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Department of Justice Requests Deferral in DADT Case

The Department of Justice has asked a judge to defer a ruling in a case brought against "Don't Ask, Don't Tell" because of the motion set forth last month in the legislature toward repealing the measure.

Politico: Dadt  

Though Congress has not yet passed a bill providing for conditional repeal of the Don't Ask Don't Tell policy, government lawyers contend the prospect of such a measure's passage should be sufficient for the courts to stay out of the issue.

"Defendants urge this Court ... to stay all further proceedings in this case because the political branches have taken concrete steps to facilitate repeal of the DADT statute," the Justice Department wrote in a brief filed in a suit brought in California by the Log Cabin Republicans.

Amendments to repeal the policy contingent on a report from the Pentagon that such a repeal could be implemented without significant adverse impact on the force passed the floor of the House and the Senate Armed Services Committee on May 27. (While the underlying defense bill also passed the House, the full Senate has not voted on either the amendment or its version of the underlying bill.)

"In light of these developments, principles of constitutional avoidance and respect for the co-equal branches of government militate in favor of a stay of proceedings pending completion of the process already undertaken by the political branches. Indeed, this is particularly true where, as here, a plaintiff brings a facial constitutional challenge. Accordingly, the Court should await the outcome of the process in which the political branches are now engaged before deciding the constitutional question presented," the Justice Department lawyers wrote.

The brief notes that the legislative moves were "consistent with the strong policy views of the administration" a phrase that may reflect the fact that the timing and mechanics of the legislation have not been heartily endorsed by the Pentagon and seem to have been only reluctantly embraced by the White House.

Some believe the White House is misleading the court on the actual situation regarding DADT.

Writes Americablog: "The President's Justice Department had the temerity to tell the court that it shouldn't rule on the constitutionality of DADT because Congress was working on repealing DADT as we speak. Of course, as I explained last week, Congress is doing no such thing. (And even if it were, the law hasn't passed yet, so it's moot.) What Congress is debating is legislation that would permit the repeal of DADT at some unspecified future date should the Secretary of Defense, the Chairman of the Joint Chiefs, and the President all agree that it should happen. There is no requirement that it ever happen, nor is there a requirement that the law be replaced with anything better. The Defense Department could still rewrite the regulations even worse than they are now."

Meanwhile, the Pentagon yesterday reiterated that investigations and discharges of gay and lesbian service members will continue.

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Comments

  1. My, my, my, what a flipping mess the White House has made with all their half-steps and half-truths. I can only imagine that the repeal of DOMA will be even more of a ridiculous disaster (provided Obama grows a pair and decides to actually make good on his promise for a full repeal). If the mad waltz over DADT is any indication, I wouldn’t hold my breath on the White House spearheading anything on DOMA.

    Posted by: ichabod | Jun 10, 2010 1:43:09 PM


  2. So what exactly is wrong with the Judge ruling on this particular case? If he found that it was unconstitutional, wouldn't that send it up to the court of appeals and ultimately, prevent those on the fence from having to make the "hard" choice to support the legislation? While I'm at it, is this judge beholden to the DOJ or can he just take their request under advisement and move forward anyway? My curious mind wants to know.

    Posted by: Keith | Jun 10, 2010 2:03:35 PM


  3. @ Keith:

    Though the ODOJ, in a way that would make George Bush and Karl Rove smile, is mindbogglingly virtually saying that federal courts should have NO jurisdiction to determine the constitutionality of acts of Congress, the judge does not have to listen to them, any more than she has in their previous over-half-dozen attempts to kill this lawsuit.

    Note, this brief was topped by the name of Tony West, Obama's hand-picked Assistant Attorney General, as has been all the earlier briefs defending DADT and DOMA.

    If there still exists ANYONE on the planet who can imagine that his actions are being done without the full knowledge and permission of Obama, I have a few sections of the Brooklyn Bridge for sale. PayPal only.

    For those unaware, Lambda Legal is suing Obama Inc. itself and the GAY head of it Office of Personnel Management because they have refused to honor MULTIPLE orders by a federal judge to allow a lesbian federal court employee to include her partner in her medical insurance EVEN THOUGH it would not cost the government another cent AND the judge ruled that they could allow it WITHOUT violating DOMA!

    All of this Brought to You by the Same People We Are Told by Gay Inc. to Shut Up About, Keep Sending Money to, Vote for, and Trust that the Amendment Said People Demanded Be Gutted of Any Guarantee of an End to Discharges Will Actually End Discharges After December.

    Posted by: Michael @ LeonardMatlovich.com | Jun 10, 2010 2:29:28 PM


  4. Seems like its up to the judge to proceed. It seems there are some legal precedents for not having a ruling by a judge potentially contradict pending legislation, because then all the courts time and money would be used inefficiently, as the court would probably have to revisit the case based on the new legislation, and since its pending the court knows how likely that is to happen.
    Legal tactic by Dept. of Justice (not friendly to gay community--remember the one on prop 8).


    Isn't there the counterargument that repeal of DADT is pressing and urgent and Congress has effectively tabled it? Also, couldn't any ruling by the judge, including a decision that he wants to wait and defer to congress be appealed to the next court level and so on till you are pounding on the Supreme Court door.

    This may be a good Log Cabin Republican tactic to keep DADT repeal in the public eye. But I don't think Log Cabin Republicans could be that clever. (No offense) Maybe their lawyers are that clever.

