Barack Obama | Don't Ask, Don't Tell | Log Cabin Republicans | Military | News

Court Agrees to Hear Case Challenging 'Don't Ask, Don't Tell'

The Obama administration will go before a federal court next month in the awkward position of defending a policy which it also claims it is also actively working to repeal.

Soldier The AP: "A judge has agreed to hear a case challenging the U.S. government's 'don't ask, don't tell' policy against openly gay soldiers. Lawyer Dan Woods says U.S. District Court Judge Virginia A. Phillips in Riverside, Calif. agreed Monday to send the case to trial July 13. Woods is representing the Log Cabin Republicans, a group rights group. He says the group hopes to end the 1993 policy by having it declared unconstitutional. If the group wins, Woods says it could set a precedent for the entire nation."

Earlier this month, the Department of Justice asked the judge to defer proceedings in the case "because the political branches have taken concrete steps to facilitate repeal of the DADT statute."

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  1. BACKGROUND:

    This is but the latest in several rulins by the court in this case. Over the last year, the ODOJ has fougt fang and nail to kill it in brief after brief after brief [following ....wait for it....Solicitor General Elena Kagan's success in killing the suit a year ago by Jim Pietrangelo, arrested twice this year at the White House with Dan Choi].

    Using a similar tactic the Obama Mafia used in 1996 to get him elected to his first office in Chicago....invalidate the voting petition signatures of his challengers for the nomination.....the ODOJ tried to remove Servicemembers United cofounder Alex Nicholson, who was discharged under DADT, as a co-plaintiff claiming he was not a real member of LCR when the suit started.

    They also tried to have co-plaintiff "John Doe" disqualified, asserting that since he was still IN the military, serving in Iraq, he WASN'T BEING HURT BY IT.

    In February, they tried to have the case postponed alleging that the court should sit by while political discussion about repealing DADT continued [respinning that argument in May resulted in the court's decision above].

    In March, they quoted at length the 1993 homophobic opinions of Colin Powell about the justification for DADT even though Powell himself said in the weeks before their brief that he believed times had changed and it was reasonable to consider getting rid of DADT.

    In April, in a mindboggling twist of contradiction of saying one thing and DOING another that has become the hallmark of this administration, the ODOJ said in writing that the President, THEIR ultimate BOSS, didn't know what he was talking about in his remarks to LGBTs at the White House in June of 2009:

    When asked to admit that, as the President said, Don't Ask, Don't Tell "does not contribute to our national security," the government's response was "Deny." When asked to admit that, as the President said, Don't Ask, Don't Tell "weakens our national security," the government's response was "Deny." And, when asked to admit that, as the President said, that discharging service members pursuant to Don't Ask, Don't Tell "weakens our national security," the government's response was "Deny."

    By both defending unconstitutional laws THEY DON'T HAVE TO [despite the disingenous ravings of ObamaZombies like the self-described "LawDork"] and doing it in devious ways better suited to Chicago dirty politics than the pursuit of justice, the ODOJ has proven itself the enemy of many of the people who put them in power.

    And don't get me started on their heinous defense .... again led by Elena Kagan .... of Bush'es so-called "Patriot Act."

    Posted by: Michael @ LeonardMatlovich.com | Jun 29, 2010 1:30:49 PM


  2. The dept of justice has to defend federal laws regardless if the President agrees with the law or not.

    From a brief filed by the DOJ 8/17/09 regarding DOMA:

    With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

    There's already a process in place to repeal DADT; as long as congress can pass a bill, Obama will sign it into law as he's stated countless times.

    Posted by: Brian in Texas | Jun 29, 2010 2:02:07 PM


  3. Awkward? Talking out of both sides of his mouth is par for the course for Obama.

    Posted by: jomicur | Jun 29, 2010 2:24:13 PM


  4. Brian in Texas, you make very valid points. I agree with your comment.

    Posted by: Ed | Jun 29, 2010 4:59:52 PM


  5. @ Brian in Texas, still parroting the Obama Mafia's BIG LIE!

    "The President of the United States has an "undisputed right to... refuse to defend in court, statutes which he regards as unconstitutional."(1) Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986). This right is often exercised by directing the Department of Justice to challenge, rather than defend, an impugned statute.

    The Right to Refuse to Defend an Unconstitutional Statute

    The Justice Department has, historically, refused to defend statutes that are unconstitutional because they violate the rights of citizens(2) and statutes that are unconstitutional because they violate the separation of powers.(3) In 1946, the Justice Department argued against the constitutionality of a statute that directed the President to withhold compensation from three named employees. United States v. Lovett, 328 U.S. 303 (1946). In 1983, the Justice Department argued against the constitutionality of a legislative veto on citizenship applications. INS v. Chadha, 462 U.S. 919 (1983). In 1988, the Department of Justice challenged the constitutionality of the independent counsel statute. Morrison v. Olson, 487 U.S. 654 (1988).

