A three-judge panel of the Ninth Circuit Court of Appeals has put a temporary stay on the worldwide ban on discharges of gay and lesbian service members under Don’t Ask Don’t Tell. However, this doesn’t mean that stay will continue; in fact, the three judges haven’t even heard the case. Here’s the brief order:
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.
The Log Cabin Republicans will get an opportunity to plead their case to the Ninth Circuit, and then the decision on a stay will be made, sometime after October 25. I would assume that this comes together quickly and we’ll have a final answer on the stay by next week. Clearly the judges want to handle this quickly, as they’re not hearing oral arguments and not giving the Justice Department the opportunity to reply. But this temporary stay doesn’t mean anything one way or the other just yet. In fact, it may not impact military operations.
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. [The "additional guidance" -- likely reinstituting DADT enforcement -- could come at any time and without warning.]
The full appeals trial of Judge Virginia Phillips’ order wouldn’t be completed until at least March 2011, with filing deadlines taking place then.
What this means for gay service members who have attempted to re-enlist, like Lt. Dan Choi, is anybody’s guess at this point.