions and the necessary deference that we give the military and to Congress when legislating about the military. It seems like this is a catch all -- namely, given that we give the military a lot of leeway and freedom from the courts, we should just defer to it all the time. But, LCR is right to point out that while deference here is undisputed, that deference does not obviate the court's responsibility to conduct the proper balancing, follow settled precedent and consider all rights and harms before granting a stay.

There's more in LCR's brief, of course. For example, it criticizes the Ninth Circuit for suggesting it had to follow the decisions of its sister circuits (when it clearly does not) and, in any event, those other decisions are either outdated or not relevant. Suffice it to say, this brief is not cookie cutter. White & Case attorneys did a good job finding specific errors in the Ninth Circuit's process in granting the stay in addition to the substantive law. This may carry weight.

May is the operative word. While it should be the rule that the party seeking the stay has the heavier burden, when the party seeking the stay is the government and when the case involves a politically charged act of Congress, formal rules tend to bend to political realities. Unquestionably, courts are more willing to grant stays to the government in hot political cases. That doesn't make it right, it's just the way it is.

Still, if any brief was going to be successful, it's this one. I eagerly anticipate the next steps, with guarded optimism.

After the jump, some answers to anticipated questions, and the application itself.

Continue reading Log Cabin'ers Make Their Next Move AFTER THE JUMP...

Why was the brief directed to Justice Anthony M. Kennedy?

Technically, the LCR asked Justice Kennedy to vacate the Ninth Circuit's stay. Each justice is given responsibility to deal with applications like this one and emergency motions and appeals over a particular circuit. Justice Ginsburg, for example, supervises the Second Circuit; Justice Kagan gets to oversee emergency appeals from the Sixth and Seventh Circuits; and so on. Justice Kennedy could decide this matter on his own, or he could refer the LCR's application to the entire Supreme Court. He has complete discretion here.

What happens next?

Justice Kennedy could rule on the application tomorrow, next week, next month or whenever. He could also request that the government file a brief in response, giving them a chance to get their voices heard. Again, Justice Kennedy has complete discretion here. It's good to be a Supreme Court justice!

If the stay is vacated...

then the military will once again have to start accepting openly gay and lesbian individuals into the service and would not be able to enforce the law against any service member currently in the armed forces. The appeal about whether DADT is unconstitutional would still go on, but it would go on while openly gay service members are free to serve.

If the stay is upheld...

then, DADT can still be enforced -- albeit under the restrictions recently imposed by the administration -- while the appeal goes on up the system.

If you have any other questions, let me know!

Here's the application itself:

Application to Vacate

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  1. Hello Supreme Court, goodbye equality.

    Posted by: Roscoe | Nov 5, 2010 6:23:50 PM

  2. Hello Supreme Court, goodbye equality

    Posted by: Roscoe | Nov 5, 2010 6:25:03 PM

  3. Does Kennedy have an obligation to respond, with requests or a timeline, or could he just sit on this brief, and not rule at all?

    Posted by: m | Nov 5, 2010 6:27:03 PM

  4. @m: Thanks for your question. Justice Kennedy does have an obligation to respond, but he can respond with a briefing calendar for the other side to submit a brief and then rule. There is no timeline for his response, but the nature of so-called emergency applications makes an expedited review process the norm.

    Posted by: Ari Ezra Waldman | Nov 5, 2010 6:32:08 PM

  5. One has wonder then, why - without such elements as deference to the military and legislature - the Perry (Prop 8) case attorneys did not similarly appeal the Ninth's Circuit's grant of a stay pending appeal to the Supreme Court. In that instance, the Ninth Circuit apparently ignored all the requirements for granting a stay - and far more egregiously (imo) than they have here.

    I suppose it was a strategic decision by Olson and Bois, perhaps even a wise one, but it's disheartening to see them fear to tread where the Log Cabin Republicans have the balls to go.

    Posted by: Zlick | Nov 5, 2010 6:37:12 PM

  6. Top notch review, Ari. Thanks.

    Posted by: Natira | Nov 5, 2010 6:40:16 PM

  7. @zlick: thanks for your comment. That makes a lot of sense, and I
    agree that LCR and White and Case are certainly showing some balls,
    but the stay in the Prop 8 case was arrived at through a more proper
    reasoning method. Even if we may have wanted a different result on
    that stay, at least the 9th cir did a good job going through the
    motions and balancing the harms. Excellent observation, though!

    Posted by: Ari Ezra Waldman | Nov 5, 2010 6:42:35 PM

  8. This was a fantastically well written review of the case so far. It is thorough and uses vernacular outside of most legal terms that makes for an easier read for the casual passerby.

