The Department of Justice was dealt a partial victory on Friday. The Ninth reinstated DADT partially and temporarily. The military could continue to enforce it in regards to new recruits, admissions to military academies, and ROTC program (which are ironically, returning to the campuses, even as they continue to enforce DADT, and trans recruits will continue to be denied). Their order did prohibit "investigating, penalizing, or discharging" servicemembers under DADT.
Today, the Department of Justice said "not good enough." They filed another appeal for full reinstatement.
What the DOD did not get in Friday's reinstatment was the right to continue investigating, separation procedures and discharges.
Let's be clear about one thing.
Whether the DOD has the power to enforce the law or is forbidden to enforce the law has absolutely no bearing on whether this case ultimately is heard before the Supreme Court of the United States. The law will be on the books, whether the DOD can enforce it or not.
This is an inscrutable action, frankly bizarre when viewed in the light that they claim they are not investigating or discharging anyone.
It's sad. Yesterday, hundreds of gay and lesbian active duty soldiers took part in San Diego Gay Pride march. Reinstating the DOD's ability to investigate and discharge them will place them in needless jeopardy.
The DOJ's concluding paragraph:
For the foregoing reasons, as well as for the reasons advanced both in the government's reconsideration motion and in the letter brief attached to that reconsideration motion, the Court should reconsider its decision to lift the stay pending appeal, reinstate that stay, remove the case from the oral argument calendar, and permit the orderly process for repealing ? 654 to resume.
But, the stay was reinstated! They just told you had to stop "investigating, penalizing, or discharging" servicemembers. Why isn't that good enough?
