The gay GOP group challenging the
military's ban on open gay service asked the Supreme Court on Friday
to reinstate a lower court's order against enforcement of the policy.
In their motion, lawyers for the Log
Cabin Republicans argue that the Ninth U.S. Circuit Court of Appeals
erred when it granted the Obama administration a permanent hold on a
trial judge's order to stop enforcing “Don't Ask, Don't Tell”
while the government prepares an appeal to U.S. District Judge
Virginia Phillips' September ruling striking down the law as
unconstitutional and subsequent injunction against its enforcement.
The injunction was in place for 8 days before the same court set
aside the order temporarily.
The Supreme Court is only being asked
to consider enforcement of the policy as an appeal moves forward.
Justice Anthony Kennedy has already
asked the federal government for its response to the plea, to be
filed by 5PM Wednesday.
“It is unfortunate the Obama Justice
Department has forced the Log Cabin Republicans to go to the Supreme
Court,” R. Clarke Cooper, the group's executive director, told CNN.
President Barack Obama has pledged to
repeal the law, but says he prefers a legislative solution and has
urged Congress to act. Senators are being lobbied to take a second
look at repeal during the upcoming lame-duck session that begins on
November 15. But recent GOP gains are certain to embolden Republican
senators who oppose repeal of the law that has ended the military
careers of more than 13,000 gay and bisexual service members.
Log Cabin lawyers in their filing
argued that the Ninth Circuit's order “was an abuse of discretion.”
“It ignored controlling precedent,
including Lawrence (Lawrence v. Texas). It sidestepped
the requirement that respondents show a likelihood of success on the
merits, a showing they failed to make. It gave no consideration
whatsoever to the injury that will befall the applicant from a stay.
And it applied the wrong standard to respondent's claim of
irreparable injury, which rested entirely on speculation, by
accepting as sufficient the respondents' 'colorable' assertions of
harm and injury, rather than requiring them to show a 'likelihood' of
irreparable injury as this Court's precedents dictate.”