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

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


  1. m says

    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?

  2. says

    @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.

  3. Zlick says

    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.

  4. says

    @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!

  5. Alan E. says

    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.

  6. Zlick says

    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.

  7. BobN says

    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.

  8. Ari says

    @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.

  9. says

    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.

  10. galore says

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

  11. X says

    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.

  12. Rich says

    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.

  13. Tyler C says

    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.

  14. says

    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.

  15. says

    @ 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.”

  16. anon says

    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.

  17. Contrarian says

    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.

  18. says

    @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!

  19. BreckRoy says

    Ari, is it even in the realm of possibility that Justice Kennedy could wait until the DoD report is delivered on December 1st. What if, for example, the military says that a repeal of the ban would cause little disruption and could proceed without concerns? It would certainly, from a common sense standpoint seem that Justice Kennedy could, with fairly good conscience, use that to decide there is no reason to continue the stay. The argument the government is making is that it would be too disruptive to allow it to happen, but if the military says in their report that it isn’t that disruptive that could be instructive. My question though is whether Kennedy or any justice is allowed to take such things under advisement or if they can only go based on the evidence and decisions presented in court this far? Makes me wonder if the LCR should have waited a little longer so that this decision would have to be made AFTER their was word (hopefully positive) from the military?

  20. says

    @breckroy: thanks for your question. justice kennedy could indeed wait, as when/how to rule is completely left up to his discretion. an application to vacate a stay is one among many so-called emergency appeals/motions to the supreme court, so the norm is to have a relatively quick turn around. but that also means that there is a quick turnaround on filing the application to vacate the stay. i do not exactly know the deadline, but while in a perfect world, LCR would wait for release of the survey, the deadline to file to vacate the stay would have long passed. but, since justice kennedy does not have a deadline to rule, he could certainly wait if he wanted to. and, while the survey results would not be part of the legal reasoning in the briefs, supreme court justices can pretty much decide things however they want. i doubt he will wait for december, though. that would inject the court into a political matter and needlessly expose him to controversy.

  21. darkmoonman says

    Hell must have frozen over if the LCR are doing anything publicly pro-gray. These are the folks who for the past 3 decades said that the way to gain rights for gays was to pretend to be straight.