A federal appeals court in San Francisco today issued a short-term stay allowing the government to resume barring openly gay people from serving in the military at least until early next week.
The stay by the 9th U.S. Circuit Court of Appeals temporarily blocks an injunction in which U.S. District Judge Virginia Phillips of Riverside ordered an end to the “don’t ask, don’t tell” policy.
The temporary stay will remain in effect until the appeals court decides whether to grant a longer-term stay while the government appeals the injunction.
“The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented,” a three-judge panel of the court said in a one-page ruling.
The court appears likely to decide quickly on whether to grant a longer-term stay because it set a Monday deadline for a gay rights group to file opposition to a stay.
The panel said it wouldn’t allow any reply to Monday’s brief in order to expedite its consideration of the bid for a longer stay. The panel did not say when it would rule on the longer-term stay.
Dan Woods, a lawyer for Log Cabin Republicans, the group that challenged the policy, said, “We view the decision as nothing more than a minor setback.”
“We expect that once the 9th Circuit has received and considered full briefing on the government’s application for a stay, it will deny that application, and the district court’s injunction…will remain in place until the appeal is finally decided,” Woods said.
The “don’t ask, don’t tell” policy, enacted in 1993, bars military officials from asking about service members’ sexual orientation, but it requires the discharge of those who declare themselves to be gay or engage in homosexual activity.
It was challenged in a lawsuit filed by Log Cabin Republicans in 2004.
On Oct. 12, Phillips issued an injunction blocking implementation of the policy, saying that it violates service members’ constitutional rights to privacy and free speech. On Tuesday night, she declined to stay her injunction.
The Justice Department then filed an emergency motion this morning seeking both a temporary stay and a long-term stay.
Government attorneys said in the brief that the Obama administration is seeking to repeal the policy, but they argued it would be disruptive to end the policy abruptly by allowing the injunction to go into effect during the appeal.
The injunction “risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute,” the attorneys wrote.
The Obama administration believes that repeal of the policy “should not occur without needed deliberation, advance planning and training,” the lawyers said.
The panel that granted the stay is made up of Circuit Judges Diarmuid O’Scannlain, Stephen Trott and William Fletcher.
Julia Cheever, Bay City News
