October 20, 2010
Obama DOJ Appeals Denial of "Don't Ask Don't Tell" Stay to Ninth Circuit
Judge Phillips denial of the DOJ's motion to stay her injunction of the military's "don't ask don't tell" policy in Log Cabin Republicans v. US is being appealed by the DOJ in an Emergency Motion (with memo) to the Ninth Circuit filed today. District Judge Phillips original declaration of unconstitutionality is here.
The DOJ memo includes rather cursory constitutional arguments, mainly arguing the doctrine regarding granting a stay. One argument, however, rests upon the Ninth Circuit's opinion in Witt, essentially that the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), remanded for the district court to determine whether the statute had been validly applied to the plaintiff, which "makes no sense if the Act is unconstitutional on its face." Thus the "district court’s decision is thus inconsistent with controlling precedent, as well as with numerous appellate decisions upholding various applications of the statute." The district court in Witt recently ruled that Witt should be reinstated.
Footnote one on the DOJ Emergency Motion, as in the district court pleadings, seeks to distance the Obama Administration from "Don't Ask, Don't Tell," even as it seeks to have the policy reinstated by the Ninth Circuit:
The Administration does not support § 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their
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