Court Asks: Will Obama Drop DADT Defense?


The 9th Circuit Court of Appeals in a an order issued Monday gave the Department of Justice 10 days to decide whether it will appeal the decision to immediately halt the enforcement of the military’s open service ban “Don’t Ask, Don’t Tell” (DADT).

While noting that it “appears” the department has dropped defending the constitutionality of DADT, the appelate court has now directed the Obama administration to declare its intent so that, if it has decided to no longer defend the constitutionality of the law, Congress may step in if it so desires and take up the defense.

From the Washington Blade:

In an order dated July 11, the U.S. Ninth Circuit Court of Appeals states that the Justice Department must announce if it will continue to defend “Don’t Ask, Don’t Tell” or, as was the case with DOMA, allow Congress to intervene to take up defense of the military’s gay ban.

“The Government is hereby ordered to advise the court whether it intends to submit a report to Congress outlining its decision to refrain from defending ['Don't Ask, Don't Tell'],” the order states. ”The Government is further ordered, if such a report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding.”

While it is standard legal practice for the presiding administration to defend existing statutes there is discretion that, while an administration must generally enforce laws until they are repealed or struck down, the administration can decline to defend laws it believes to be unconstitutional.

Such was the case in February of this year when the Obama administration announced that it would no longer defend Section 3 of the Defense of Marriage Act because the administration, forced to carry out its own review where no legal standard had been established, had concluded it unconstitutional.

Interestingly, the Court also asks if, with repeal legislation apparently just weeks away, this case should be dismissed as moot.

From Metro Weekly:

“After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654,” the order begins.

The brief order goes on to note that the government only defended the constitutionality of the Don’t Ask, Don’t Tell Repeal Act — and not the DADT law at issue in the case — and states, “No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed.”


Additionally, the court asks the parties to explain “why this case should not be dismissed as moot,” either now or upon certification of the Don’t Ask, Don’t Tell Repeal Act.

The Log Cabin Republicans who brought this suit have already said that they would be happy to again argue that it is necessary to keep the injunction against DADT enforcement, noting that Congress has now passed various amendments to impede DADT repeal (they gloss over the fact that it’s a purely House Republican move). This, they argue, makes the case vitally important to the constitutional rights of servicemembers.

How the Obama administration chooses to act next will be of key interest not just for repeal advocates, but also for the opposition who will be keen to sniff out signs of indecision or perceived weakness.

Related Reading:

GOP Offers “Plan B” on DOMA and Other Anti-Gay Amendments

Barney Frank Calls on Obama to Veto A Defense Bill with Anti-Gay Amendments

Half of Military Now Trained for DADT Repeal

U.S. Army Launches DADT Website


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


Marie W.
Marie W6 years ago

DOD grow up and face than its not 1811.

Marilyn L.
Marilyn L6 years ago

AJ A says, "The vast majority of young Americans are grounded in a reality far better informed by empirical evidence than those over, say, fifty - and eschew, in particular, much of the hateful and repressive dogma embraced by their elders, especially where human sexuality is concerned."

Well AJ A as a 68 year old lesbian, who is a Centrist leaning liberal I resent your comment. Who do you think gave this country the Civil Rights Act, Social Security, Medicare and other social programs? What group of LGBT people do you think started the fight for LGBT rights and put up with hateful discrimination way before laws were past in our favor. As a lesbian who was discharge from the military for being a lesbian and who march for Civil Rights in the 1960's, and walk tons of miles for women's rights and gay rights, way before it was popular to do so, I take real exception to your comment. Not all of us are,"over, say, fifty" bigoted, hateful fools. There are many of us who fought those folks once and are doing our damnest to do so again.

You statement indicates to me that you do not know your history, at least the history of civil rights in this country. And if the young are far better informed why don't many get their lazy butts out and vote rather than sitting around and watching reality TV. Perhaps many of the young should get their priorities straight.

Carmen n.
Carmen n6 years ago

Well said, AJ A! A virtual green star for you.

Past Member 6 years ago

The issue of homosexuality in American society, like so many others, has little (if anything) to do with evidence-based reality, and virtually everything to do with the bigotry, hatred and fear that results from ignorance - and religious dogma.

It is not possible, by definition, to have rational discourse with irrational people, which is what the "Right" is largely comprised of, basing their world view (such that it is) on oft-edited texts of dubious translation, written by people who believed, amongst other things, that the Earth was flat.

Well, the Earth is manifestly NOT flat (nor, for that matter, is it six-thousand years old), and homosexuality is every bit as much a part of nature (and the natural world) as is the psychopathology and self-imposed ignorance of the perverts who assert that it is not.

The vast majority of young Americans are grounded in a reality far better informed by empirical evidence than those over, say, fifty - and eschew, in particular, much of the hateful and repressive dogma embraced by their elders, especially where human sexuality is concerned. As they reach their majorities and begin to vote, the iron fist of the Theo-Fascist "Right" will continue to lose its grip. They know this; they also know that, with the exception of forestalling the inevitable by attempting to disenfranchise young voters (as they have been), there is nothing they can do about it, and it drives them crazy - a very short trip.

Ronald Whitcomb
Ronald Whitcomb6 years ago

Maybe the courts can decide this and this issue will no longer be near the top of the gop's hitlist. I am a draftee of the Vietnam war and believe me, I could have showed up for my induction in full drag and still been sent to Vietnam. They didn't care back then as I was another body and they needed more bodies. How hypocritical is that? My wish is that the conservatives keep their agenda in their homes and private lives. I don't want to live here under their rules.

K s Goh
KS Goh6 years ago

Thanks for the article.

Maurice Simoens
Maurice Simoens6 years ago

to be gay is a human right,since years it was not accepteble on street,but now it's good that also soldiers may outing,and it's not so worse of childabuse by church since years,covert by republicains,obama has done the right thing

Rachel Beckford
Rachel Beckford6 years ago

My goodness, the military has already instituted training for its members and the Republicans still want to argue about the policy. Just another reason I am so glad I no longer reside full-time in the United States.

Randall S.
Randy Stein6 years ago

The Pentagon has FINALLY accepted the truth about gays in the military, but Republicans still want to stubbornly stand in the way. During the last twenty years the Pentagon's OWN research has shown that NOT allowing gays & lesbians in the military is hurtful to the military and weakens our military. But the Pentagon kept ignoring their own research because they didn't like the results. Now that they have finally come around it's time the Republcans, for the good of our military and our country, stop trying to get in the way of the Pentagon's recommendations to end DADT. The same old crud was also brought up as excuses not to integrate black & white soldiers, and to allow women into the military, and those predictions also proved false and baseless.