BREAKING: DOJ appeals DADT stay request to the 9th Circuit

October 20, 2010 at 10:00 am 44 comments

By Eden James

The Department of Justice is asking the U.S. 9th Circuit Court of Appeals for an emergency stay of the ruling by Judge Phillips halting enforcement of DADT.

Not entirely surprising, of course. Chris Geidner has more:

In its filing, DOJ attorneys state:

“We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.”

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.

Finally, DOJ argues that the remedy — the worldwide injunction against all enforcement of DADT — is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

Kathleen has the Scribd:

View this document on Scribd

More to come…

UPDATE: Check out this first-hand account from the New Civil Rights Movement of Lt. Dan Choi’s experience yesterday as he tried to reenlist in the Army. Some good images of the media horde that assembled as well as Dan outside the Times Square recruitment center:

The twenty-nine year old had announced his intention to re-enlist, (technically, to be re-instated,) this afternoon, via Twitter. “I’m gonna try to enlist in the Marines today,” he tweeted. That brought throngs of news media and bloggers (yours, truly, had received word as well,) to Times Square.

Military recruiters, busy with another young man enlisting, kept the former Lieutenant waiting at the door for fourteen minutes. Upon seeing Choi, one recruiter picked up the phone, and many of us assumed he was calling his superiors for direction on what to do, given the special circumstances. I confess, we were surprised they weren’t prepared.

Entry filed under: DADT trial.

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44 Comments Add your own

  • 1. Ann S.  |  October 20, 2010 at 10:03 am


    • 2. JonT  |  October 20, 2010 at 10:44 am

    • 3. Kathleen  |  October 20, 2010 at 11:37 am

      • 4. Lesbians Love Boies  |  October 20, 2010 at 11:43 am

  • 5. Richard A. Walter (soon to be Walter-Jernigan)  |  October 20, 2010 at 10:04 am

    I hope the 9th CCA tells the DOJ, “No dice. The judgment and injunction go forth NOW!”

    • 6. Ronnie  |  October 20, 2010 at 10:10 am

      I concur….<3…Ronnie

  • 7. Sagesse  |  October 20, 2010 at 10:07 am

    I hope they make the Pentagon, DOJ wait until they have considered and ruled on the stay.

    • 8. Sheryl Carver  |  October 20, 2010 at 10:57 am

      Maybe the Appeals Court should take a survey to see how everyone in the US feels about granting the stay. Shouldn’t take more that 6 months or so to get the results. Then, after careful consideration of the feedback, they can make a decision about the stay. Isn’t that how the Pentagon thinks anything to do with DADT should be handled?

      • 9. Cat  |  October 20, 2010 at 12:26 pm

        I love it!

  • 10. Alan E.  |  October 20, 2010 at 10:10 am

    My review:

    It’s lame.

    • 11. JonT  |  October 20, 2010 at 10:46 am

      And very whiny.


    • 12. Ed Cortes  |  October 20, 2010 at 11:15 am

      Since the pentagon has already issued orders implementing the judges order, isn’t DADT essentially repealed (at least for a few days)? I guess it wasn’t as difficult to implement as mccain and others were crying! In fact, IMHO, it would be worse to now grant a stay and jerk the poor military around even more, since they seem so unable to handle change (at least that’s what we have been told time and time again)…

      • 13. nightshayde  |  October 20, 2010 at 11:40 am

        Canada’s military achieved the switch in one day. One. Freakin’. Day.

        How difficult can it be, really?

      • 14. Sagesse  |  October 20, 2010 at 12:25 pm


        Duh…. not really hard at all. It was 1992, and we’re still waiting for the fallout.

      • 15. Bob  |  October 20, 2010 at 1:18 pm

        one thing about the Canadian Military, is that they never considered themselves a safe haven for the Chrisrian right, nor where they controlled by Chrisitan philosophy, or told during debriefing sessions, that they had done a good job fighting gods war. For example they had more diversity in chaplains, Canadians work hard at embracing diversity, we allow each culture to maitain it’s own unique features, whereas U.S. works towards assimilation, attempting to cover up diversity by looking American, Throw in the god factor and American=Chrisitan, and you get a grasp of why this isn’t just a simple as it ought to be,
        The christian factor is the strangle hold that has been ruling philosophy in the U.S. military and the anti-gay bias has thrived in that culture………
        One order could still change all that in one day, but it would need to be a forceful bold order, and still you’re dealing with top brass who have the mindset of Maggie and Brian.

  • 16. Joe B.  |  October 20, 2010 at 10:12 am

    I’m no policy wonk, but I have to ask, What part of unconstitutional don’t they understand?

    The Obama justice dept. is certainly spending a lot of time and resources making sure that EVERYONE knows this isn’t their baby. It’s shameful. It makes me embarrassed that I voted for him.

