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

BY ARI EZRA WALDMAN

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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Comments

  1. 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?

    Posted by: BreckRoy | Nov 6, 2010 9:20:49 PM


  2. @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.

    Posted by: Ari Ezra Waldman | Nov 6, 2010 9:42:58 PM


  3. 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.

    Posted by: darkmoonman | Nov 7, 2010 2:27:28 PM


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