Ninth Circuit: "Don't ask, don't tell" must end immediately

The court’s order runs only two pages so take 30 seconds to read it. Remember last fall when a California district court ruled that DADT was unconstitutional? The Ninth Circuit issued a stay at the time postponing enforcement of the ruling until the appeal, but two things happened in the interim: Congress voted to repeal DADT in December and the White House decided in February that it won’t enforce DOMA anymore. Hence today’s lifting of the stay. If the executive and legislature are moving towards equal treatment for gays, the court figured, then what’s the argument for upholding the stay?

In a brief two-page order, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said the “don’t ask, don’t tell” policy must be lifted now that the Obama administration has concluded it’s unconstitutional to treat gay Americans differently under the law.

The ruling was the latest legal development in the effort by gay rights supporters to end the policy. It came in response to a motion brought by Log Cabin Republicans, a group for gay GOP members, which last year persuaded a lower court judge to declare the ban unconstitutional…

Dan Woods, the lawyer representing Log Cabin Republicans, said that unless the administration appeals the order to the U.S. Supreme Court, “don’t ask, don’t tell is over.”

Of note: The three-judge panel, which was unanimous, included Reagan appointee and conservative judicial rock star Alex Kozinski. The service branches have been instructing troops on the repeal of DADT for six months and a Pentagon spokesman says they’re just weeks away from certifying that it won’t affect military readiness, so from a practical standpoint the ruling’s basically irrelevant. Legally, though, it’s interesting to see the court give weight to the White House’s theory that DOMA is unconstitutional because laws targeting gays deserve “heightened scrutiny” under the Equal Protection Clause. They’re not ruling on the merits of that argument here, merely noting it as part of the balance of equities in deciding whether it’s time to lift the stay, but if you’re thinking ahead to a potential Supreme Court ruling on gay marriage, the WH DOMA argument is potentially more important to gay rights activists than congressional repeal of DADT is. And now, thanks to this, it’s in the mix of considerations at the appellate level. Don’t forget either that Anthony Kennedy, in his most famous opinion on gay rights, spent time looking at what other contemporary legal authorities — from law professors to state courts to European courts — thought of anti-sodomy laws. If he’s going to do something bold, he’ll want lots of political cover for it, and the White House’s DOMA opinion and Congress’s DADT repeal sets him up perfectly. Just a matter of time.