The Ninth Circuit Stops the Enforcement of DADT

Big DADT News!

Metro Weekly reports:

In an order issued by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, U.S. District Court Judge Virginia Phillips's judgment halting the worldwide enforcement of "Don't Ask, Don't Tell" as a result of her decision in Log Cabin Republicans v. United States has been put back in effect.

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit or the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- decided to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCR case because, the judges write, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

The Ninth Circuit has Denied the Motion to resume gay marriages in California

In Cali-Cal, we will have to wait for Gay marriages. The motion to lift the stay was denied.

This morning, the Ninth Circuit Court of Appeals denied a motion to vacate the stay pending appeal.

Federal Judge Vaughn Walker ruled last year that Proposition 8 was unconstitutional and ordered that same-sex weddings be allowed to resume. 

That decision was appealed to the Ninth Circuit, where the case is tied up on a legal question the panel asked the California Supreme Court to rule upon: Do Prop. 8 sponsors have legal standing to defend the law in court when the state will not.

The order was filed by judges Stephen R. Reinhardt, Michael Daly Hawkins and N. Randy Smith.

The order says: “Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.”

More to come.

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Cali-Cal's AG Kamala Harris files a letter to Lift Stay on Marriages

California attorney general and diva,  Kamala Harris has filed a letter with the 9th circuit U.S. court of appeals to put gay marriage back on the playing field in Cali-Cal.

In arguments filed with the U.S. 9th Circuit Court of Appeals, Harris asked the court to lift a hold on a federal court order directing the state to permit gays to marry. U.S. District Judge Vaughn R. Walker, who served on the bench in San Francisco, ruled that the marriage ban violated constitutional rights to due process and equal protection.

Harris' argument follows a decision by the California Supreme Court to consider a question in the case that could put off a final resolution in the 9th Circuit for more than a year.

"For 846 days Proposition 8 has denied equality under law to gay and lesbian couples," Harris told the court. "Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law."

The federal appeals court recently asked the California Supreme Court to rule on whether the proponents of Proposition 8 have legal standing to defend the initiative in court when state officials refuse to do so. Last year, Attorney General Edmund G. Brown Jr. opposed imposition of the stay, pending appeal.

Do it, girl!

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Prop 8 NEWS: 9th Circuit Court Asks for Opinion from CA Supreme Court if Prop 8 supporters have Standing

Please read:
9th Circuit Court of Appeals Asks for Opinion from California Supreme Court on Standing Issue

Ninth Circuit has Announced the Panel for the Prop 8 Appeal

Next week kicks off the hearing of Judge Vaughn Walker’s Prop 8 ruling.

The panel, which includes Stephen Reinhardt (appointed by Carter) and  Michael D. Hawkins (appointed by Clinton), will hear the case on Monday the 6th.

See here:
Ninth Circuit Panel for Prop 8 Appeal


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9th Circuit Court of Appeals keep DADT in Effect

U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of DADT today.

Metro Weekly reports:

"In addition to the fact that this case raises 'serious legal questions,'" the court wrote, "there are three reasons that persuade us to grant a stay pending appeal."


The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal."


In dissenting, Judge William Fletcher wrote, "I would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal."


The two judges who supported the stay -- Judges O'Scannlain and Trott -- responded, writing, "In our view, this 'carve out' is inconsistent with the stay itself and would be subject to the vagaries of the rule of unintended consequences."


R. Clarke Cooper, executive director of LCR, said in a statement, "Log Cabin Republicans is disappointed that 'Don't Ask, Don't Tell' will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform."


"Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers' constitutional rights," he continued. "In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy."

 I wonder if this is because of the survey? I bet that once the survey results are final, then DADT will be done... Fingers Crossed.

DOJ Appeals the DADT Stay Request to the 9th Circuit

Not unexpected, the DOJ appealed the DADT stay request today. I will give you Chris Geidner's take on this measure:

In its filing -- in which DOJ lawyers say that Phillips's order is "at odds with basic principles of judicial restraint" -- they make the following request:

We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.

The request likely will be heard by the "motions panel" for October, which is Judges O'Scannlain, Trott, and W. Fletcher.

