Appeals court blocks order to end 'don't ask, don't tell'
Lawyer Blogs
A panel of 9th U.S. Circuit Court of Appeals on Monday blocked a U.S. district judge from demanding that the military enforce her order against the Pentagon's 'don't ask, don't tell' policy that bars gays and lesbians from serving openly in the military.
The immediate effect of the decision is to leave in place indefinitely a congressional ban that U.S. District Judge Virginia Phillips had found in September was unconstitutional because it infringed on the First Amendment rights of gay and lesbian soldiers, sailors and Marines. In October, she ordered the Pentagon to stop enforcing the ban, a ruling that briefly ended 'don't ask, don't tell,' the repeal of which has foundered in Congress, despite pledges by President Barack Obama to end it.
In its ruling, the panel said it had found "convincing" the government's arguments that suddenly ending the prohibition on gays and lesbians serving openly would have a deleterious effect on the military. "The public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay," the court said.
The panel also questioned whether Phillips' opinion would be upheld in the end.
"The district court's analysis and conclusions are arguably at odds with the decisions of at least four other circuit courts of appeals: the first, second, fourth and eighth," the panel said. The panel said the 9th Circuit was obligated by precedent not to interfere with the decisions of a "sister circuit" until it had undetaken a full hearing on the merits of the case.
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