The Supreme Court has declined to intervene in ongoing federal court review of "Don't Ask, Don't Tell." The Court has rejected a request from the Log Cabin Republicans to vacate the stay of an injunction barring enforcement of the military's ban on openly gay and lesbian servicemembers by the Ninth Circuit Court of Appeals.
The Supreme Court, without noting any dissent, agreed on Friday to leave the military’s “don’t ask/don’t tell” policy in full effect while its constitutionality is under review in a lower court. Justice Anthony M. Kennedy referred the issue to the full Court. Justice Elena Kagan took no part in the order.
As a result of the order, the policy will remain in effect at least through mid-March, unless Congress in the meantime voted to repeal it legislatively — an unlikely prospect, according to most observers. The Ninth Circuit Court is reviewing a federal judge’s decision to strike down the policy and to impose a worldwide ban on its enforcement. The Circuit Court’s briefing schedule, however, will not be completed until late February or early March, and a hearing and decision would come after that.
The policy was lifted for eight days in October after U.S. District Judge Virginia Phillips issued a landmark ruling when she declared the 1993 law violates the First and Fifth Amendment rights of gay and lesbians. The Obama Administration asked the Ninth Circuit Court of Appeals to reinstate the ban until it could hear arguments on the broader constitutional issues next year.
SCOTUS Blog notes that it was "a significant development" that Justice Elena Kagan did not take part in the court's consideration of the issue. Kagan served as the Obama Administration's Solicitor General before her confirmation in August. Kagan argued several DADT-related cases before SCOTUS and her recusal "raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it."