“Don’t Ask, Don’t Tell”: A Legal Analysis
Congressional Research Service 14
military context will survive Constitutional scrutiny if they ‘restrict speech no more than is
reasonably necessary to protect the substantial government interest.’”
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Examining the evidentiary record, the court cited examples regarding the scope and effect of
DADT restrictions on speech, including (1) witness testimony indicating that DADT prevented
gay service members from discussing their personal lives with their colleagues, thereby
undermining trust and unit cohesion; (2) testimony regarding the chilling effect that DADT had
on the reporting of violations of military codes of conduct; (3) evidence that DADT prevented
gay service members from openly joining organizations or lawsuits that challenge DADT, thereby
preventing them from exercising their legal rights; and (4) evidence that DADT punished gay
service members for engaging in purely private behavior, such as writing letters or e-mails.
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Therefore, the court concluded that DADT restricted a far greater range of speech than was
necessary to protect the government’s interests and frequently undermined military readiness and
unit cohesion rather than advance these goals.
Having concluded that DADT violated both the Fifth and First Amendments, the court ruled that
the plaintiff was entitled to a permanent injunction barring the enforcement of DADT.
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On
October 12, 2010, the court issued a nationwide injunction that permanently and immediately
enjoined DOD from applying or enforcing DADT against any service member.
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Although DOD
initially complied with the injunction, the government also filed a notice of its intent to appeal the
decision to the Ninth Circuit and requested that the district court stay the injunction pending
appeal, as well as issue a temporary administrative stay.
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On October 19, 2010, the district court
denied the government’s request for an emergency stay of its injunction,
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and the government
subsequently appealed by seeking a stay from the Ninth Circuit.
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On October 20, 2010, the Ninth
Circuit granted the government’s request for a temporary stay of the injunction while the court
considered whether to issue a stay of the injunction for the duration of the appeals process.
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On
November 1, 2010, the Ninth Circuit ruled in favor of the government and issued a stay of the
district court’s injunction pending appeal,
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meaning that DOD was permitted to continue to apply
and enforce DADT while awaiting a final ruling from the Ninth Circuit on the merits of the
appeal.
On July 6, 2011, the Ninth Circuit lifted its stay of the district court’s ruling, citing government
briefs in a lawsuit involving DOMA as evidence that the Obama Administration no longer
intended to defend the constitutionality of laws that contain classifications based on sexual
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Id. at *114 (citing Brown v. Glines, 444 U.S. 348, 355 (1980)).
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Id. at *114-19.
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Id. at *120.
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Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010).
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Notice of Appeal, Log Cabin Republicans v. United States, No. CV 04-08425-VAP (C.D. Cal. filed October 14,
2010); Emergency Application to Stay Pending Appeal, Log Cabin Republicans v. United States, No. CV 04-08425-
VAP (C.D. Cal. filed October 14, 2010).
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Order Denying Defendant’s Ex Parte Application for Entry of an Emergency Stay, Log Cabin Republicans v. United
States, No. CV 04-08425-VAP (C.D. Cal. filed October 19, 2010).
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Government’s Emergency Motion for Stay Pending Appeal Under Circuit Rule 27-3 and for Temporary
Administrative Stay, Log Cabin Republicans v. United States, No. 10-56634 (Ninth Cir. filed October 20, 2010).
80
Log Cabin Republicans v. United States, 2010 U.S. App. LEXIS 21651 (9
th
Cir. Cal. October 20, 2010).
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Log Cabin Republicans v. United States, 2010 U.S. App. LEXIS 22655 (9
th
Cir. Cal. November 1, 2010), application
denied, Log Cabin Republicans v. United States, 131 S. Ct. 589 (2010).