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.
DOJ then argues, "The government has also shown a likelihood of success in its argument that the district court erred in ruling § 654 [the DADT law] unconstitutional on its face."
Finally, DOJ argues that the remedy -- the worldwide injunction against all enforcement of DADT -- is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

Please read the file
DOJ DADT Stay Request

Appeals Court Stay is NOT a Big Loss

The 9th Circuit Court granted the stay on Judge Walker's decision. And the gay world almost blew the frak up!

But y'all know me, I don't jump the fence that easily. I knew this could happen, most legal peeps said it would.

But should we be worried? Maybe not, here's an interesting point of view from Ari Ezra Waldman, legal expert.

The Ninth Circuit is fast-tracking the appeal in this case. The three-judge panel should hear arguments in San Francisco in the first week of December. That may sound more like the glacial pace of a snail hitching a ride on the back of a turtle, but in a system where regularly scheduled appeals can take more than a year to be calendared for oral argument, this schedule is Bugs Bunny fast.

The court’s order specifically asked both sides to address the issue of standing.

Standing is a fancy legal word for the right to appeal. And, in this case, there is a substantial question as to whether the Prop. 8 proponents have standing to appeal to the Ninth Circuit.

Normally, the only party that has the right to appeal is the party that was hurt by the lower court’s ruling – namely, when a party has to pay a sum of money or stop violating a law or, in this case, start issuing marriages licenses to same-sex couples.

But, the State of California issues marriage licenses, not a group of anti-gay marriage advocates and citizens. Since Gov. Arnold Schwarzenegger and Attorney General Jerry Brown opposed the stay and do not want to appeal Judge Vaughn Walker’s ruling, the parties left to appeal are those not affected by Judge Walker’s order.

The Ninth Circuit is clearly curious about this problem, as well. The judges are wondering how someone not covered or affected by an order have the right to appeal that order.

And

This appeal is just one in a series of steps necessary to win marriage equality rights. While it may be frustrating to wait to exercise our fundamental rights, we are not just in this fight for California.

If this case ended with Judge Walker’s order, we would have marriage equality in California, but it would be of limited precedential weight across the country. Having the imprimatur of an appellate court or, ultimately, the U.S. Supreme Court, will do more to advance the cause of marriage equality than one district court order.

This is a battle. Instead of wasting energy ranting and raving, let's prepare for the long haul. Freedom isn't Free.

The Revolution might be Televised

The big Federal Prop 8 case may be televised.

The Judicial Council of the 9th Circuit authorized television cameras in certain district court proceedings Thursday, reviving a national controversy just weeks before a groundbreaking trial over same-sex marriage is slated to begin in San Francisco.

The 9th Circuit currently allows cameras to televise appellate arguments, as does the 2nd Circuit. A private vendor has also recorded a handful of district court proceedings in New York.

But under the 9th Circuit's new experimental program -- in which only civil, nonjury trials would qualify -- district courts would be likely to use their own camera equipment, said Circuit Executive Cathy Catterson. The method of distribution would be figured out on a case-by-case basis.

"It might be posted later in the day, it could be edited, or it could be live. It would depend on the nature of the case," Catterson said.

Cases to be considered for the pilot program, and the distribution details, will be decided by each district's chief judge, in consultation with 9th Circuit Chief Judge Alex Kozinski. In San Francisco it is the Northern District of California's chief judge, Vaughn Walker, who is presiding over the federal challenge to Prop 8.

Walker first raised the possibility of a televised broadcast several weeks ago, and lawyers representing pro-same-sex-marriage plaintiffs support the idea. The defendants oppose it, saying anti-gay-marriage witnesses could be subject to harassment and retribution. When the topic arose again this week, Walker alluded to possible 9th Circuit action and asked for another discussion with the parties should authorization occur.

This will be interesting to watch. I would love to hear the opposing side's arguments. And I love that anti-gay-marriage witnesses could be subject to harassment and retribution part. If you are going to steal my rights, stand your ground. Don't get scared all of a sudden, you dished it, you need to take it!

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