    Posted by: Alan E. | Nov 5, 2010 6:45:06 PM

  9. Thanks guys!

    Email by Ari. Typos by iPad.

    Posted by: Ari Ezra Waldman | Nov 5, 2010 6:58:40 PM

  10. Wow, Ari. We are just going to have to agree to disagree about the validity of the Perry stay, and of course that's not a tangent to get into here. But balancing the harms? Really? There was no possible harm to the Prop 8 proponents absent a stay. Oh well. Thanks for the good work on the legal beat, tho. Much appreciated.

    Posted by: Zlick | Nov 5, 2010 7:24:56 PM

  11. This stuff scares the beejeezus out of me. Never underestimate the ability of the SCOTUS to disappoint.

    On some level, of course, they had to go there. These things, with their legal and moral obligations, take on a life of their own. The presumption, of course, is that the other actors are also proceeding on moral and legal grounds. Sadly, it ain't usually the case when it comes to gay rights.

    Posted by: BobN | Nov 5, 2010 7:42:10 PM

  12. @zlick: Don't get me wrong. I agree with you that a stay in the Prop 8 case was not what I would have wanted in an ideal world. But, the 9th Cir. at least followed proper procedure and analyzed the right law/legal questions in that case. Also, it's hard for me to speak for the Olson/Boies team and their strategy. Possible reasons for not appealing the stay: (1) the 9th Cir did a better job going through the motions; (2) didn't want to press the issue too soon; (3) cost prohibitive; (4) its hard to vacate a stay, so why bother.

    Posted by: Ari | Nov 5, 2010 7:59:03 PM

  13. On HuffingtonPost they said that 31% of LGBT voted Republican on Tuesday.

    Posted by: Name: | Nov 5, 2010 8:48:04 PM

  14. Two points:

    1. In some areas, Justice Kennedy has evolved into a very pro gay rights Justice. He wrote the "Romer" ruling overturning Colorado's ban on gay nondiscrimination law, and the "Lawrence" ruling overturning civilian sodomy laws.

    But he voted with the homophobic majority in letting the Boy Scouts continue to ban gays. And, specifically, to help us now, he will have had to have turned into an entirely new person than he was in 1980 when he was on the 9th Circuit Court of Appeals himself and wrote the decision declaring that the pre-DADT discharge of sailor Dennis Beller who was outed during a security clearance investigation [eventually forbidden under DADT by a Clinton Executive Order] was constitutional because:

    "While it is clear that one does not surrender his or her constitutional rights upon entering the military, the Supreme Court has repeatedly held that constitutional rights must be viewed in light of the special circumstances and needs of the armed forces. Despite evidence that attitudes towards homosexual conduct have changed among some groups in society, the Navy could conclude that a substantial number of naval personnel have feelings regarding homosexuality, based upon moral precepts recognized by many in our society as legitimate, which would create tensions and hostilities."

    2. RE LCR: I give them credit for trying even if they don't succeed. But never, NEVER should they be forgiven for pivoting to their gay Repug Kapo selves and helping drive Rep. Patrick Murphy out of office, our greatest ally in Congress in helping end the ban legislatively, by endorsing his opponent simply because he is a goddamn Republican.

    Such betrayal is JUST as great as anything I have ever criticized Obama for, and I say a plague on their houses! EVEN the pathological GOPhags didn't do that.

    And it isn't just a matter of loyalty to our allies from whichever Party they come, but the fact that if this "option to repeal" amendment fails in the lame duck session of Congress, LCR helped send packing the one person who had the credentials as a nongay Army veteran of Iraq to try to bring it back to life from scratch in January.

    Posted by: Michael @ | Nov 5, 2010 9:54:53 PM

  15. Well, here is a chance for Chief Roberts to take revenge on Obama by totally pissing into his precious DADT strategy LOL!!!!!!!

    Posted by: galore | Nov 5, 2010 10:44:21 PM

  16. Thank God. If America doesn't recognize some SHARD of equality for its gay citizens and soldiers soon, some frickin revenge is in order. I don't know WHAT the ignorant people in charge expect -- that they can continue to oppress its people with no consequences? That it can let the stupidity of outdated religious "beliefs" and other prejudices trump American liberties? ARRRGH.

    Posted by: X | Nov 6, 2010 2:33:07 AM

  17. I wonder if the balancing of harms argument could also lead to a modified stay -- i.e. a stay of the military/civilian status so that openly gay persons could not join the military but those currently enlisted would not be discharged pending a final adjudication of the LCR case.

    Posted by: Rich | Nov 6, 2010 3:00:55 AM

  18. Phrases like "as you know" and "of course", as well as his posts during the recent election night coverage, make me think that Mr. Waldman's writing style could use some editing to bring it up to Towleroad's high standards. While the LGBT perpective on legal issues is welcome, the tone is sometimes off-putting.

