The 9th U.S. Circuit Court of Appeals on July 6 lifted its stay of a federal District Court ruling that found the Don't Ask, Don't Tell military gay ban unconstitutional.
As a result, DADT no longer can be enforced anywhere in the world and it's OK to be openly gay in the military.
However, the U.S. government could choose to appeal the lifting of the stay to a larger group of 9th Circuit judges or to the U.S. Supreme Court.
But, given that congressional repeal of DADT is within months of being implemented, it is unclear if the government will appeal the lifting of the stay.
In its order, the panel of 9th Circuit judges said: "[A]ppellants/cross-appellees do not contend that [DADT] is constitutional. In addition, in the context of the Defense of Marriage Act ... the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. ... ('gay and lesbian individuals have suffered a long and significant history of purposeful discrimination') ... ('there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities'). Appellants/cross-appellees state that the process of repealing [DADT] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."
"We won the motion filed in the U.S. 9th Circuit to vacate that court's stay of Judge Phillips's injunction," said R. Clarke Cooper, executive director of Log Cabin Republicans, the plaintiff in the case. "This means that worldwide injunction is operative again and that DADT cannot be enforced or applied! Hooah!"
The legal director of Lambda Legal, Jon Davidson, said: "The injunction issued by the District Court in the Log Cabin Republicans' challenge to Don't Ask, Don't Tell is back in effect. The government is enjoined from enforcing DADT anywhere in the world -- that means, not only no more discharges, but also no more processing for discharge of those who might violate DADT."
"(T)his is a quite stunning development," Davidson said. "It shows just how important it is that the Department of Justice now recognizes that sexual-orientation discrimination should be presumed to be unconstitutional and that courts should examine such discrimination carefully, as the Department of Justice forcefully argued in its brief filed last Friday in our Golinski case, which today's 9th Circuit order expressly referenced."
Davidson added that gay members of the military considering coming out might hold off until it's clear the government isn't going to appeal the 9th Circuit's order.
