Legal Commentary

Ninth Circuit, 2?1, Stays DADT Injunction

By Dale Carpenter

The stay is effective while the appeal is pending, meaning that DADT is in effect until at least early 2011 (or until it is repealed by Congress). The opinion is here. Judges O?Scannlain and Trott were in the majority; Judge Fletcher partially dissented, preferring to maintain the injunction during the appeal only as to actual discharges.  Rick Hasen comments here.

The majority noted that acts of Congress are presumed constitutional, especially when Congress is exercising its constitutional power ?to raise and support armies.? It also noted that the district court?s decision holding DADT unconstitutional conflicts with decisions in four other circuits, not just in the sense that these other circuits? substantive conclusions deserve respect but that the district court?s world-wide relief would actually interfere with their conclusions in their geographic areas.

The Court accepted the Obama DOJ?s bare assertions that a quick end to DADT would result in ?immediate harm? and ?irreparable injury? to the military. It also accepted the assertion that allowing gays to serve openly would require unspecified ?training? and ?guidance? of military personnel, especially combat forces, which cannot be done in a short time frame.

Overall, while the decision says nothing directly about the ultimate merits of the constitutional challenge to DADT, it does reinforce the heavy burden the Log Cabin Republicans are going to face on appeal.  Military policy is an area where courts rarely intervene, even if the justifications for the policy are very thin (as they are for DADT) and even if similar government policies would be unconstitutional if applied to civilan life. The writing is on the wall for this litigation.

(HT: Chris Geidner)

Full post as published by The Volokh Conspiracy on November 01, 2010 (boomark / email).