The Ninth Circuit Court of Appeals has granted the government its request for a stay in the injunction barring enforcement of 'Don't Ask, Don't Tell' pending appeal, the AP reports:
"Monday's decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals means gay Americans who disclose their sexual orientations still can't enlist in the armed forces and can be discharged. The panel granted the government's request for a stay while it challenges the trial court's ruling that the ban on openly gay service members is unconstitutional. The same panel imposed a temporary hold keeping 'don't ask, don't tell' in place last week. Monday's ruling also heightens pressure on the Obama administration to persuade the U.S. Senate to repeal the 1993 law before a new Congress is sworn in."
The SF Chronicle adds: "The court has scheduled written arguments in the case through early March but has not set a hearing, which will be held before a different panel. The stay will remain in effect during the government's appeal, which could take a year or more. Daniel Woods, lawyer for Log Cabin Republicans, the gay-rights group that sued to overturn the law in 2004, said he may ask the U.S. Supreme Court to lift the stay."
In an eight-page decision, the justices identify “three reasons that persuade us to grant a stay pending appeal”:
– First, Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.
– Second, “‘judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies.”
– Third, the district court's analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.
Here's the order:
