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SCOTUSblogUPDATE 1:51 p.m.: Military gay ban intact
(UPDATED) Without noting a dissent, but with Justice Kagan not taking part, the Court denied a gay rights advocacy group’s plea to block the military from enforcing the 1993 law that bars gays and lesbians from serving openly in the services. The order means the policy will remain in effect at least through March, unless Congress repeals it — an unlikely prospect.
UPDATE 1:51 p.m. The Supreme Court, without noting any dissent, agreed on Friday to leave the military’s “don’t ask/don’t tell” policy in full effect while its constitutionality is under review in a lower court. Justice Anthony M. Kennedy referred the issue to the full Court. Justice Elena Kagan took no part in the order.
As a result of the order, the policy will remain in effect at least through mid-March, unless Congress in the meantime voted to repeal it legislatively — an unlikely prospect, according to most observers. The Ninth Circuit Court is reviewing a federal judge’s decision to strike down the policy and to impose a worldwide ban on its enforcement. The Circuit Court’s briefing schedule, however, will not be completed until late February or early March, and a hearing and decision would come after that.
The order Friday technically denied a request (application 10A465) to lift a Circuit Court stay of the judge’s decision — in order words, the Justices were asked to allow District Judge Virginia A. Phillips’ ruling to go into effect pending the appeal in the Circuit Court and, perhaps ultimately, in the Supreme Court. Because the Justices’ order was a complete denial, it meant that they had turned aside not only a plea to block the policy in full, but also an alternative request at least to stop the Pentagon from ordering any discharges under the policy during the appeal.
While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development. It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one. Should the Ninth Circuit Court upheld the policy, that result would simply be affirmed, without an opinion, if the Justices were actually to divide 4-4 in reaction to it.
Justice Kagan, in her former role as U.S. Solicitor General, had taken several actions on cases testing the constitutionality of the “don’t ask/don’t tell” policy and those actions, presumably, led her to disqualify herself. That is a choice left entirely up to each individual Justice.
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http://www.scotusblog.com/2010/11/new-plea-to-end-military-gay-ban/
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