High Court won't lift military gay Ban 'Don't Ask, Don't Tell', Kagan does not take part

11/12/2010COMMENTS (0)


WASHINGTON, Nov 12 (Reuters Legal) - The U.S. Supreme Court on Friday refused to vacate the Ninth Circuit's stay of a ruling that strikes down the Pentagon's ban on allowing openly gay men and women from serving in the U.S. military.

The case was brought by the Log Cabin Republicans, a gay rights group. They sought to lift the judicial order that permits the Pentagon to continue enforcing its "Don't ask, don't tell" policy.

That policy, adopted in 1993, requires homosexual soldiers to keep their sexual orientation private.

The Log Cabin Republicans had won a district court ruling last month that found the policy was unconstitutional and barred the military from enforcing it. The Obama administration appealed to the U.S. Court of Appeals for the Ninth Circuit and won permission to continue enforcing it while that court reviewed the case.

The Log Cabin Republicans asked the Supreme Court to immediately lift the stay.

The request was made to Justice Anthony Kennedy because he is responsible for appeals from the Ninth Circuit. He referred it to the full court, which denied the request without comment.

In a potentially significant development, Justice Elena Kagan, who had been involved in the matter as solicitor general, did not take part in today's ruling. Kagan's absence means the conservative wing of the court would effectively prevail if the Supreme Court considers the case on the merits, said Lyle Denniston of SCOTUS blog. When the Court cannot reach a majority opinion, it issues a one-line decision affirming the lower court's ruling.

"You can assume pretty strongly that the Chief Justice, Scalia, Alito and Thomas will support the policy," said Denniston. "If Kennedy wants to strike it down, he will only have three other allies."

The policy has also been the subject of legislative debate. Obama and military leaders have said they want Congress to pass a new law rescinding "Don't ask, don't tell." While such legislation has passed the House of Representatives, it has been stymied in the Senate though lawmakers plan to try again next week.

The Supreme Court file is Log Cabin Republicans v. United States et al, no. 10A465. Daniel Woods of White & Case represented the petitioners while Neal Katyal, Acting Solicitor General, is listed as attorney for the respondents.

(Reporting by Jeremy Pelofsky of Reuters; Additional reporting by Jeff Roberts of Reuters Legal)


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