The Ninth Circuit Court of Appeals on Wednesday ordered the federal government to stop enforcing “Don’t Ask, Don’t Tell,” the military’s policy of discharging openly gay servicemen and women, citing the government’s recent opposition to policies that discriminate based on sexuality.
A lower court judge had ruled in October that DADT is unconstitutional, but after the government appealed, the Ninth Circuit granted a stay of eliminating the policy until it could rule. On Wednesday the panel lifted the stay.From the San Francisco Chronicle:
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.
In the decision, the panel also cited the Department of Justice’s decision in February to no longer defend the Defense of Marriage Act because it is unconstitutional. “The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Attorney General Eric Holder wrote at the time.
The DOJ also filed a forceful brief last week in support of a female federal court employee who was suing the federal government for denying her access to equal benefits for her wife. In the brief, the DOJ acknowledged that “the federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals” and that DOMA “was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships.”
In its decision Wednesday, the Ninth Circuit cited that brief. “In the context of the Defense of Marriage Act,” the Ninth Circuit wrote, “the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny.”
“The circumstances and balance of hardships have changed,” the Ninth Circuit wrote, “and [the government] can no longer satisfy the demanding standard for issuance of a stay.”