September 24, 2010 at 12:02 pm EST | by Chris Johnson
Justice Dept. objects to ‘Don’t Ask’ injunction

The U.S. Justice Department on Thursday issued an objection to a proposed judgment seeking to bar enforcement of “Don’t Ask, Don’t Tell” on the basis that a military-wide injunction of the statute is “untenable.”

The Obama administration issued the 19-page objection in the wake of the California federal court ruling in the case of Log Cabin Republicans v. United States that found “Don’t Ask, Don’t Tell” is unconstitutional.

Plaintiffs in the case had sought an injunction against the enforcement of “Don’t Ask, Don’t Tell” as a result of their victory, but the Justice Department this week urged U.S. District Court Judge Virginia Phillips not to issue that order.

Instead, the Justice Department asks the court to limit the injunction to members of the Log Cabin Republicans who serve in the armed forces.

The next step in the process is for Phillips to determine what judgment she will enter in the case. The Obama administration will then have 60 days to make an appeal to the U.S. Ninth Circuit Court of Appeals.

In a statement, White House Press Secretary Robert Gibbs maintained President Obama is committed to legislatively repealing “Don’t Ask, Don’t Tell” even though his administration filed the objection.

“This filing in no way diminishes the president’s firm commitment to achieve a legislative repeal of [‘Don’t Ask, Don’t Tell’] — indeed, it clearly shows why Congress must act to end this misguided policy,” Gibbs said,

But advocates working for “Don’t Ask, Don’t Tell” repeal are expressing indignation over the Obama administration’s objection to the injunction.

Executive director of Servicemembers United, Alex Nicholson (Blade photo by Michael Key)

Alex Nicholson, executive director of Servicemembers United and sole named plaintiff in the lawsuit, said Obama is “certainly taking his so-called ‘duty to defend’ this anti-gay military as far as he possibly can.”

“Two blows from the White House in one week is a bit much,” Nicholson said. “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.”

R. Clarke Cooper, executive director of the National Log Cabin Republicans, also chastised Obama for the Justice Department’s objection.

“We are not surprised by this but we are extremely disappointed with the Obama administration,” Cooper 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 Justice Department offers various reasons for why Log Cabin’s proposed judgment is untenable. One justification that the administration offers is that a military-wide injunction against “Don’t Ask, Don’t Tell” would interfere with higher court rulings and foreclose the possibility of litigation in other courts.

“If this court were to enjoin all discharges under [‘Don’t Ask, Don’t Tell’] throughout the world, it would not only effectively overrule the decisions of numerous other circuits that have upheld [‘Don’t Ask, Don’t Tell’], but also preclude consideration of similar challenges by courts in other circuits that have not addressed the issue (not to mention other district judges in the Central District of California) prior to any decision by the Ninth Circuit,” the administration states.

The Justice Department argues that Log Cabin’s proposed judgment would be at odds with the Ninth Circuit Court of Appeals ruling in Witt v. Air Force, which allows the opportunity for the U.S. military to prove a gay service member undermines unit cohesion before discharging them.

Additionally, the Justice Department says an injunction would interfere with legislative efforts to repeal “Don’t Ask, Don’t Tell” as well as the Pentagon working group’s efforts to develop a plan to implement repeal.

“Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the [‘Don’t Ask, Don’t Tell] law and policy,” the administration states. “An injunction with immediate effect will put [Defense Department] in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.”

Dan Woods, an attorney at White & Case representing plaintiffs in the case, said the objections from the Justice Department suggest that it doesn’t realize it’s the losing party in the lawsuit.

“The Justice Department’s objections fail to recognize the implications of the government’s defeat at the trial,” Woods said. “It is as if the South announced that it won the Civil War.”

Woods notes that the court previously dismissed the administration’s requests for a stay in the case on three prior occasions and “nothing has changed to suggest that a stay is now appropriate.”

“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,” Woods said. “That is the saddest, most disappointing, and, in light of the president’s position, most hypocritical part of the objections.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • wayne

    lost in the Senate failure to repeal and lost in the administration’s argument is the FACT that every day without the injunction is another day in which gays and lesbians must sit in the back of the bus.

  • Peter Rosenstein

    Once again the Justice Department appears to be at odds with the White House. The White House could clearly issue a stop order on anyone being dismissed. They can’t continue to have it both ways, saying they are supportive of repealing DADT and then doiing everything they can to either keep the courts from doing it or taking the time to act themselves. I ask again what the President did to help push the bill last week or to get Senator Reid to drop other extraneous amendments so this could pass. I hope that the President realizes that the frustration around this will hurt Democrats in November and in the long run if this doesn’t get passed will hurt his reelection bid in 2012.

  • Why hasn’t President Obama issued an executive order suspending enforcement of “Don’t ask, Don’t Tell” immediately after the California federal court decision? As commander-in-chief, the president has the full authority under Article II of the Constitution to do so.

    I recognize that obama staked much of his 2008 campaign on a promise to “change the way things are done in Washington.” Well, after nearly two years, it’s abundantly clear that the Republicans don’t want that kind of change and are fighting Obama tooth and nail to preserve the status quo — and not just on DADT.

    It’s time for Obama to abandon his “post-partisan” stance and face the reality that Washington will never change its spots without STRONG LEADERSHIP. The president must fight tooth and nail to get his agenda passed and to prevent the Republicans from undermining him.

    That means putting congressional Democrats on notice that they must get tough with Republicans and FIGHT. That means Senate Democrats must stop acting like mealy-mouthed milqetoasts and TAKE CHARGE, nuking the Republicans’ abuse of the filibuster once and for all.

    And above all, that means EXPOSING the Republicans for what they really are: OBSTRUCTIONIST do-nothings and know-nothings who are interested only in taking back power for themselves and their right-wing allies.

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