Dr. Jillian T. Weiss

Will the Supreme Court Reinstate the Stay on the DADT Ban?

Filed By Dr. Jillian T. Weiss | July 07, 2011 9:00 AM | comments

Filed in: Politics
Tags: Don't Ask Don't Tell, gay servicemembers, Judge Walker, Ninth Circuit, Prop 8, unconstitutional

Thumbnail image for equal_protection_supreme_court.jpgYesterday, the Ninth Circuit U.S. Court of Appeals issued a ruling lifting the stay that it had previously granted after its ruling that the Don't Ask Don't Tell anti-gay military policy is unconstitutional. In other words, the court has ruled that there is a world-wide ban on enforcement of Don't Ask Don't Tell, and that ban is now effective immediately. The government can appeal to the U.S. Supreme Court to reinstate the stay, so it is not yet clear that gay servicemembers are free and clear if they come out. Nonetheless, this is a very significant development.

The question on everyone's mind is whether the U.S. Supreme Court will reinstate the stay, again halting the ban on DADT.

The Ninth Circuit justified lifting the stay as follows:

"The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

What does this mean?

The Court referred to two cases that state the standards required for a stay. In the first, a Supreme Court ruling, Hilton v. Braunskill, 481 U.S. 770, 776 (1987), the Supreme Court struck down a stay of a ruling in favor of a prisoner in a criminal case, holding that the lower court had the right to keep the prisoner in custody despite the fact that the defendant won his case. It was not a great day for the rule of law, because it engrafted additional standards into criminal law that were not clearly there before. Nonetheless, the Court there reiterated the standards for a stay in civil litigation, such as the DADT case we are discussing here. That standard is:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

In other words, in granting the stay on the ruling that DADT is unconstitutional, the Ninth Circuit had to ask itself whether the government was the likely ultimate winner of the case (despite its loss in the Ninth Circuit), whether stopping DADT immediately would cause some harm to the government or other parties that could not be remedied later, and what the public interest is moving forward or keeping the status quo before the ruling of unconstitutionality. Even more briefly: Is moving forward on lifting DADT immediately a bad idea?

It's a very hard standard to meet, because courts generally want their rulings to move forward immediately. The government had to show it was going to be the ultimate winner and that some identifiable harm would result. Not an easy task. But the Ninth Circuit initially said that the government was right on those points.

But in Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011), the Ninth Circuit addressed a major problem in understanding the four point test listed above: how fully does each point have to be proven, or is there a "sliding scale" that allows less proof on one point if there is a great deal of proof on the others?

In the Alliance case, the Ninth Circuit said that there is a "sliding scale," and that the "likelihood of success on the merits" could be reduced to "serious questions," since there was a great deal of evidence of likely irreparable harm. Thus, the Court granted an injunction stopping a forest logging project, even though the Alliance didn't make a strong showing of ultimate success, because once you knock down trees you can't put them back up. They used a "sliding scale."

This "sliding scale" concept is somewhat novel, and the Supreme Court has not ruled on it, as far as I could tell in brief research. However, there are some other court opinions criticizing the Alliance standard. I will post on those later. This could be a hook for the Supreme Court to reinstate the stay. However, I understand that, because the Supreme Court is not currently in session, any petition to reinstate the stay would go to Justice Anthony Kennedy. Justice Kennedy is known as a "swing vote" on the Court because his libertarian leanings sometimes lead him to side with liberals, and sometimes with conservatives. In this case, my guess is that he would not want to stand in the way of the District Court ruling that DADTis unconstitutional.

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Aubrey Haltom | July 7, 2011 10:09 AM

I guess my first question would be - 'will the Obama DOJ file an appeal?' Then I'll start wondering about the US Supreme Court.

Bil's reporting re: the DOJ filing on the DOMA ruling by the US Bankruptcy Court left me frustrated again with the Obama Admin response. 'Filing paperwork' for Congress, when the Admin supposedly considers DOMA unconstitional, seems like they're trying to have it both ways - again.

Are they going to do the same with DADT?

I can't imagine that the Supreme Court would decide to reinstate the stay, no matter how much Scalia grinds his teeth and sputters. Look at the criteria:

1) The government must make a strong showing that they will succeed on the merits of their case. The government has instead made a strong showing that they will fail on the merits of their case. So they flunk this criterion.

2) There might be some "injury" or the other from not lifting the injunction, but the criterion is for a substantial injury. During the time that the injunction was in effect before, it caused no injury. The only party who could suffer direct injury is the military, which has already announced that it is ready to discontinue DADT within weeks. Can the stay be reinstated before it becomes moot? To get an emergency hearing, they must essentially argue that it is an emergency while they are simultaneously arguing that it is not an emergency. So they flunk this criterion.

3) The only other party interested in the proceeding are the military. They would have a difficult time arguing that speeding things up two weeks would cause substantial injury. So this criterion falls.

4) The legislation found it is in the public interest to repeal DADT. It can't be demonstrated that two or three weeks of DADT would benefit the public in any material way or that the lack of it would cause any substantial harm; the key words being "material" and "substantial." This criterion falls, but it doesn't matter because of the other three.

