(photo: afagen)

The Ninth Circuit Court of Appeals has lifted a stay on a ruling from last year, that effectively bans the military from enforcing the Don’t Ask Don’t Tell policy. While this seems like a fait accompli because repeal has been passed legislatively, and certification should come in a matter of weeks, it’s actually a pretty important decision.

Last October, a district court found Don’t Ask Don’t Tell unconstitutional. The government asked for a stay of the ruling on the grounds that a reconsideration of the law was making its way through the courts. In their lifting of that stay today, the court said they relied on the Justice Department’s new policy, as of February, to disavow DOMA on the basis that discrimination based on sexual orientation demands “heightened scrutiny.” In fact, they said precisely that: “In the context of the Defense of Marriage Act, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny.”

The court noted that Congress has voted to repeal “don’t ask, don’t tell” as soon as President Obama and the Pentagon certify that the change will not interfere with military readiness or recruiting. The administration has said most troops should be trained for the new policy change by mid-summer, although it had told the court the law should probably stay in effect for the rest of the year.

The panel also cited Obama’s decision in February to withdraw support from another federal law denying benefits to married same-sex couples, and his newly announced view that laws discriminating against gays and lesbians should be declared unconstitutional unless they serve some compelling government need.

In other words, the courts are following the evolving determinations of one of the litigants in the case. If repeal has passed and is about to be certified, and if the same Administration is withdrawing their support for laws discriminating against same-sex couples on the grounds that they are unconstitutional, the court had no choice but to lift the stay. “The circumstances and balance of hardships have changed,” wrote the Ninth Circuit, “and [the government] can no longer satisfy the demanding standard for issuance of a stay.”  [cont’d.]

This becomes very important for future cases. It means that the courts are generally accepting of the heightened scrutiny standard, at least in this case. Because the government was previously defending the law, and essentially abandoned it with their DOMA brief, that had an impact on why the stay was lifted. But if this perspective is maintained, it’s really just a matter of time before other discriminatory laws against the LGBT community get thrown out.

Not to mention, if the government doesn’t appeal (and I don’t see how they can), DADT is unenforceable right now.

Incidentally, Alex Kozinski, the Chief Justice of the Ninth Circuit and the author of this opinion, clerked for Anthony Kennedy, the swing vote on the Supreme Court on these issues.

David Dayen

David Dayen