The 9th Circuit just issued an order staying a lower court decision finding the Don’t Ask Don’t Tell law unconstitutional.  The order is here.  This means that the law will remain in place until such time as the 9th Circuit rules otherwise on the case.

Two judges on the three judge panel reasoned that a stay was appropriate because:

1. Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.

2. ‘Judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.

3. The district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.

4. The government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing.

A third judge dissented and would have carved out an exception to the stay – allowing the district court’s order to continue in effect insofar as it enjoins the military from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal.

So there you have it: institutional interests trump individual rights once again.


  1. Read About 9th Circuit Stay In Log Cabin Republicans Don't Ask Don't Tell Case – Let The Homophobia Continue http://wp.me/ploC4-KI

  2. US: 9th Circuit Grants Stay In Log Cabin Republicans Don't Ask Don't Tell Case – Let The Homophobia Continue http://bit.ly/8XOAV8

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