Steve Who?: United States Court of Appeals for the Ninth Circuit

Showing posts with label United States Court of Appeals for the Ninth Circuit. Show all posts

Monday, October 25, 2010

HRC Sends Open Letter to President Obama on DADT Repeal

HRC President Joe Solmonese sent President Obama an open letter today calling on him to act quickly to repeal DADT during the post-election lame duck session, to drop the administration's legal challenge to the 9th District Court's ruling that DADT is unconstitutional and issue a stop-loss on discharges.

Dear Mr. President:

Years from now, students of the movement for lesbian, gay, bisexual and transgender equality (LGBT) will no doubt see this fall as a pivotal period in the history of our struggle for fundamental fairness. In January, we were all inspired by your State of the Union pledge to end our nation’s discriminatory ban on open service by gays and lesbians. Equally inspiring was the testimony in support of repealing the “Don’t Ask, Don’t Tell” law by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. We have come so far, but the only true measure of success is whether the thousands of brave gay and lesbian Americans who are serving their country, and the many more who want to serve their country, can do so openly and honestly. We have not yet met that goal, and without your leadership and unparalleled efforts, this historic opportunity to remove a stain of discrimination from our nation will pass all of us by.

Last week, lawyers for your administration asked for an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, seeking to end a worldwide injunction of the “Don’t Ask, Don’t Tell” law while they work to overturn a federal judge’s conclusion that this law – one that you have called discriminatory and contrary to our national security on many occasions – offends the protections of our Constitution. I continue to struggle with how your administration can defend a law you oppose, and how it could be even remotely constitutional for a statute to single out one group of brave Americans, because of who they are and who they love, and order them serve in silence and deception. How can our government have a duty to defend a statute that is clearly so contrary to our Constitution’s guarantee of equality for all?

The Ninth Circuit’s decision to stay Judge Phillips’s decision further frustrates repeal advocates and puts a bright spotlight on you to reconcile this endless legal wrangling with your public promise to end “Don’t Ask, Don’t Tell.” While we continue to call on your Administration not to appeal, if the Justice Department does insist on defending this discriminatory law, I strongly urge you to instruct government lawyers to inform the appellate court that the Executive Branch believes that the “Don’t Ask, Don’t Tell” law is unconstitutional. I agree with the esteemed lawyer and former head of the Office of Legal Counsel at the Department of Justice, Walter Dellinger, that such a move would send the Ninth Circuit a critically important message.

Furthermore, the litigation strategy challenging “Don’t Ask, Don’t Tell” is made all the more critical by the challenges a legislative repeal has faced in Congress. While the House approved repeal by a wide margin, the Senate’s first and second attempts to move forward on the critical Defense Authorization bill were stymied by Republican obstructionists looking to score political points before the midterm elections. There is still an opportunity for the Senate to send the repeal of “Don’t Ask, Don’t Tell” to your desk in the lame duck session, but it will not happen if you do not put the full weight of the Office of the President of the United States behind it. Republican opponents would rather see the Defense Authorization and everything in it – military pay raises, critical armor and equipment for our troops, health coverage for their families on the home front – fail than let gays and lesbians serve their country openly. This is an outrageous insult to our troops, to their Commander-in-Chief, and to the Defense Department charged with their operations and their care. You and Secretary Gates must be full partners in making clear to Senators that it is doubly unacceptable to hold hostage the needs of every soldier, sailor, airman and Marine in a desperate attempt to preserve a law that flies in the face of the American ideals they sacrifice to protect every day.

It is because “Don’t Ask, Don’t Tell” is contrary to our core values as a nation that it must end. And we must have a durable solution – legislative repeal or a solid judicial decision. But if those fail, you must not allow another day to go by in which a brave gay or lesbian service member is discharged based simply on sexual orientation. HRC has urged your administration, privately and publicly, for more than a year to use every tool at your disposal as Chief Executive to at least significantly reduce discharges, if not end them entirely. More can be done in this regard.

You can and should issue a stop-loss order suspending enforcement of “Don’t Ask, Don’t Tell.” This discriminatory law has already deprived our military thousands of service members, many with critical skills in fighting terrorism. You have acknowledged that it harms our national security. If we fail to achieve legislative repeal this year, and if you will not abandon the defense of this discriminatory law in court, then it is imperative that you use your clear authority as President to end the discharges. Anything less is unacceptable.

We have fought long and hard to get this close to ending “Don’t Ask, Don’t Tell.” We pledge to continue that fight, every step of the way, until this unjust law is gone for good. Future generations will look back at this moment – we must not let it become a setback in the long march toward full equality, but instead make it the turning point it is poised to become.

Sincerely,

Joe Solmonese
President

Wednesday, October 20, 2010

Breaking: DoJ Files Emergency Request to Stay DADT Injunction

UPDATE: A three-judge panel has granted a temporary stay in Judge Virginia Phillips' ruling in the case of Log Cabin Republicans vs. The United States, giving the U.S. Military temporary powers to enforce DADT until the panel has a chance to consider the merits of the Justice Department's request.

