Court: DADT In Effect During Appeal
The San Francisco Chronicle reports:
A divided federal appeals court allowed the armed forces on Monday to continue discharging openly gay and lesbian troops until at least next spring while the court reviews a challenge to the "don't ask, don't tell" law.
The 2-1 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco extends a temporary stay that the court granted Oct. 20 after a federal judge declared the law unconstitutional.
The court has scheduled written arguments in the case through early March but has not set a hearing, which will be held before a different panel. The stay will remain in effect during the government's appeal, which could take a year or more.
Daniel Woods, lawyer for Log Cabin Republicans, the gay-rights group that sued to overturn the law in 2004, said he may ask the U.S. Supreme Court to lift the stay.
The 1993 law, which replaced a ban on gays and lesbians in the military, prohibited commanders from asking troops about their sexual orientation but required discharge of those who disclosed they were gay. More than 13,000 service members have been discharged under the law.
U.S. District Judge Virginia Phillips of Riverside ruled in September that the law intrudes needlessly on service members' private lives and reduces military effectiveness by excluding skilled personnel and aggravating troop shortages.
She banned all discharges and investigations under the law on Oct. 12, but the appeals court intervened eight days later at the request of the Obama administration, which is defending the law despite President Obama's attempt to get Congress to repeal it.
Justice Department lawyers urged the court to suspend Phillips' order during their appeal.
They noted that administration-backed legislation to overturn the law, now stalled in the Senate, would take effect only after the Defense Department completed an opinion survey of service members and a study of the changes needed to lift the ban. The study is due Dec. 1.
In Monday's order, Judges Diarmuid O'Scannlain and Stephen Trott said a stay of Phillips' order during the appeal process is justified by "the public interest in ensuring orderly change of this magnitude in the military - if that is what is to happen." They also noted that four other appeals courts have upheld the law.
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