The government might send it Kennedy in order to lose their case on a higher level. The government can suffer political damage for not sending it to Kennedy, but Kennedy is immune to political damage. A decision at the Supreme Court level ends the issue once and for all, so sending it to Kennedy also removes any future nuisance.

No matter what the political theater, the stay will not be reinstated.

The administration is required to have it both ways.

The president (and thus the executive branch, of which the Justice Department is a part), is constitutionally required 1) to execute the laws, and 2) to defend the constitution. Now what happens if a law is unconstitutional? Only the judiciary can invalidate a law, so the executive branch must grit its teeth and enforce the unconstitutional law with as much grace and discretion as legal. But they must also protect the constitution from the unconstitutional law by arguing against it in court. Essentially, the Obama administration is pleading for relief from the court from enforcing unconstitutional laws. ( "Congress made me do it! Please make me stop!" only it's not funny, it's necessary.)

With certification almost done, I don't see why they'd bother re-instating the stay.

Is certification "almost done" though? And how long will it remain "almost done"? Is it completely impossible that it will remain "almost done" for the foreseeable future - possibly many years?

Other countries took a maximum of 3 months to implement similar policies. The UK did it overnight. Even taking into account American Exceptionalism, it's been a long time, and if 6 months, why not 60? Or 600? What advantage is there in not proceeding "with all deliberate haste", ie, with no progress at all? I don't see a political downside here - and I think the courts agreed, which is why this decision was reached.

Scott Burkey Scott Burkey | July 8, 2011 9:03 AM

Being the genetically-programmed-for-cynicism student of human nature that I am... I can't help getting the notion that all the "within weeks" blovation that we've been getting is just that - hot air up our collective hoop-skirts. After all, they've been feeding us that line for two weeks already. There's been no visible, nor any reported, changes at the Pentagon on the policy during that time - so I have no reason to believe the "within weeks" mantra.
I say let the 9th Circuit ruling stand, and shut up about it already. England, Canada, Australia and Israel have long proven our craven policy of DADT discrimination to be a shameful mark on our military and its history. For that matter, the ancient Greeks were wiser than our DADT-era military leaders - anybody remember the Sacred Band of Thebes?

The Air Force, Marines and Navy have all completed their personnel training, and the Army is reported to be 75% complete. The reportage seems to indicate that certification would be complete by some time in September.

Having spent two years in US Army ROTC summer camps back in the mid-1970's, I have had a taste of US Army training. I don't think there is any intentional delay, it is just that the Army is by far the largest of the US military services, and it really does take time for such a large organization to get anything done. Adages like "Hurry up and wait" and acronyms like "SNAFU" have their origins in the military.

There does not seem to have been any foot-dragging. The Marines made it a point to be the first - and while the Marine commandant had previously expressed opposition to ending DADT, he made a huge impression, once the orders came down, by spearheading prompt compliance.

While the UK may have been able to do it overnight, I don't think the UK has anywhere near the numbers of Christianists (of the more fundamentalist sort) in the population, and in the military, that the US has.

From an historical perspective, the racial integration ordered by President Truman took time to implement, and while racism is still an issue in the general US population, there is less racism in the military than in the general population.

The military's handling of the intergration of women into the services has been problematic, though. The military's handling of rape and sexual abuse issues has been less than stellar, and reminds me a bit of the Roman Catholic Church's historic attitude about priestly pedophilia. Unlike the success story with racism, the incidence of rape and (heterosexual) sexual abuse is higher in the military than it is in the general civilian population.

The success of the repeal of DADT and the permitting of open service by gays and lesbians won't be measured by the ending of the policy, whether by court order or through the certification process. It won;t be measured until years doen the line.

I hope that the result will be a military in which soldiers, sailors, marines, and air personnel from various different backgrounds and orientations are able to work together regardless of their differences. It is likely to be a leavening for the general population as well.

Unfortunately, I think that in the early years of assimilation, there is likely to be a rise in incidents of anti-gay violence. If the military cracks down on it, then the incedence of incidents will fall. If the brass start sweeping things under the rug, the situation may end up being more like the situation with women. Given the somwehat macho element of military culture, one might also expect incidents where non-gay-oriented macho-type soldiers (the equivalent of macho straight male prison inmates deprived of access to women) will commit the kind of non-consensual sexual abuse or rape on gay soldiers (particularly those perceived as "effeminate") - and given the military's "sweep-it-under-the-rug" attitude on heterosexual rape, one might be concerned about an increase in these incidents as well.

I do not expect every gay or lesbian individual in the service to "come out" even when it won't involve a discharge. I know many people in the general civilian population who are not out, or who are out only in safe spaces. But at least the worry about discharges will be lessened.

BTW, I really do not anticipate that there will be an appeal to the SCOTUS. This is likely to be a final order.

That was s'posed to be a reply to Zoe . . .

Om Kalthoum | July 8, 2011 11:56 AM

I thought her questions where just rhetorical. But thanks for the reality-based response.