    Posted by: Tyler C | Nov 6, 2010 7:38:22 AM

  19. I still think that DADT will ultimately get kicked back to Congress, which is, from my reading of things, exactly what the Obama Administration wants to have happen. Rather than end DADT with case law from the SCOTUS, Obama seeks a legislative solution, unlikely in the current political climate. I would suggest that although DADT is clearly meant to exclude a class of Americans from military service, the terms "gay" and "lesbian" are still politically radioactive enough that legislators don't want to touch them with a fork, any more than Kennedy or the Supreme Court does. I will suspend my own judgment on their actions until I see what the judgment of the Court turns out to be.

    Posted by: Nathan James | Nov 6, 2010 8:44:03 AM

  20. @rich: a modified injunction is indeed possible and my apologies for
    leaving off that option. thanks for reading!

    Posted by: Ari Ezra Waldman | Nov 6, 2010 9:59:02 AM

  21. @tylerc: thanks for your constructive criticism. Use of those phrases
    are below my standards, so I will redouble my self-editing.

    Posted by: Ari Ezra Waldman | Nov 6, 2010 10:00:51 AM

  22. @ Nathan: No disrespect intended, but concluding "from your reading of things" that Obama wants to do anything other than what SECDEF Gates wants him to do ... in Congress or the courts ... demonstrates you haven't been reading enough.

    Gates, regardless of his periodic smile fucking to the contrary, has used many of the nefarious skills he developed while at the CIA to set a series of landmines to kill any chance of unequivocally ending the ban....from creating "The Study" to its push poll design to postponing a vote until the lame duck session to gutting a guaranteed repeal amendment and replacing it with one that still gives him the final say in whether to change anything. [Yes, technically Obama and CJCS Mullen have a say, too, but, again, Obama is his willing puppet, and Mullen is his official puppet as Gates is his boss.]

    I can imagine, despite Pentagon shill denials to the contrary, some kind of gay segregation [i.e., open service allowed in some units and not others] from the nature of some of "The Study's" questions and the [so quickly forgotten" "results" leak three weeks ago in the "Los Angeles Times," emphasis mine:

    “The task force found DEEP RESISTANCE to the idea of repealing the law in some elements of the armed services, especially within the combat units, an officer familiar with the findings said."

    That is NOT to say I believe THAT "leak." To the contrary, I think the more recent "no problem" ones are more accurate, and the earlier one was a lie or exaggeration from that unnamed "officer."

    BUT, again, there is no guaranteed connection between what the results actually turn out to be and what Gates will claim they are. And he was repeatedly accused of cooking the books when he was at the CIA.

    To believe he or Obama have the best interests of gay servicemembers at heart...well, that's why another term for landmine is "booby trap."

    Posted by: Michael @ | Nov 6, 2010 3:06:44 PM

  23. SCOTUS will allow the stay simply to show they respect the way the courts have operated in the past. They rely on the circuit courts to do the heavy lifting and so they aren't going to create more work for themselves by second guessing at this level.

    Posted by: anon | Nov 6, 2010 4:30:41 PM

  24. Mr.Waldman, please explain or comment upon the standing issue. Why does the LCR have standing to challenge anything? Though it may be churlish to question their motives, I suspect they want to drop an uncomfortable court decision in the lap of the White House.

    Posted by: Contrarian | Nov 6, 2010 5:58:21 PM

  25. @contrarian: thanks for your question, and i love the word churlish! first, i dont think its about making this white house uncomfortable. the case was originally brought back in 2004 and only came to trial so recently because of extensive EXTENSIVE pretrial motions and manuevering.

    but, to your question, why can the LCR bring a suit where, in general, you need some specific injury to bring a lawsuit and one organization cannot be injured by DADT. we allow organizations like the LCR to bring a suit on behalf of its members
    if at least one of the LCRs members would have standing in his or her
    own right, if the issue is germane to the groups mission and neither
    the claim nor the desired relief requires a particular individual to be
    a part of the suit.

    LCR met all three requirements. Two members of the
    group, including a John Doe, either were in the military or are in the
    military and have been members of the LCR since before the beginning of
    this action. The other two requirements were really not in dispute. As
    a political organization representing gay individuals interested in a
    strong national defense as well as equal rights, the issues implication
    by this case fit well within LCRs mission. And, since the organization
    was not asking for the court to reinstate someone into the military and
    merely asking for a prospective ruling on a facial challenge to the
    law, no particular person was necessary for the relief to be granted.

    hope that answers your question. thanks for reading!

    Posted by: Ari Ezra Waldman | Nov 6, 2010 6:10:31 PM

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