  • 17. Bobw  |  October 20, 2010 at 10:21 am

    Let’s assume the 9th circuit upholds the judgement and it’s appealed to the Supreme Court. And let’s assume the Supreme Court also upholds the judgement. THEN will it be over?

    • 18. Don in Texas  |  October 20, 2010 at 10:25 am

      Yes, if Judge Phillips’ decision/injunction are upheld all the way to through the Supreme Court, DADT is over.

      Don’t hold your breath, though. There’s a lot of judicial process to wade through before that happens.

  • 19. Kelly  |  October 20, 2010 at 10:28 am

    What I find sick (besides the obvious), is that they are trying to do it TODAY! Of all days? Really?

  • 20. Ronnie  |  October 20, 2010 at 10:35 am

    Here is the video of Anderson Cooper talking with Lt. Dan Choi & Alexander Nicholson (Plaintiff in DADT case)…..<3…Ronnie:

  • 21. Ronnie  |  October 20, 2010 at 10:56 am

    Google Employees say “It Gets Better”……<3…Ronnie:

  • 22. eDee  |  October 20, 2010 at 11:18 am

    …. and the unending roller coaster takes another turn…..

    On a positive note, I think I may have found some Rainbow ParaCord!!!
    I have a few emails in and I’m just waiting to make sure it is actually Rainbow before I purchase it.

  • 23. Alan E.  |  October 20, 2010 at 1:13 pm

    Here is a Newsweek article about Obama’s actions during the DADT trial in recent weeks.

    Is Obama’s Excuse for Not Repealing ‘Don’t Ask, Don’t Tell’ Legitimate?

    • 24. Lynn E.  |  October 20, 2010 at 1:41 pm

      Obama’s excuse is that he needs to repeal the law through legislative action. Funny, but I don’t remember that phrase as part of his election year promise.
      Maybe if he had pointed that out, we could have ensured that he stayed in the legislative branch to help garner support for the position? Although our chances under McPalin would have been nil.

  • 25. Al Dente  |  October 20, 2010 at 1:40 pm

    Leading scientist says homosexual activity is just “a bad habit” – SHOCKING story at:

    Peace! :-)

    • 26. Anonygrl  |  October 20, 2010 at 1:49 pm

      LOL! Fun, thanks!

    • 27. Ronnie  |  October 20, 2010 at 1:50 pm

      Bullshite…no links…no citations….just a blog….& EVERY leading professional of the medical field says the opposite…


      • 28. Kathleen  |  October 20, 2010 at 1:53 pm

        It’s a joke.

      • 29. Anonygrl  |  October 20, 2010 at 1:54 pm

        Psst… Ronnie… it was a joke. Dr. Weisenheimer?


      • 30. Alan E.  |  October 20, 2010 at 1:56 pm

        Check out the subtitle of the site:

        Penetrating Political Parody and Other Poppycock

      • 31. Ronnie  |  October 20, 2010 at 2:19 pm

        Oh I know…but you think the fundies do?…<3…Ronnie

  • 32. Bob  |  October 20, 2010 at 1:41 pm

    so Obama has options he has as yet not taken advantage of, like stop loss, or executive order,

    question 1. if he uses those options, could they be reversed under a new president’?

    2. if the case goes all the way to the supreme court and they rule in favour of DADT, does that bar him from using those first two options?

    3. if congress does not achieve the repeal and DADT stays, does that bar the presiident from his first two options?

    • 33. fiona64  |  October 20, 2010 at 3:21 pm

      As I have explained before, stop loss is not applicable in this particular instance.

      However, the answer to question 1 is yes, another president can just undo either stop loss or executive orders.


      • 34. Dr. Brent Zenobia  |  October 20, 2010 at 5:51 pm

        As discussed previously, stop loss is available as a tool for POTUS to temporarily stop the discharges in time of national emergency. A 2010 study published by a team of military law experts from the Palm Center of the University of California concluded on page 12 of the PDF, page 11 of the study: (

        “…by law currently in effect, Congress has already granted the President authority with respect to military promotions, retirements, and separations in time of national emergency…this law is colloquially referred to as the “stop-loss” authority, and it has been used to suspend the voluntary separation of members of the military who have reached the end of their enlistment obligation or have qualified for retirement. The law, however, gives the President authority to suspend ‘any provision of law’ relating to separation of members of the armed forces, including involuntary separations under 10 U.S.C. 654. The Army has announced it will phase out the ‘stop-loss’ program, which forcibly retains soldiers who wish to leave after their tours. It is important to point out that this use of stop-loss has been particularly unpopular because it forces ongoing service by those who wish to leave the military, whereas the use of stop-loss to suspend homosexual conduct discharges would, by contrast, allow ongoing service by those who generally wish to remain in uniform.”

        In short, the President’s authority to issue a stop-loss is applicable in this instance. Although the term “stop-loss” is being used in a different sense than suspending discharges of personnel who have completed their tours of duty, it is nevertheless derived from the same underlying legal authority. This is the sense of “stop-loss” that is meant in the context of DADT.