    The Department of Justice may also notify Congress of a refusal to defend an impugned statute without appearing in court for either side. As recently as 2005, the Department of Justice notified congress that it would not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. ACLU et al., v. Norman Y. Mineta (civil action no. 04-0262)." - Emma Ruby-Sachs,criminal and constitutional law attorney.


    Posted by: Michael @ LeonardMatlovich.com | Jun 29, 2010 5:03:57 PM


  6. @ Michael: If what you're saying is true (and I'm not saying it isn't) then the Obama administration has some explaining to do. However, if Congress would stop dragging its feet and repeal the law already, this wouldn't even be news. I'm not defending Obama's history of standing up for gay folk across America. But he has said if DADT is repealed he will sign it into law. (Again, if what you're saying is true then he's talking out of both sides of his mouth. But I've come to expect as much when it comes to us.) So if Congress weren't so afraid of losing their jobs and repeal this thing already, this wouldn't even be an issue - we hope.

    Posted by: Stephen | Jun 29, 2010 5:19:24 PM


  7. @ Stephen:

    In one of the neatest tricks of his administration so far, Obama has rigged the clock so that the earliest we will have any substantial evidence whether or not he has FINALLY decided to stop discharges [which it cannot be emphasized too often is THE goal not just repeal of "DADT"] is sometime after December 1st when the phony "study" is to be released.

    Even then, because last month he took the five-year old Military Readiness Enhancement Act bill...which would have GUARANTEED an end to discharges within six months....that he promised to start personally fighting for when he took office...and wiped Gates' ass with it and threw it away....DADT can be repealed with NOTHING to prevent discharges from continuing under the pre-DADT policy which kicked out over 100,000.

    "Pelosi said the House weakened its repeal language to mollify the White House." - Huffington Post, June 3, 2010.

    WHY would the White House insist on that?

    "Military leaders refused to accept language that would bar discrimination, so the clause was dropped." - Huffington Post, June 3, 2010.

    WHY would he agree to that?

    As I said, we won't know the answers for months, but that doesn't make the questions unfair.

    Posted by: Michael @ LeonardMatlovich.com | Jun 29, 2010 5:30:43 PM


  8. @ Michael

    I think the key word here is "unconstitutional". Just because the White House, the chairman of the joint chiefs, and most members of congress believe that DADT is a bad and unfair policy, doesn't mean they believe it is unconstitutional. The military bars a lot of people from service for many different reasons and they would cite national security interests or military readiness as that reason which they hold to a higher degree than personal fairness to one group of people or person.

    The language that was changed in the repeal law that supposedly "softens" the bill concerns me too, but the only reason I could think of that the White House would do this is for political reasons and to not to step on the toes of the military and the process they ALREADY have in place to repeal DADT. (The "study" merited or not will be done before the end of the year.)

    Democratic presidents have to tread very lightly when it comes to military and national security issues because they are already perceived to be weak in those areaa. VP Cheney and other republican and conservative hacks have said Obama has "made the country less safe". Think of Michael Dukakis in that tank with the helmet or Bill Clinton's contentious relationship with the military because he was perceived as a draft dodger by many in the service.

    In Washington I believe there is a lot of "theatre" and I think this study is an example of that. They already know that letting gays serve openly would not hurt the military in anyway and they know that gays have served for decades. I think the study is just for the critics (some repubs, right wing Christians, military traditionalists) so they can say, "well see we did a months long through survey and found no applicable reason to bar gays from openly serving" Then that will be the end of story.

    Posted by: Brian in Texas | Jun 29, 2010 6:17:27 PM


  9. I genuinely hope you're right about the end result, Brian, and what looks like a duck, walks like a duck, and talks like a duck turns out to be a bird of paradise.

    Posted by: Michael @ LeonardMatlovich.com | Jun 29, 2010 7:55:17 PM


  10. And when it come to Obama with Michael she means it. But OH NO not That damn Bill Clinton!

    Posted by: Lovely | Jun 30, 2010 1:51:37 AM


  11. Exactly, Lovely. Talk about hypocrisy at its worst with Michael.

    Posted by: Ed | Jun 30, 2010 1:04:21 PM


  12. God bless Lt. Dan Choi and Capt. James Pietrangelo. They are the real deal, and are risking much in standing up for what they believe. Obama is still missing in action. He could have easily issued an executive order suspending further dismissals under DADT while Congress considered the time-table on implementation on repealing DADT. He has repeatedly refused to do so. Instead, he has actually threatened to veto the bill that mandates changes to DADT (because of other reasons), & once again gays are used as a disposable bargaining chip in the political process. Today's idiotic speech on illegal immigration ("undocumented future democrats") is another time-wasting diversion meant to take minds off failures in promised policy changes, like eliminating DADT.

    Posted by: Jerry | Jul 1, 2010 8:25:09 PM


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