Constitutional Law

9th Circuit Grants DOJ's Request for Stay of 'Don't Ask, Don't Tell'


Late Wednesday, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals granted an emergency request from the Justice Department for a stay that would allow the Pentagon to continue to enforce the “don’t ask, don’t tell” law, which bans gays from openly serving in the military.

U.S. District Judge Virginia Phillips of the Central District of California ruled in September that “don’t ask, don’t tell” violates the First Amendment and due process rights of service members and issued an injunction last week stopping the military from enforcing the policy. The DOJ asked Phillips for a stay two days later, and the following day, the Pentagon advised military recruiters that they could accept openly gay applicants. On Tuesday night, Phillips denied the stay, prompting the DOJ to ask the 9th Circuit for an emergency stay Wednesday.

The administrative stay will be in effect while the 9th circuit considers whether to issue a longer stay, the New York Times reported. A decision on a longer stay could be made as early as next week, and the Log Cabin Republicans, the gay rights group that challenged the law were told in Wednesday’s order (PDF) to have briefs prepared on the issue by Monday.

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