A three-judge panel of the 9th US Circuit Court of Appeals sided with the government when it upheld its prior stay of the controversial injunction issued against the military’s “Don’t ask, Don’t tell” policy.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

Importantly, the ruling may portend future issues in appeal.  First, the judges noted the judiciary “defers” to Congress’ ability to legislate armies, and they quoted Able v US:

Courts are ill-suited to second-guess military judgments that bear upon military capability and readiness.

Second, the judges acknowledged Judge Virginia Phillips may have, according to the Associated Press, “exceeded her authority” when she issued a ruling contrary to four other federal appeals court decisions.

The Plaintiffs, the Log Cabin Republicans, may now appeal to the full court or directly to the Supreme Court to reverse the stay.  The case itself is still under appeal separately.

As noted at Alliance Alert.