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Obama DOJ Appeals 9th Circuit Halt to DADT

Obama DOJ Appeals 9th Circuit Halt to DADT

 

The Obama administration has filed for a stay to the 9th Circuit Court of Appeals decision to uphold a worldwide injunction halting enforcement of “Don’t Ask, Don’t Tell.”

The “emergency” request for a stay, filed late Thursday, asks that in the case Log Cabin Republicans v. United States the 9th Circuit once again suspend the “Don’t Ask, Don’t Tell” (DADT)  injunction so the open service ban can remain in effect until the legislative repeal is certified. This, the motion asks, should be decided by close of business Friday. The request also confirms the Obama administration intends to defend the law until it is repealed.

Interestingly, the brief argues that the 9th Circuit has misunderstood the government’s stance on DADT, and that the court based its reasoning to enforce the injunction, at least in part, on the idea that because the executive branch had moved to repeal the law the administration thought it was suspect. This, the DOJ argues, is not the case. While repeal is only a matter of weeks away, the brief argues the administration believes DADT is constitutionally sound, that there will be real harm in halting DADT enforcement before service chiefs have certified the repeal, and more than that, that it would allow one judge, Judge Virginia Phillips, to have overruled Congress’ decision that the repeal should be carefully coordinated. This, the brief summarizes, comes down to a matter of separation of powers.

As one might expect, the Log Cabin Republicans wasted no time to attack the request for an emergency stay, saying in a statement:

“This latest maneuver by the President continues a pattern of doublespeak that all Americans should find troubling. All this does is further confuse the situation for our men and women in uniform,” said R. Clarke Cooper, Log Cabin Republicans Executive Director, combat veteran and captain in the United States Army Reserve. “Let me be clear – the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers’ constitutional rights. ‘Don’t Ask, Don’t Tell’ is an offense to American values that should have been gone long ago. It is shameful that a president who has taken credit for opposing the policy is taking extreme measures to keep it on life support.”

“The motion that the government filed today has no other purpose than to request – on an emergency basis – that the military be permitted to investigate and discharge servicemembers, and block new enlistments, based solely on those individuals’ sexuality,” said Dan Woods, partner of White & Case and lead attorney in Log Cabin Republicans v. United States. “The government’s request is inexplicable on any other basis.”

While DADT is undeniably offensive, this isn’t really double-speak, nor is it an “extreme measure.” The administration can state DADT is unfair while still believing it to be constitutional in much the same way that Obama can defend the law as it stands (which would be normal procedure for the presiding administration) while going through the process of repealing it.

Click here for links to the relevant court documents.

Related Reading:
Court Asks: Will Obama Drop DADT Defense?
Lesbian’s Exclusion from Jury Duty Raises Legal Scrutiny Question
Pentagon Issues Moratorium on DADT Discharges

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Photo used under the Creative Commons Attribution License, with thanks to the U.S. Army Photostream.

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28 comments

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8:37AM PDT on Sep 2, 2011

ty

7:41AM PDT on Jul 17, 2011

",,,perhaps Obama is attempting to make sure it goes all the way through, so that nobody can call "not fair" or "not legal" about the process. He might be trying to make sure when it gets gone, it stays gone."

Lilithe - THANK YOU for a perfectly stated description of the issues. The US is not LGBT, older servicemen in particular are unsympathetic. Obama got a repeal law through, crafted so that there would be the minimum complaints. And we want to risk the whole thing to get it 3 months faster (or whatever)??? We want it to last.

I get irritated by complaints against Obama. He acted quickly to get a repeal law through congress and people complain he's not committed - gimme a break.

6:17AM PDT on Jul 17, 2011

Get over the homophobia and take action now.

6:02AM PDT on Jul 17, 2011

Thanks for the article.

3:09AM PDT on Jul 17, 2011

I often have a hard time wrapping my head around law-speak, but I wonder...

Is the stay to make sure it goes through the whole stupid legal process, so that once it has been fully repealed, no s-t for brians can use some dummy excuse to bring it back up again? A "due process" sort of thing? It really should just go, but perhaps Obama is attempting to make sure it goes all the way through, so that nobody can call "not fair" or "not legal" about the process. He might be trying to make sure when it gets gone, it stays gone.

Don't know, just a guess.

7:22PM PDT on Jul 16, 2011

Me too, Marilyn. But Obama isn't doing it, Justice is a bureaucracy, and more autonomous than presidents and Justice Secretaries like.

6:52PM PDT on Jul 16, 2011

I have to admit I don't know what he is doing with this. If it goes to the Supreme Court I think it's all over, the right wing judges there scare the hell out of me.

5:16PM PDT on Jul 16, 2011

Please excuse me for my previous comment; I am horribly sleep deprived today, due in large part the 8 vertebral spinal fractures and unable to articulte my thought's today.
Still DADT needs to be repealed for a better USA and World. GLBT persons deserve the same rights as any other group - be it to serve in the Military or whatever.
Again, I apologize for my previous disconneted comment.

5:00PM PDT on Jul 16, 2011

The Obama administration does not have total control of the Department of Justice-- Justice is part of the judicial in that respect. For if a president has the power to block justice department actions, then the president would be immune from all charges, wouldn't he. Most of the Federal attorneys still in power were appointed by Bush.

4:20PM PDT on Jul 16, 2011

I don't know where to begin - thankfully most you have said what I would say. It's just a power thing to oppress and single out one group of people as "evill". Why do "they" have to opress anyone ? Because of thier own lack to deal with their own fear's over what probaly has nothing to do with them at all. Yet, they need to be able to blame someone. Why is that? Because they cannot deal with their own fear's.

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