Yesterday, 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.