Don’t Ask, Don’t Tell Injunction Activated

BY ARTHUR S. LEONARD | It did not take the US 9th Circuit Court of Appeals, pondering a motion to lift a stay of a federal district judge’s injunction against enforcing Don't Ask, Don't Tell, very long to react to a Justice Department filing in a spousal benefits case arguing the Defense of Marriage Act (DOMA) is unconstitutional.

In a July 1 filing in a case brought by Karen Golinski, a federal court employee in San Francisco who sued after her wife was denied spousal health benefits, the DOJ argued government policies that discriminate based on sexual orientation are subject to a heightened level of judicial scrutiny, and that DOMA’s Section 3, which denies federal recognition of marriages by same-sex couples, does not serve any important public interest, and so does not survive that constitutional scrutiny.

Appeals action may have little practical impact, but highlights significance of evolving government gay rights posture

Five days later, on July 6, the 9th Circuit panel responded to the Log Cabin Republicans’ motion by lifting the stay on Judge Virginia A. Phillips' injunction blocking DADT’s enforcement. The panel stated that “the circumstances and balance of hardships have changed” since the stay was initially imposed last fall.

Commentators reacted to the July 1 Golinski brief as a real “game changer” in gay rights constitutional litigation. Between February 23, when Attorney General Eric Holder announced the government would no longer defend DOMA, and July 1, the DOJ position evolved into active opposition to the 1996 statute.

The Golinski brief, then, reflects perhaps the Obama administration’s most decisive action on behalf of gay rights. It signals the government's view that not only is DOMA unconstitutional, but potentially so too is all unequal treatment of gay people.

This shift comes as the Justice Department has also issued a directive that discretion be exercised when deciding whether to deport otherwise law-abiding undocumented immigrants who are same-sex spouses of US citizens, with some deportation orders canceled in response.

The Golinksi brief also suggests the government will make the same argument to the 1st Circuit Court of Appeals, which is considering an appeal of District Judge Joseph Tauro’s ruling last summer striking down DOMA’s federal recognition provision.

In September 2010, District Judge Virginia Phillips ruled that DADT violated the 5th Amendment’s equal protection rights of gays who sought to serve in the military, and issued a worldwide injunction against its enforcement. After she refused to stay that injunction pending appeal, the 9th Circuit accepted the government’s emergency appeal for a stay.

The Obama administration parlayed the threat of Phillips’ injunction in its DADT repeal lobbying effort late last year. Even though the repeal statute was signed on December 22, the policy will not end until 60 days after the president, the defense secretary, and the chair of the Joint Chiefs of Staff certify that sufficient planning has been completed to avoid any impairment of military readiness.

At the president’s White House LGBT Pride reception late last month, Obama indicated certification would occur “in a matter of weeks, not months.”

The DOJ, meanwhile, had pressed to keep the stay of Phillips’ order in place until the statutory repeal process was complete. The Log Cabin Republicans responded by arguing the government was no longer contending the policy is constitutional, and that every day it continued in effect inflicted a constitutional injury on gays in the service.

The sudden order today granting the Log Cabin motion was a surprise, but logical given the DOJ position on constitutionality. Issued by a panel consisting of Chief Judge Alex Kozinski and Judges Kim McLane Wardlaw and Richard A. Paez, it was brief and direct. After pointing out the government no longer asserts DADT is constitutional, and that DOJ now argues that “classifications based on sexual orientation should be subjected to heightened scrutiny,” 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.”

The grounds for staying the injunction, the court concluded, had dissipated.

The panel pointedly quoted 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.”

Once a federal court has determined a government policy violates the constitutional rights of individuals, the government bears a high burden of showing it is necessary to keep that policy in effect while an appeal is going on. With the process of repeal nearly complete, the government’s argument about the potential for major disruption while the military wages two wars is no longer credible, the three judges concluded.

The injunction is back in effect and the Defense Department would be in contempt of court if it continued to enforce DADT. The morning after the ruling, the Pentagon stated it would comply with the order, which suggests that the new defense secretary, Leon Panetta, the president, and Joint Chiefs Chair Michael Mullen may well be very close to issuing their certification.