9th Circuit Panel Activates Injunction Against DADT: “The circumstances and balance of hardships have changed”

It did not take the U.S. 9th Circuit Court of Appeals, pondering a motion by Log Cabin Republicans to lift a stay of District Judge Virginia A. Phillips' injunction against enforcement of the "Don't Ask, Don't Tell" military policy, very long to react to the Justice Department's filing of a brief with the U.S. District Court in the Golinski spousal benefits case, arguing that DOMA Section 3 is unconstitutional.  In that brief, the Justice Department affirmatively argued that government policies that discriminate based on sexual orientation are subject to heightened scrutiny, and Section 3 can't survive such scrutiny because it does not serve any important government interest.  This was enough for the 9th Circuit panel, which issued an order at noon today (July 6) lifting the stay, saying that "the circumstances and balance of hardships have changed."  

Many commentators had reacted to DOJ's Golinski brief as a real "game changer" in terms of gay rights constitutional litigation, for the government had gone from refusing to defend anti-gay discrimination, in a February 23 announcement by Attorney General Eric Holder, to actively opposing it in the July 1 brief. This may be seen, in retrospect, as perhaps the most decisive action in support of gay rights yet taken by the Obama Administration, greater in its potential impact than the various administrative actions that have been taken to address individual inequities in federal policies or even than signing into law the Hate Crimes Act and the DADT Repeal Act, Obama's signal legislative accomplishment on behalf of gay rights.  The DOJ brief now signals the government's view that not only is Section 3 of DOMA (the anti-gay definition of marriage under federal law) unconstitutional, but potentially all unequal treatment of gay people is unconstitutional.

This seems all of a piece with DOJ moves on the binational couples immigration front, as a recent directive from the Justice Department about the exercise of discretion in deciding whether to deport otherwise law-abiding undocumented foreign nationals who are spouses of legal U.S. residents and citizens has begun to pay off with some cancellations of deportation orders.  It suggests that a brief similar to the July 1 brief in the Golinski case will also be filed in the U.S. 1st Circuit Court of Appeals in the Gill case, the pending appeal of a ruling last summer by District Judge Joseph Tauro holding Section 3 unconstitutional.

In September 2010, District Judge Virginia Phillips ruled in Log Cabin Republicans v. United States of America, 716 F.Supp.2d 884 (C.D.Cal. 2010), that the DADT policy violated the 5th Amendment equal protection rights of gays who sought to serve in the military, and issued a worldwide injunction against its enforcement.  She refused to stay her injunction pending appeal, but a motions panel of the 9th Circuit responded to the Justice Department's emergency appeal and issued a stay pending an appeal and ruling on the merits.  Then the Obama Administration used the threat of an injunction against the policy as part of the lobbying effort to pass the Don't Ask, Don't Tell Repeal Act, which was signed into law on December 22.

Under the DADT Repeal Act, the anti-gay military policy will end 60 days after a written certification to Congress by President Obama, the Chair of the Joint Chiefs of Staff, and the Secretary of Defense that all steps have been taken to prepare for implementation of the new policy and that such implementation would not impair the effective operation of the armed forces.  Policy changes and training have been ongoing, and President Obama indicated at the White House Gay Pride reception last month that certification would occur "in a matter of weeks, not months."

Meanwhile, having passed the repeal measure, the Justice Department asked the 9th Circuit to put the Log Cabin Republicans case on hold, keeping the stay in effect until the policy was lifted pursuant to the repeal measure, in order to avoid disruption and allow for an orderly policy transition.  Log Cabin Republicans countered with a motion to lift the stay, arguing that the government was no longer contending that the policy was constitutional, and that every day DADT continued in effect was inflicting a constitutional injury on gays in the service.  The court refused to put the case on hold, setting a briefing schedule and planning for oral argument to be held.  The sudden order today granting Log Cabin Republicans' motion to lift the stay was a surprise, but a logical development given the Justice Department's position on constitutionality.

The court's order, issed by a three judge panel consisting of Chief Judge Alex Kozinski and Judges Kim McLane Wardlaw and Richard A. Paez, was brief and direct.  After pointing out that the government is no longer arguing that the DADT policy is constitutional, and that DOJ is now arguing in the Golinski case that "classifications based on sexual orientation should be subjected to heightened scrutiny," and pointedly quoting DOJ's concession in the Golinski brief that "there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities," the court observed 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."  Thus, the grounds for staying the injunction had dissipated.

"The circumstances and balance of hardships have changed," wrote the court, and the government "can no longer satisfy the demanding standard for issuance of a stay."  Once a federal court has determined that a government policy is violating the constitutional rights of individuals, the government bears a high burden of showing that it is necessary to keep that policy in effect while an appeal is going on.  In this case, the government had argued the potential for major disruption of the military in the middle of two ongoing conflicts (in Iraq and Afghanistan) as justifying a status quo injunction while the district court's ruling was being appealed.  In light of all that has happened since last fall, that argument is no longer credible.

The injunction is back in effect and DADT cannot be enforced without placing the Defense Department in contempt of the district court.  As a practical matter, the Defense Department had already stopped discharging gay and lesbian personnel unless (in a handful of cases that have come to light over the past few weeks) the gay personnel were actively seeking discharge.  Since it is still possible that DOJ could request an en banc 9th Circuit panel (11 judges) to reconsider its request for a stay, it may be prudent for gays in the military to lay low a little while longer.  But at this point such a move by the government would be pointless, and what would really make sense would be for the President to place a call to the new Secretary of Defense, Leon Panetta, and to the Chairman of the Joint Chiefs, and invite them to the White House to sign the certification.