The Obama administration filed an emergency request with the Ninth Circuit Court of Appeals on Wednesday asking for a stay on a federal judge’s injunction that stopped the military from enforcing its “don’t ask, don’t tell” ban on openly gay members, according to new reports.
US District Court Judge Virginia Phillips ruled the Clinton-era “don’t ask, don’t tell” policy unconstitutional in September and, last week, she ordered a stop to the ban. On Monday, Phillips rejected the government’s request for a temporary stay on her injunction.
The Pentagon has ordered military recruiters to begin accepting openly gay applicants.
President Obama wants Congress to repeal the ban, but Senate Democrats failed to pass repeal legislation last month. His Justice Department is generally expected to defend US laws in court and is arguing that immediately stopping “don’t ask, don’t tell” jeopardizes national security.
The “don’t ask, don’t tell” appeal is not the only gay rights issues pending in the appeals court. On Monday night, the plaintiffs in the case that overturned California’s Proposition 8 ban on gay marriages filed their briefs with the Ninth Circuit, and a member of the legal team said their case has implications for the Obama administration.
Theodore Boutrous, a plaintiff attorney in the Proposition 8 case, said President Obama could take a note from California Attorney General Jerry Brown. In September, Brown refused to appeal Chief Justice Vaughn Walker’s sweeping ruling that struck down Proposition 8 because he believes the ban on gay marriage is unconstitutional.
“It happens every once in a while on the federal level,” Boutrous said. “It would be appropriate for the Obama administration to say yes, ‘don’t ask, don’t tell’ is unconstitutional.”
Conservative groups failed at forcing Brown and the state of California to defend its law and appeal the Walker ruling and are defending Proposition 8 themselves.
Proponents of Proposition 8 filed their appeal briefs last month, arguing that Walker ignored evidence that procreation is an “animating” purpose of marriage. They also argued that Walker’s ruling was heavily one sided.
Walker’s historic ruling established several important facts, including that homosexuality is a legitimate sexual orientation and children stand to benefit from gay marriage.
Boutrous said the proponents distorted what happened during the trial and failed to prove that gay marriage damages children. He said the facts are on the side of the plaintiffs.
“Our record is overwhelming,” Boutrous said. “For an appeal to have that kind of factual record to work with against an appeal without one is giving us an advantage.”
Boutrous and his team represent two gay couples who wish to be married, but could not under Proposition 8.