As you know, DADT was officially repealed effective Sept 20th. But in parallel to the legislative process that led to the repeal, there was also a case brought in federal court by the Log Cabin Republicans. The Federal Judge, Virginia Phillips, declared DADT unconstitutional.
This is important, because this finding would prevent DADT being reinstated...as the Republican presidential candidates have all vowed to do.
The Obama Administration Department of Justice appealed (so much for our fierce advocate) and asked a panel of the 9th circuit Court of Appeals to declare the Judge's finding "moot", since DADT was repealed. But they also asked that the original finding be "vacated" or erased.
Shockingly, they succeeded on both these arguments, by a unanimous decision of 3 of the judges in the 9th circuit.
Scotusblog tells us:
Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. ...
Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books. Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion....
Judge O’Scannlain, however, wrote explicitly that “Lawrence did not establish any fundamental right.” It did not give lower courts any basis, the judge added, for creating any new fundamental rights for gays. He lambasted Judge Phillips for the legal rationale she had used for nullifying the military gay ban, contending that she had not followed the formula that the Supreme Court itself had laid down for judging claims of violations of so-called “substantive due process” guarantees....
It is not a common practice for federal judges, when a case has come to a formal end without a final ruling on the merits, to say how they would have voted. That Judge O’Scannlain did so suggested how affronted he was by Judge Phillips’ ruling.
Why is this bad? Well, it's the 9th circuit. That's who's hearing the Prop8 appeal. Different judges, sure, but this shows that there is no sure thing in the Prop8 case. Imagine the effect if Judge Vaughn Walker's carefully done case was vacated, erased, and eliminated as a source of precedent or reference.
It could happen. It could happen at ANY POINT. And that's why it's a real problem that all the eggs are in the court's basket, and there will be no attempt to reverse Prop8 where it needs to be reversed, AT THE BALLOT BOX.