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DOJ Asks the Supreme Court to Let it Keep Enforcing DADT

MetroWeekly reports that the government has responded to the Log Cabin Republican request to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's injunction barring enforcement of 'Don't Ask, Don't Tell':

Dadt "In a filing at the U.S. Supreme Court this afternoon, the U.S. government, represented by acting Solicitor General Neal Katyal, asked the court to leave in place the stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy. The government's argument would keep DADT in effect while the Log Cabin Republicans v. United States case is on appeal before the U.S. Court of Appeals for the Ninth Circuit."

The response was requested from Justice Kennedy when the LCR application was filed.

Argues Acting U.S. Solicitor General Neal Katyal in the briefing: "It was entirely appropriate for the court of appeals to defer to the considered judgment of senior military leaders that any change in policy must be done in an orderly and careful manner in order to be successful."

Woods Wrote Dan Woods, lead attorney for the Log Cabin Republicans, in a statement:

"We have reviewed the government's opposition to Log Cabin's application to vacate the stay of Judge Phillips's injunction by the Ninth Circuit. In our view, the government's lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court.  First, we argued that the premise of the government's position--that it needs time to conduct an orderly process of repealing DADT--is entirely speculative because Congress has not and very well may never repeal DADT; the government's filing today does not address that issue.  Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government's filing today does not respond to that point either.  At this point, all we can do is to look forward to a favorable ruling from the Supreme Court."

Added R. Clarke Cooper, Executive Director of the Log Cabin Republicans:

"It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy.  At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend 'Don't Ask, Don't Tell' in court.  This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President's call.  The White House has been missing in action on Capitol Hill, undermining efforts to repeal 'Don't Ask, Don't Tell' in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform."

View the brief, AFTER THE JUMP...

US-response-10A465-11-10-10

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Comments

  1. I don't think anything this administration does from here on could make me more sad at the lost opportunity and the wasted hopes of the last two years.
    They had the tide at the flood and now everything lapses back into the stultifying ignorance and tokenist banality of Tea Bag Republicanism.
    Yeah, try to persuade the military, try to persuade the moderates across the aisle, let's have a survey.....God forbid that you make a bold move and lead opinion and campaign for equality without apology......what a shocking concept that would be.
    I'm just so disappointed.......
    "So forgive me if you read this......"

    Posted by: JackFknTwist | Nov 10, 2010 6:01:35 PM


  2. Going way back to when this suit started, why didn't the LCR file the suit in a District that Kagan, Sotomayor, Ginsberg, or Bryer oversee?

    Posted by: Rodney Wollam | Nov 10, 2010 6:08:02 PM


  3. Congratulations, Andy. Your new popup ads are devying my anti-popup software. Damnit.

    Posted by: kansastock | Nov 10, 2010 6:13:24 PM


  4. If the democrats think they lost badly this past November, wait till 2012. The one thing you can say about the racist, bigoted republican party is that they are not political wimps.

    All this BS about taking a survey! No such survey was conducted when it came to desegregating the military. The survey is not to gauge the impact repealing DADT will have on service members, but to act as a smoke screen for civilians who don't fully understand that he military, unlike the rest of American society, is NOT a democracy. The training they receive is meant to reprogram the independent, democratic spirit they learned growing up, to take orders, and never count the cost of taking those orders. Failure to disobey the smallest order is met with swift, and depending on the offense, deadly correction. correction.

    There have been more suicides of service members in this war than any war in American history. I think this is a direct result, not of the gays serving in the military, but the demoralization of military personnel who are either sensing or fully realizing that the Iraqi invasion was a sham, nothing to do with 911, and everything to do with oil.

    And even though military leaders know that many of the troops are demoralized, that they know the war is a farce, a political grandstand, they would never dream of taking a survey on the matter, or act on what they know of the emotional state of their subordinates. They are trained to surrender their conscious, their God-given right to reason things out, to kill without thought, to die, like soldiers made of wood, for a war mongering nation. No survey in sight. Political and military leaders leaders are quite willing to spend the blood of the middle class . . . a lot of blood. And while there is a limit to how much blood they will expend for their lies, that number is high, much much higher than the paltry number that have died in the past twelve years.

    Obama has broken some very serious promises, not just to gays, but the majority of Americans who expected him to end the war, not escalate it, to close Guantanamo, not adopt most of Bush's policies.

    Whatever I must suffer as a gay American under a republican congress, or even administration, I would do that before voting for Obama. He is counting on my and other gay Americans . . . but I have been through a lot in this pathetic country, and while I would never dream of voting for a republican, I am strong enough to withhold my vote, just to let Obama and other democrats know that they cannot capitalize on this Gay Man's desire to be fully invested with my civil rights.

    Posted by: Ricco | Nov 10, 2010 6:39:53 PM


  5. Actually, Ricco, they did do a survey about desegregation and the troops strongly opposed it. But they did it anyway, because as you way, troops are trained to follow orders.

    Posted by: Paul R | Nov 10, 2010 7:00:52 PM


  6. @rodney: good question. the case was brought way back in 2004/2005, so justices kagan and sotomayor were not on the bench. but even still, your question stands because stevens and souter were on the moderate side of the bench. log cabins brought the suit in the central district of ca because it is based in los angeles and, of all the circuits, perhaps they thought the 9th circuit would, in any event, be the most friendly.

    Posted by: Ari | Nov 10, 2010 7:19:15 PM


  7. @Ricco: "Whatever I must suffer as a gay American under a republican congress, or even administration, I would do that before voting for Obama."

    Don't be such a drama queen. The Republicans can make life way more miserable for us than Obama has/is.

