The NY Times reports that the Ninth Circuit Court of Appeals has stayed Judge Virginia Phillips’ ruling finding rhe US military’s Don’t Ask, Don’t Tell policy unconstitutional. The Court temporarily stayed the decision last month so that it could consider briefs on the stay issue. The Court will now review the Judge’s decision on the merits under a normal schedule. The NYT reports that the Ninth Circuit stayed the ruling “out of deference to the judgment of Congress and the military, and in light of the fact that decisions by four other federal circuit courts finding the law not unconstitutional were ‘arguably at odds’ with Judge Phillips’s rulings.”

20 Responses to “Ninth Circuit Stays Judge’s DADT Policy Ruling”

  1. publius says:

    But The Giants won the Series. Things even out.

  2. Anonymous says:

    The Giants can have the Series; kudos to the ninth for injecting a little reasonableness back into the issue. The judge got way out of her lane.

  3. soonergrunt says:

    “The judge got way out of her lane.”
    Why do you say that? I mean to ask because if she’s out of her lane making a judgment about DADT, wouldn’t it correct to say that the other Federal District Courts which have made judgments (the other way) were out of their lanes as well?
    Isn’t this something that all the courts should have refused to hear on jurisdictional grounds?
    Personally, while I don’t like DADT, and I think it’s morally abhorrent and operationally wrong, the Constitution gives the authority to make regulations for the military to the Congress.

  4. huh says:

    Can Congress re-segregate the military based on race or religion under that authority? No.

    Civil rights for minorities only ratchet one way (at least in this country). Whether or not the decision stands right now, gays will serve openly in the military sooner rather than later because of this judge’s decision. Same thing with POTUS’s decision, regardless of whether it happens right now.

    Welcome to history.

  5. soonergrunt says:

    I’m not arguing that point, Huh. I just want to know how Anon 1754 arrives at the conclusion that “[t]he judge got way out of her lane.”

  6. Anonymous says:

    Two points, first, the judge out of her lane probably is not based on her actual ruling but her attempt to make it apply world-wide.

    Second, huh is correct, if one buys into the idea that DADT violates the civil rights of homosexuals, then the Constitutional authority to make regulations is trumped by the Constitutional protections for DP and EP.

  7. Christopher Mathews says:

    Civil rights for minorities only ratchet one way (at least in this country).

    Huh, I have three words for you: California’s; Proposition; Eight. If you don’t like those three, try these: Jim; Crow; Laws.

    Granted, there’s an argument to be made that such provisions merely delay the inevitable, but I think it’s hard to deny that minority civil rights can and do get rolled back from time to time, even if not all the way.

  8. Anonymous says:

    You are exactly right on the first point; everyone has a lane, and this judge clearly exceeded her patch of asphalt.

  9. sg says:

    So the judge would’ve been within her authority to ban DADT discharges within her district, but not anywhere else? Given that DoD operates worldwide, that doesn’t seem to make sense to me. Federal Judges enjoin the Federal government from doing things all the time. How is a ruling to have any effect at all if DoD can simply transfer the subject of a DADT investigation to say, Fort Sill, OK, and then discharge him or her?

  10. John O'Connor says:

    The judge got way out of her lane by purporting to issue a nationwide injunction, essentially empowering herself to overrule the decisions of four other courts of appeals.

    She’s well within her lane in deciding whether DADT is unconstitutional, and whether she is right or wrong in that determination will be resolved in due course. But it’s the nationwide scope that I think is the most prominent overreach here.

  11. John O'Connor says:

    SG, it’s an overreach because you have couts of appeals that have upheld DADT. Though the plaintiffs argued it, it doesn;t make sense that the Fourth Circuit’s en banc decision on DADT is “irrelevant” even within the Fourth Circuit because a single district judge in California reached a different result.

  12. Christopher Mathews says:

    SG —

    The judge had authority to decide the case on Constitutional grounds, and had authority to enjoin the government’s conduct having ruled against it. As you noted, federal courts do such things, if not all the time, whenever they believe the law requires it.