The Metro Weekly blog Poliglot reports:

In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:

"This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed."

This means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide whether to issue a stay pending the appeal of the case to the Ninth Circuit.

This does not immediately change the military's policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, "the Department of Defense will abide by the terms of the injunction" and stated that "additional guidance" would come if a stay is granted.

This is not, however, a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide -- sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request -- whether to issue a stay pending the outcome of the appeal.

If a stay is granted pending the appeal, though, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

This just in from The San Diego Gay and Lesbian News:

SAN FRANCISCO – Attorneys for the Department of Justice this morning asked the Ninth Circuit Court of Appeals for an emergency stay of Judge Virginia Phillips’ permanent injunction that prohibits enforcement of the military’s “Don’t Ask, Don’t Tell” policy.

"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 DOJ attorneys wrote in their filing with the court.

The legal action was expected.

On Tuesday, Judge Phillips had denied the DOJ’s request for an emergency stay and DOJ attorneys said they would appeal that decision.

Meanwhile, the Pentagon is allowing gays and lesbians to enlist. Dan Choi, who was drummed out of the military because of DADT, tweeted this morning that he passed the Army's written test today. But the legal mess could complicate the future service of any enlistees who declare they are gay or lesbian, should DADT policy go back into place.

Tuesday, August 17, 2010

Appeals Court Issues Stay on Walker's Prop 8 Ruling

It looks like it's going to be one of those legal and emotional roller coasters as the case for same-sex marriage works its way to the U.S. Supreme Court. A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled Monday to issue a stay in Judge Vaughn Walker's ruling last week striking down California's Proposition 8. While this move was not totally unexpected, many gay and lesbian couples across California had planned on marrying as early as tomorrow.

This is actually one of those good news/bad news things. While the stay means a delay in marriage equality in the Golden State, the court also expedited the appeals process, scheduling the the appeal for December 6th. Normally an appeal could be be scheduled one to two years out. The proponents of Prop 8 filed an emergency stay request citing the confusion that would ensue if gay couples were allowed to wed during the appeals process only to have Prop 8 upheld later.

On the up side, the entire appeals process hinges on whether or not the defenders of Prop 8 have any legal standing to file an appeal at all in the case of Perry vs. Schwarzenegger. Both Gov. Schwarzenegger and California Attorney General Jerry Brown have chosen not to defend Prop 8 in the original court case or in the appeals process.

The San Francisco Chronicle reports via SFGate.com:

While the Ninth Circuit judges did not give a reason for their decision, they did instruct Prop. 8 proponents to explain why they had legal standing to act in the interests of the state, which is not defending Prop. 8.

The question of standing has become crucial since Walker, in striking down Prop. 8, wrote that the initiative's defenders "may have little choice but to attempt to convince either the governor or the attorney general to file an appeal."

Chances are slim that Gov. Arnold Schwarzenegger or Attorney General Jerry Brown will do so, considering that both have pressed for same-sex marriages to be allowed to resume since Walker's ruling.

While asking the Ninth Circuit to allow same-sex marriages to proceed, San Francisco City Attorney Dennis Herrera has focused on Walker's contention and maintained that Prop. 8 supporters have no right to appeal or even ask for a stay. He took the wording in Monday's ruling to mean that the court is seriously considering that argument.

Charles Cooper, an attorney for Prop. 8's proponents, said in a court filing Monday that the initiative's sponsors had clear standing to defend their measure, given that the state had declined to do so.

Cooper also supported a long-running bid by Imperial County - which is also now in front of the Ninth Circuit - to intervene in support of Prop. 8.

Lawyers for Advocates for Faith and Freedom, which is giving free representation to Imperial County, said the county has an interest in the regulation of marriages because it licenses and performs them. Nearly 70 percent of residents casting ballots there in November 2008 voted to approve Prop. 8.

In an interview Monday, attorney Robert Tyler accused Walker of a "calculated" decision to keep Imperial County out of the case while, at the same time, casting doubt on the standing of Prop. 8 proponents.

Wednesday, January 13, 2010

Supreme Court indefinitely blocks YouTube broadcast of Prop 8 Trial

From the San Jose Mercury News:

With a 5-4 ruling, the U.S. Supreme Court has decided to keep the Prop 8 trial dark on the Web, rejecting Judge Vaughn Walker's attempt to broadcast the proceedings on the federal court's Web site by using YouTube., as well as allowing it to be circulating for viewing at various federal courthouses around the West. The majority opinion said that Walker and officials with the 9th Circuit Judicial Conference, including Chief 9th Circuit Judge Alex Kozinski, did not follow proper procedures in changing federal court rules that would allow the broadast. The majority stressed that it was not "expressing any view on whether such trials should be broadcast." Justice Stephen Breyer, writing for the four dissenters, decried the decision, saying there was no reason to interfere with the broadcast and that there would not be any harm in allowing the webcast.