Thursday November 4, 2010

‘Don’t Ask’ to Stand Indefinitely: Appeals Court

By Kathleen Gilbert

SAN FRANCISCO, California, November 4, 2010 ( – The Ninth Circuit Court of Appeals on Monday ruled that a lower court’s order barring enforcement of the military’s ban on open homosexuals will remain in effect until a final outcome in the case is decided.

Last month, the same three-judge Ninth Circuit panel issued an emergency stay that blocked an order by U.S. District Judge Virginia Phillips, which deemed it illegal for the U.S. to enforce the “Don’t Ask, Don’t Tell” policy and 10 U.S.C. § 654, the 1993 law banning homosexuals from military service. Monday’s order, issued in a 2-1 decision, made the stay permanent.

Phillips had concluded that the “Don’t Ask” rule violated the free speech rights of homosexual service members. The law was then suspended for eight days before the emergency stay was granted.

The stay came at the behest of federal attorneys who argued that Phillips’ order disrupted the government’s own review of the law, which its opponents – including the Obama administration – hope will lead to its dismantling. The Pentagon’s review is due out December 1.

“The public interest in enduring orderly change of this magnitude in the military – if that is what is to happen – strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in Monday’s 8-page majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

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