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.


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.