R. Clarke Cooper

The 9th Circuit U.S. Court of Appeals on Monday granted the government’s request to permanently delay enforcement of a lower court order to stop enforcement of Don’t Ask, Don’t Tell (DADT).

The announcement was a blow to activists who have been working against the federal law banning gays from the military, because it means the military can continue to investigate and discharge openly gay servicemembers under the law at least until the legal challenge has been resolved. While that is likely to be many more months, it is unclear how much impact the permanent stay will have on the number of discharges. On October 21, the Pentagon issued revised guidelines that require any discharge under DADT must now be approved by a Secretary of the military branch involved. That, in and of itself, was expected to slow or reduce discharges under the law.

The permanent stay puts more pressure on both President Obama and Congress to take action. Activists have been calling on the president to issue a “stop-loss” order—something he has authority to do during wartime—to end discharges, pending repeal of the law. The Senate is expected to take up debate on repeal during consideration of an annual defense spending measure, when Congress reconvenes in mid-November.

But it is only a minor setback for the Log Cabin Republicans’ lawsuit challenging the law. A U.S. District Court judge ruled in September that the law is unconstitutional, but the U.S. Department of Justice is appealing that decision to a 9th Circuit panel. The panel is expected to hear arguments on that appeal in February.

“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, executive director of Log Cabin Republicans, in a statement to press Monday night. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights.”

And though Cooper did not mention it, it’s very likely that Log Cabin attorneys will appeal the permanent stay order to the U.S. Supreme Court. That, however, is considered a long-shot effort.

The eight-page order cited the imperative of judicial deference “when Congress legislates under its authority to raise and support armies.” It also noted that federal district court Judge Virginia Phillips’ decision is “arguably at odds with the decisions of at least four” circuit court decisions around the country.

“We conclude that the public interest in ensuring orderly change of this magnitude in the military—if that is what is to happen—strongly militates in favor of a stay,” stated two of the three judges.

“Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.”

One judge dissented in part—William Fletcher, a Clinton appointee. He would have granted the stay of Judge Phillips’ decision in regards to discharges, but enforce the policy elsewhere—such as in recruiting practices and personnel manuals.

“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate,” said Peter Renn, an attorney with Lambda Legal Defense and Education Fund, which has filed an amicus brief in the case. “But it’s important to remember what today’s ruling was not:  a consideration of the merits of the case. That remains for another day.”