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Ninth Circuit Court of Appeals Lifts Stay on Rogue Log Cabin Ruling

August 16, 2011
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Anyone who doubts how radical the objectives of the Obama administration are, in harmony with LGBT (lesbian, gay, bisexual, transgender) Left groups, should take a look at recent maneuverings in the west-coast Ninth Circuit Court of Appeals.

On July 6, the Ninth Circuit lifted a stay that it had previously imposed on a worldwide injunction issued by District Judge Virginia Phillips in a case brought by the deceptively-named Log Cabin Republicans.  In September 2010, Judge Phillips exceeded her authority and  presumed to act as “Supreme Judicial Commander of the U.S. Military when she declared the 1993 law regarding homosexuals unconstitutional, and ordered the DoD to stop enforcing it.  


The Ninth Circuit panel lifted the stay and ordered the Defense Department to begin implementing the repeal immediately.  A new twist occurred when the panel’s ruling included a reference to a brief filed by Attorney General Eric Holder in another California lawsuit.  That case (Golinski vs. US Office of Personnel Management) was filed by two lesbians challenging the denial of marriage benefits due to the Defense of Marriage Act (DOMA), a law defining marriage as the union of a man and a woman.

The astonishing brief that Attorney General Holder filed on July 1, just before the July 4 weekend, argued that the courts must treat “sexual orientation” as a special class, in the same way that “heightened scrutiny” applies in racial discrimination cases.  The Holder brief was filed in opposition to another brief that Congress had filed in defense of the DOMA. 


Holder's brief also claimed that homosexuals are entitled to special treatment due their impaired political clout−an argument belied by the government's filing of the brief itself.  Private attorney Paul Clement, who Congress hired to make the case that the Justice Department refused to make, filed a strong brief defending the DOMA in the Golinski case. 


Within days, the new Holder attack on the DOMA was cited by the Ninth Circuit in a ruling favoring the Log Cabin group.  The DoD asked for reconsideration, and it was quickly granted with a typically peculiar ruling. 


The Justice Department argued that the “new” version of the Section 654, Title 10, as amended when Congress passed repeal legislation with delayed implementation, should be upheld as constitutional.  This argument fell far short of a principled argument for the 1993 law, which is always mislabeled "Don't Ask, Don't Tell," but the Justice Department did not want the Ninth Circuit to uphold the law by affirming the sweeping ruling of Judge Phillips.  If recognized by the higher court, the Phillips decision in the Log Cabin case could set a new precedent that would cause enormous problems for the military in the future. 


In yet another strange decision that reaffirmed its poor reputation, the Ninth Circuit Court of Appeals followed the Justice Department's suggestion that it should recognize the amended 1993 law, Section 654, Title 10, USC, which President Obama has "certified" for full repeal on September 21.  Never mind that the legislation in question, which passed in December 2010, was never even considered  by Virginia Phillips, the U.S. District Judge in San Diego.  (Her opinion was handed down in September 2010.)  The political end, it seems, justifies irregular judicial means.


The following articles provide more information on the legal morass created by the administration in its relentless pursuit of the LGBT Law:


 

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More background information and historic documents on this topic may be available in the 'Essential Resources' section of this website, or in a previous edition of CMR E-Notes, archived here.