Justice Department’s unexpected filing puts the 9th Circuit Court of Appeals back in LGBT spotlight

The Justice Department has filed a notice of appeal and a motion to stay the enforcement of a worldwide injunction barring enforcement of “don’t ask, don’t tell,” the law that bans open homosexuals from serving in the military.

In court filings on Thursday, the Justice Department, citing “serious legal questions,” said the military would be “irreparably harmed” if U.S. District Judge Virginia Phillips failed to stay her injunction while the government pursues an appeal.

Phillips, who ruled on Sept. 9 that “don’t ask, don’t tell” was unconstitutional, issued her injunction on Tuesday.

“Enforcement of the statute should not be halted by court order until and unless there is a final, non-appealable decision holding the statute to be unconstitutional,” wrote Paul G. Freeborne, a trial attorney at the Justice Department’s civil division in Washington, who litigated the case. “The injunction also requires an immediate and dramatic change in policy without allowing time to do so in an orderly and comprehensive way.”

Government lawyers asked Phillips to rule by Monday on their stay request, “given the urgency and gravity of the issues.”

The Justice Department also filed court papers indicating that three members of its civil division’s appellate staff in Washington — Anthony Steinmeyer, Henry Whitaker and August Flentje — would handle the government’s appeal.

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