The Ninth Circuit U.S. Court of Appeals -- responding to an emergency motion by the Department of Justice — has temporarily reinstated a portion of a stay of an injunction barring the U.S. military from enforcing its nearly defunct "Don't Ask, Don't Tell" policy.
But the court specifically authorized the part of the injunction that halts the military from “investigating, penalizing or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”
The government argues that allowing a district court’s global injunction of the policy to take effect while repeal is under way wrests authority from the military, which is following an “orderly process” to repeal the policy.
The court late Friday issued the temporary stay, but it specifically authorized the part of a district court injunction that halts the military from “investigating, penalizing or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”
When the Ninth Circuit panel -- Chief Judge Alex Kozinski and Judges Kim Wardlaw and Richard Paez -- lifted the stay earlier this month, it said the “circumstances and balance of hardships have changed.” The judges pointed to the changes in the Obama administration’s legal posture on classifications based on sexual orientation, including the Justice Department’s about-face in a San Francisco federal case involving a Ninth Circuit staff attorney and her fight to get health insurance coverage for her wife. In that case, which is a challenge to the Defense of Marriage Act, the government filed papers saying sexual orientation should be subject to heightened scrutiny.
The Justice Department responded, saying the court “misapprehended the significance” of the government’s position in the DOMA case. And it said the court was wrong to think the government isn’t defending the constitutionality of Don’t Ask, saying it plans to continue fully defending the policy “as it applies today, following the repeal act.”
The panel said the Justice Department in last week’s filing revealed information the Ninth Circuit didn’t previously have, including a declaration saying only one servicemember has been discharged under Don’t Ask since repeal and that certification of repeal could be under way by the end of July or early August. In light of that information, the court said it would reinstate temporarily part of the stay of injunction.
The court set out a briefing schedule for the stay issue, which is to be completed by Friday.
Oral arguments on the merits of the case are set for Aug. 29. A different appeals panel, which has not been disclosed, will preside.