    Posted by: LightningBoalt | Nov 10, 2010 7:44:20 PM


  8. Actually the military did not do a survey regarding racial integration prior to Truman's executive order of 1948. A Gallop poll that was conducted showed the majority of citizens opposed integration. There was a research survey conducted in 1951 (after the Truman order) about military attitudes regarding integration which indicated less opposition.
    Some branches of the military such as the Navy had began integration on ships prior to Truman's executive order and even after the order the Army was slow to follow the order.
    Just so we all know and understand the ideal of a survey given to active duty members and their families is new and an indication of the depths some will take to deny fellow Americans who they view as different their Constitutional rights.
    What many that post here don't understand with the removal of this ban is that it will in essence become our governments acknowledgement of our rights. I believe our first small step to securing full rights and citizenship.

    Posted by: major707 | Nov 10, 2010 8:00:55 PM


  9. Legal question for Ari:
    Couldn't DOJ negotiate a settlement with Log Cabin in this case, by which they agree with the court's ruling that the law is unconstitutional and the parties agree to a specific timeline and process for implementing the new policy? Once the court gives its consent and enters judgment, the law is struck down and the Pentagon gets its process. Win-win. I know it's unlikely, but if they really only care about an "orderly process" they could negotiate one without jeopardizing the elimination of DADT -- just work around the bigoted legislative branch and hammer out the details. Obama insisting that Congress is needed for a "durable" solution is ridiculous.

    Posted by: Jeff | Nov 10, 2010 8:10:37 PM


  10. Actually, I'm extremely curious as to what Justice Kennedy does... I think he'll refer the matter to the entire court. If they go by the letter of the law, we should win.

    Posted by: Mike | Nov 10, 2010 8:17:47 PM


  11. OF COURSE, Jeff, if President Gates REALLY wanted discharges to end but just in an "orderly" way, they could have accept the finding that it's unconstitutional but simply asked for more time. But not only did they not do that, they're saying the courts should, ipso facto, continue to simply let the military do whatever it wants for as long as it wants.

    Too few noticed at the time, but Gates told the Senate in February that whenever the ban was repealed, he would want AT LEAST another YEAR to "implement"...read: stop discharges. The man's a fraud with no intent of ending all discharges. He might try some DADT Lite, i.e., gay segregation, but this legal brief, the "study," postponing a vote until the dying days of this session of Congress...all just different moves in his multdimensional chess game.

    For the record, the ban, both pre and post DADT, has been declared unconstitutional before, but those rulings were overturned on appeal. Why? Because they bought the "General Asshat knows better" bull.

    Posted by: Michael @ LeonardMatlovich.com | Nov 10, 2010 8:22:14 PM


  12. Kudos to the LCR for the case, but their director is doing some serious political spin--and undermining their credibility--by suggesting that all the good Republican senators need from the Obama administration is a friendly call and they'll vote for that repeal! Surely they have their own ideas about right and wrong and could vote accordingly if they're in favor of repeal? Where have they been up to now? While the LCR is busy bashing the Obama administration (deservedly so), they should also be bashing the worse Republican obstructionism on all gay rights issues. But they always ignore the sins of their own party. Stick to the court cases, boys. No one believes the spin, and your lobbying success is sadly negligible.

    Posted by: Ernie | Nov 10, 2010 8:33:27 PM


  13. No matter how many times they use the tag line "orderly and careful" they are being anything but. Orderly and careful would be Private, you treat that person there with respect. Careful would be, if you have any quarrel with that you can take mess duty.

    Every country in the world that has inclusion did it within a matter of months, not years. they are only torturing their own by dragging out needlessly like this.

    Posted by: Chris | Nov 10, 2010 10:04:35 PM


  14. DOMA was passed by Congress by a vote of 85–14 in the Senate and a vote of 342–67 in the House of Representatives, and was signed into law by President Bill Clinton on September 21, 1996. There must be a large number of democrats voting for it.
    Actually both parties are playing political football. It is a myth that the democrats are necessarily pro-gay.

    Posted by: simon | Nov 10, 2010 10:23:18 PM


  15. "...This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President's call..."

    And then, I remembered, it was the god-damned Log Cabin Republicans.

    Posted by: JeffNYC | Nov 10, 2010 11:33:32 PM


  16. Seriously, there's no fierce advocate in the WH on this issue or much else. While there are some weirdo GOP would-be candidates who would be woeful as POTUS, isn't it time for Clinton 2012? Time to drop the pilot people, you've been had!

    Posted by: Sean R | Nov 11, 2010 3:01:50 AM


  17. Obama go to hell. HILLARY 2012.

    Posted by: Name: | Nov 11, 2010 7:09:50 AM


  18. The lawsuit was filed in California because the 9th Circuit Court of Appeals is generally the most liberal appeals court and would hopefully rule in favor dismantling DADT.

    My question? Why doesn't the WH release the f*cking study, NOW ! ! ! BO doesn't have to wait until December 1st. Get the study into the public domain or at least the Senators' hands. The generals have already (supposedly) seen it.

    Since Republicans always want to put things to a vote, Gay, Inc. should be hammering McCain on him and the Republicans not letting this come up for a vote.

    The WH missed an opportunity to negotiate terms of the court order at the District Court level. BO didn't care and thought he could ignore the judge, b/c everybody has to defer to the generals, don't you know. Isn't this is the USA, where the military is supposedly under the thumb of the civilians (and not the other way around)?

    Can't wait for the (further BS) spin of Gay, Inc. when this blows up.

    Posted by: TruthSeeker_Too | Nov 11, 2010 8:36:30 AM


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