        Politically, it would not be as easy for another president to reinstate DADT as some have suggested. Once LGBT begin to be integrated into the military and no dire consequences are observed, it will become difficult if not impossible for the federal government to argue that the presence of LGBT servicemembers threaten military readiness, morale, etc. Even if a right-wing Republican President were to revoke the stop-loss and reinstate DADT as a play to his or her political base, LGBT servicemembers could easily return to court and make a powerful case that the stop-loss essentially constituted an admission by the Federal Government that DADT was sufficiently harmful to national security that it had to be suspended in a time of emergency. That effectively makes DADT unconstitutional on its face (source: Walter Dellinger III, solicitor general for the Clinton administration.)

        For a discussion of the constitutionality issues around DADT, see For a discussion of legal options that are available to Obama which he is not taking full advantage of, see

        @Kathleen – you had asked earlier about cases in which the executive branch had appealed to the judicial branch asking for a law to be struck down as constitutional. The Advocate article contains this intriguing quote:

        “But Dellinger added that the administration could still leave the final decision to the courts even as it presents its own belief that “don’t ask, don’t tell” is unconstitutional.
        If the president believes that a restriction is harmful to national security … then surely from the president’s own viewpoint it’s unconstitutional, and he ought to feel free to tell the court that,” he said, noting about 10 instances in the post–World War II era in which a president has followed that very same course.”

        Unfortunately it doesn’t cite the specific cases.

    • 35. Bob  |  October 20, 2010 at 8:26 pm

      thanks Fiona and Dr. BZ,,

      you confirmed my thoughts re question 1, basically yes, but as Dr. BZ points out another court battle could change it back,, I’m leary about that option considering the amount of money already behind the evil attempts of NOM and their goal

      I still would like to know about questions 2 and 3 if court or congress fails at ending DADT, does that bar Obama from using the options available to him previous to those processes.

      • 36. Dr. Brent Zenobia  |  October 21, 2010 at 3:46 am

        Obama has the legal authority to issue a stop-loss order regardless of whether SCOTUS upholds DADT or Congress fails to revoke DADT. The legal authority for a stop-loss stems from a 1984 law passed by Congress that gives the President the power during times of national emergency to override any other provision of law governing separation from the armed forces. The fact that we are at war constitutes a national emergency. (As an aside – when have we not been at war lately?)

        During the Bush Administration the President’s stop-loss authority was used to prevent people from leaving the service voluntarily when their term of enlistment came to an end. Similarly, if Obama were to invoke stop-loss, it would be used to prevent people from leaving the service involuntarily, i.e., due to being kicked out by DADT. Stop-loss authority was granted to the President by a separate act of Congress than DADT, and the wording of the stop-loss statute is such that it trumps DADT or any other provision of law relating to separation from the armed forces.

      • 37. Bob  |  October 21, 2010 at 5:15 pm

        so if the courts fail or if congress fails, and DADT stays, Obama could use stop loss, could he at that point also use executive order, or would his only option then be stop loss.

        My thinking is because the courts or congress are the only final resolution to DADT, Obama wants to really let those two options play out all the way. The final fix,

        As opposed to his other actions which may be temporary and show his commitment to LGBT, right now, at the cost of further court actions down the road.

  • 38. Bill  |  October 20, 2010 at 1:58 pm

    Another gay kid hangs himself:

    • 39. JonT  |  October 20, 2010 at 4:24 pm

      I’ve added him to the ever increasing list.

      I also added Justin “Chloe” Lacey yesterday, a transgendered teen who committed suicide on Sept 24th, based on a tip from Kathleen.


  • 40. Manilow  |  October 20, 2010 at 3:31 pm

    So if I go down and try to enlist right now for the military – are they just going to put my papers on hold until this all gets sorted out? Would I go through the entire process only to be told later that I am ‘undesirable’ if the stay is upheld or ruling reversed later?

    This seems like even more work for the military than just ending it here/now.

  • 41. Kathleen  |  October 20, 2010 at 3:47 pm

    Posted this in most recent thread, but thought I’d put it here too.

    UPDATE in DADT case (LCR v USA)
    Preliminary Response of LCR to Gov’t Request for Temporary “Administrative” Stay

    Warning – it’s a massive document, but mostly because of attachments, many of which are likely duplications of previously filed documents. Don’t have time to go through it right now to sift out the irrelevant.

  • 42. Kathleen  |  October 20, 2010 at 4:31 pm

    UPDATE in DADT case:
    Temporary stay granted by 9th Circuit to allow time to consider stay pending appeal. LCR has until Oct 25 to file opposition.

  • 43. Rhie  |  October 20, 2010 at 6:11 pm


  • 44. Rhie  |  October 20, 2010 at 6:12 pm



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