Gov’t urges court not to issue worldwide injunction in DADT case

In a Sept. 23 filing, the U.S. Justice Department asked the federal
district court in Riverside, Calif., not to issue a worldwide injunction
against enforcement of the Don’t Ask, Don’t Tell gay ban.

U.S. District Judge Virginia Phillips struck down DADT on Sept. 9, ruling
that it violates the U.S. Constitution’s guarantees of free speech and due
process under the First and Fifth Amendments.

Plaintiff Log Cabin Republicans then asked Phillips to issue such an
injunction. The government filing included a host of arguments against the
idea.

“The United States is not a typical defendant, and a court must exercise
caution before entering an order that would limit the ability of the
government to enforce a law duly enacted by Congress, or defend its
constitutionality in other tribunals,” the federal government argued.

“(Log Cabin Republicans’) proposed injunction is untenable,” the
government said. “Because any injunction in this case must be limited to
plaintiff LCR and the claims it asserts on behalf of its members — and
cannot extend to non-parties — plaintiff’s requested world-wide
injunction of the statute fails as a threshold matter. A military-wide
injunction would, moreover, prohibit the consideration of similar
challenges in other courts and would freeze the development of important
questions of law in violation of the Supreme Court’s clear direction that,
in cases in which the United States is a defendant, the United States must
be allowed to continue to advance legal arguments even after they have
been rejected by a particular circuit.”

Furthermore, the government argued, “both the Executive and Legislative
branches are actively examining the DADT law and policy. A court should
not compel the Executive to implement an immediate cessation of the
seventeen year old policy without regard for any effect such an abrupt
change might have on the military’s operations, particularly at a time
when the military is engaged in combat operations and other demanding
military activities around the globe.”

Finally, “no injunction should be entered or made effective until the
government has had an opportunity to consider the terms of any injunction
and to move for a stay,” the Justice Department asserted.

LCR denounced the filing.

“We are not surprised by this but we are extremely disappointed with the
Obama administration,” the group said. “Many times on the campaign trail,
President Obama said he would support the repeal of Don’t Ask, Don’t Tell.
Now that it’s time to step up to the plate, he isn’t even in the
ballpark.”

The group’s lawyers sounded incredulous.

“The Justice Department’s objections fail to recognize the implications of
the government’s defeat at the trial,” said White & Case partner Dan
Woods. “It is as if the South announced that it won the Civil War. The
objections also fail to mention that the court has previously denied the
government’s requests for a stay on three prior occasions and nothing has
changed to suggest that a stay is now appropriate; if anything, the Senate
vote this week (declining to consider repeal of DADT) shows that the court
was correct in denying the prior requests for a stay. What is most
troubling is that the government’s request for a stay ignores the harm
that Don’t Ask, Don’t Tell causes to current and potential members of our
Armed Forces. That is the saddest, most disappointing, and, in light of
the president’s position, most hypocritical part of the objections.”

Servicemembers United Executive Director Alexander Nicholson expressed
outrage.

“President Obama is certainly taking his so called ‘duty to defend’ this
anti-gay military policy as far as he possibly can,” he said. “Two blows
from the White House in one week is a bit much. First, the president
cannot find the time to make any phone calls to senators to help us avoid
a crushing loss on Tuesday, although he does manage to find the time to
call the WNBA national champions to congratulate them on their victory.
Then, the president once again goes much farther than he has to in defense
of the discriminatory and unconstitutional Don’t Ask, Don’t Tell law. When
is the White House finally going to get serious about repealing Don’t Ask,
Don’t Tell? We needed help this week, and our commander-in-chief and
‘fierce advocate’ was AWOL.”

But Obama Press Secretary Robert Gibbs defended the filing.

He said: “Today, the Department of Justice made a filing in a legal
challenge to the Don’t Ask, Don’t tell (DADT) policy, as it traditionally
does when acts of Congress are challenged. This filing in no way
diminishes the president’s firm commitment to achieve a legislative repeal
of DADT — indeed, it clearly shows why Congress must act to end this
misguided policy. The president was disappointed earlier this week when a
majority of the Senate was willing to proceed with National Defense
Authorization Act (which includes repeal of DADT), but political posturing
created a 60-vote threshold. The president spoke out against DADT in his
first State of the Union Address, and the secretary of defense and the
chairman of the Joint Chiefs have both testified in support of repeal. And
the Department of Defense continues to work on a plan on how to implement
repeal. The president, along with his administration, will continue to
work with the Senate leadership to achieve a legislative repeal of DADT as
outlined in the NDAA this fall.”

By Rex Wockner