Greater and lesser harm

I think I have this right… Log Cabin Republicans files suit to get the military Don't Ask, Don't Tell policy overturned. They succeeded in a district court not long before Congress passed the complicated repeal law. The 9th Circuit said, fine, let the process work its way out and the LCR ruling is stayed.

LCR went back to court and said DADT is still in place and the government's process is taking too long (and gay soldiers are still being discharged). A federal appeals court agreed, lifting the 9th Circuit's stay. DADT is unconstitutional and must be ended now, with no need to wait for Dept. of Defense certification and a 60 day waiting period. Yeah, the whole thing is a bit confusing right now because it doesn't seem proper for a lower court to lift a stay set in place by an upper court and I'm not real sure which court has done what.

There are some interesting aspects of the ruling, no matter which court it came from.

This time around it is unlikely to be appealed. I've heard from other reports that the Dept. of Defense has agreed to the ruling and will assume that DADT must be ended now.

It means that Congress or a future president cannot reinstate DADT. Matters of housing or full inclusion are not simply policy (some differences maintained because of Defense of Marriage Act) but could be constitutionally challenged in court.

The big change is that a court has determined a stay of a discriminatory policy is more harmful to gays than to those who want to discriminate. Read that one carefully. The anti-gay crowd has been claiming harm. This panel of judges say that harm isn't as bad as the harm done to gay people. The declaration that the Calif. gay marriage law is unconstitutional is also under a stay. Look for the lawyers in that case to ask that stay be lifted too.