    Posted by: Interested Bystander | Jun 10, 2010 2:32:15 PM


  5. We don't want a judge to rule on this case. Any constitutional lawyer will tell you that the United State Military is given great deference to create policy as it wishes without interference from the Court. The issue here is one of equal protection. However, gays and lesbians are only subject to rational basis review, thus, a law on need to be rationally related to the objectives (unit cohesion, morale, etc.). The government would not have to show that those objectives actually are affected by accepting gays, it's actually up to those fighting DADT to prove that they are not rationally related, which is a standard courts almost always find satisfied. If this court were to rule that DADT is constitutional (as every lower court has done that has addressed the issue), this is only going to fire up conservatives to say to Congress, "look, the Constitution says we have this choice (to keep DADT), let's keep it."

    As far as substantive due process goes under Lawrence v. Texas, no court has yet accepted the argument that the private intimacy right that lesbians and gays have applies to DADT. In fact, lower courts that have rejected it by referring to language in the Lawrence decision that explicitly says that Lawrence was not addressing the issue of military policy. Just some food for thought. We should be careful what we wish for.

    Posted by: Anthony Catalino | Jun 10, 2010 2:55:20 PM


  6. The 9th circuit has already ruled DADT unconstitutional, a fact that is often overlooked. Further review was rejected by the supreme court, so the 9th circuit ruling currently aplies to troops that enlisted in 9th circuit jurisdiction. Basically, their finding requires that the military must prove that a troop's sexual orientation is ACTUALLY damaging to a unit's readiness and cohesion before that soldier is discharged. The military can't just assume it's an problem and discharge someone only because they are gay.

    Posted by: Paul | Jun 10, 2010 3:13:39 PM


  7. With respect, Paul, you're largely right re "Witt v. USAF" but wrong in one point in that the Supreme Court has NOT acted upon it because the ODOJ did not appeal to them, but said they would continue to defend against it after the 9th Circuit sent the case back to the District court, with trial scheduled this September.

    SECDEF Gates acknowledged during the Feb. 2nd Senate Armed Services Committee hearing that discharges in the HUGE 9th circuit [California alone has over 200,000 service members] that cannot show harm by the specific gay service members SHOULD have been stopped over a year and a half ago when "Witt" was sent back to the lower level.

    He promised that "new rules and procedures in light of the appeals court decision in Witt versus the Department of the Air Force for the areas of the country covered by the appellate court" would be announced 45 days later, but nothing was announced other than that they're still considering them. What a prince!

    The recommendation to discharge LT COL Victor Fehrenbach would have been one of those likely prevented as he is stationed within the 9th Circuit in Idaho.

    @ Anthony: You're also wrong about court opinions in relation to "Lawrence."

    While not a DADT case, but one involving the UCMJ ban on "sodomy," in "United States v. Marcum," the court ruled that Lawrence COULD apply to the military.

    Further, last October, the Commission on Military Justice, created to recommend updates to the UCMJ, recommended that Article 125 banning sodomy be repealed in light of "Lawrence," leading DADT expert Nathaniel Frank to write that such recognition was a further argument for ending the ban on open service.

    Posted by: Michael @ LeonardMatlovich.com | Jun 10, 2010 3:40:56 PM


  8. The judiciary does not stop its review of the Constitutionality of a law unless the law is actually repealed, making the case moot. The motion for a stay in this case is very likely to fail.

    To Anthony's point (?) about not having a judge to rule on this case, that's who rules on issues of law, a judge. Judges have often been at the forefront of advancing civil rights. And as for what "any constitutional lawyer will tell you" I practice constitutional law, in DC, and I can promise you that the military gets a hell of a lot more deference from Congress than from the "appointed for life" judiciary.

    Posted by: JusticeontheRocks | Jun 10, 2010 3:50:31 PM


  9. So where's that "fierce advocate" for gay rights you elected?

    Posted by: Sean R | Jun 10, 2010 5:49:19 PM


  10. isn't it about time for the president to take a leadership role in his government the doj and dod seem to be doing everything counter to what he promised. or is it just possible the man lied to get elected horrors a politician lying who would ever believe such a thing. this has dragged on long enough. do something. our government has perfected the stall tactic. it is a good thing the founding fathers set up a stable government or we wwould be a banana republic with the people running the country today.

    Posted by: walter | Jun 10, 2010 7:11:10 PM


  11. The Obama administration has acted in a disgraceful way towards the gay community. Folks, there is no guarantee that DADT will be repealed. This DADT review will be stacked against us with the views of homophobes. It will be spun against us by the military brass, make no mistake.

    Obama and his Democrat cronies simply wanted to shut us up. That's why they quickly had a House Vote but no senate vote on DADT repeal. It was a half-measure designed to make us feel 'wanted'.

    Don't fall for this tactic. I'm going to vote against Barbara Boxer at the upcoming Congressional elections.

    Posted by: smith | Jun 10, 2010 7:40:00 PM


  12. @ Paul - Do you know the name of the 9th circuit case that found DADT unconstitutional?

    @ Justiceontherocks - Is the "on the rocks" in your name a reference to alcohol?

    Best regards,

    Posted by: Interested Bystander | Jun 10, 2010 11:01:10 PM


  13. Unfortunately most civilians will never understand how the military operates, especially in combat/close quarters

    Posted by: Unfortunate | Jul 10, 2010 1:19:35 AM


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