    The reach of the injunction has gotten a lot of attention, but so long as the court has jurisdiction over the subject matter and the parties, it can in theory enjoin the conduct of those parties anywhere. A federal court’s order enjoining infringement of a patent or trademark, for example, is not geographically limited to the confines of the district in which that court sits. Where the claims are based on state law (as in a diversity matter, for example), the geographic reach of the injunction may be limited; but that wasn’t the case here.

    The real issue regarding the reach of the injunction, at least as I saw it, was that the government was faced with conflicting imperatives from Congress and the courts. DADT is not like Schroedinger’s Cat, existing in a state of indeterminacy: it’s either Constitutional and therefore the law of the land, or it’s not. You can’t obey this judge’s order and at the same time comply with the rulings from other courts which have held that DADT is Constitutional. If this had been a case of first impression, the government could conceivably have chosen not to appeal her decision — that’s happened before — but it wasn’t and so the current appeal was pretty much a foregone conclusion.

    I doubt this was an accident on the judge’s part: given the length of her opinion, I think she intended to create a record and to force the issue up the appellate chain. If that’s what she had in mind, someone in the Navy needs to let her borrow an aircraft carrier: she needs a place to hang her “Mission Accomplished” banner.

  13. Other forms of discrimination says:

    The military also discriminates against the elderly, the disabled, and women and these are protected classes, but the law recognizes that operational readiness trumps certain personal and group civil rights in a military context. DADT may be bad policy, but the administration is correct to appeal and get the courts back in their box regarding the deference afforded Congress and the executive branch to manage military affairs. Obviously, some forms of dicrimination would be so offensive and irrelevant to military readiness (e.g. racial discrimination) that the Courts would be right to intervene – but DADT simply does not cross that high bar.

  14. soonergrunt says:

    Thanks, Mr. O’Connor.

  15. soonergrunt says:

    Thank you, Sir.

  16. soonergrunt says:

    @ Judge Matthews,
    Thank you, Sir for that very thorough class.
    I always feel a little smarter after visiting this site.

    Then, somehow, my brother calls, and, like a black hole, sucks me towards the stupid. So far, I’ve managed to evade the event horizon, but if I ever pass it, I’ll be subjected to stupid so dense that no light can escape and I’ll be crushed by it.

    So thanks to all here for the help.

  17. Anonymous says:

    that’s a pretty facile response for two reasons:

    1. It assumes that the argument of those in favor of getting rid of DADT is so simplistic as to not understand the difference between lawful and unlawful discrimination. Of course, it isn’t.

    2. There is no actual evidence that operational evidence would be significantly affected by gays in the military, the upcoming survey result which will indicate that gays in the military is no big deal by all reports being an example of this.

    And as a bonus point, this isn’t a case of gays being excluded wholesale, we have instead a situation where we say being gay in and of itself is not a bar to service (like say, I don’t know, being elderly or disabled just to pull a few out of nowhere), but you can’t actually in your off-hours actually practice that sexuality, even in the privacy of your own home.

  18. Facile? says:

    The courts have rightly given substansial deference to the legislature and executive branch to create regulations that preserve good order and discipline and maximize operational readiness. There are still plenty of servicemembers in the infantry (and other branches that do not enjoy privacy or other similar creature comforts in the field) who would be uncomfortable serving in close quarters with those who engage in homosexual conduct – for the same reason that we don’t quarter women and men together in close proximity. As a “bonus point” the success of the homosexual lobby to transform a behavior into a protected class has been an impressive legal and policy conjuring act.

  19. World Spinner says:

    CAAFlog » Ninth Circuit Stays Judge's DADT Policy Ruling…

    Here at World Spinner we are debating the same thing……

  20. huh says:

    there is also, frankly, more than a de minimis presence of white supremacy in the US military. not at all saying it’s widespread.

    the “uncomfortable with homosexual conduct” line is a red herring. post-DADT repeal, disruptive gay sex will be proscribed just like disruptive straight sex.

    we don’t ask the white supremacists for their views when determining whether to keep the military integrated on racial lines.

    and re Jim Crow laws, Prop 8, etc., yes those are all temporary setbacks.