February 26, 2011 | by Chris Johnson
Obama still defending ‘Don’t Ask’ in court

President Obama (Blade photo by Michael Key)

The Obama administration is continuing to defend “Don’t Ask, Don’t Tell” in court and on Friday filed a brief calling for suspension of litigation until the process for legislative repeal of the statute is complete.

In the case of Log Cabin v. United States, the U.S. Justice Department asked the U.S. Ninth Circuit Court of Appeals to hold off on proceedings until the president and Pentagon leaders complete the certification process for repealing “Don’t Ask, Don’t Tell.”

“The government believes the pendency of this repeal process warrants withholding further proceedings and decision in this matter until the process is complete,” the brief states.

In December, President Obama signed legislation allowing for repeal of “Don’t Ask, Don’t Tell.” But the military’s gay ban will remain in effect until the president, the defense secretary and the chairman of the Joint Chiefs of Staff certify the U.S. military is ready for an end to the military’s gay ban. Defense Secretary Robert Gates has said he won’t issue certification until training is implemented throughout the armed forces.

But should the appellate decide to continue with the case, the Justice Department argues that judges should reverse an earlier decision made by U.S. District Judge Virginia Phillips that “Don’t Ask, Don’t Tell” is unconstitutional. The administration contends the decision should be overturned because plaintiffs lack standing and the situation regarding the military’s gay ban has changed since the president signed legislation allowing for repeal.

“The district court exercised its equitable authority to enjoin enforcement of a federal statute, but that statute is now undergoing a repeal process subject to a more recent law duly enacted by Congress and signed by the president,” the brief states. “In view of the disruption that an abrupt and immediate end to ['Don't Ask, Don't Tell'] would cause … enacting this orderly process was well within Congress’s considerable constitutional authority in crafting legislation concerning military affairs.”

R. Clarke Cooper, executive director of National Log Cabin Republicans, said Obama has “abdicated his responsibility” in ending “Don’t Ask, Don’t Tell” by continuing to defend the statute in court.

“The Department of Justice’s continued defense of this case and its appellate tactics seek to obfuscate the issues and facts of this case,” Cooper said. “Log Cabin Republicans represents countless Active Duty, Reserve and National Guard servicemembers who are under the peril of a policy that seeks to advance discrimination over national security, which is why we went to court to argue this exact matter.”

Tracy Schmaler, a Justice Department spokesperson, said administration is defending “Don’t Ask, Don’t Tell” as it traditionally does when acts of Congress are challenged in court.

“Congress has now enacted an orderly process for repeal of the ‘Don’t Ask, Don’t Tell,’ policy and repeal is expected to become final in a matter of months,” she said.”In light of the vote to repeal this policy, we are working with the Department of Defense to take the appropriate steps in pending cases to conform with the law and the process established to repeal this policy.”

Dan Woods, attorney for White & Case LLP, who’s representing Log Cabin in the lawsuit, said the brief is “stunning” for what isn’t included and said administration attorneys are suggesting “Don’t Ask, Don’t Tell” is unconstitutional.

“The government’s brief does not address the due process or First Amendment issues on which Judge Phillips based her decision nor the standard of review applicable to our challenge to the constitutionality of ‘Don’t Ask, Don’t Tell,’” she said. “By not arguing merits of the constitutionality of ‘Don’t Ask, Don’t Tell,’ the government’s brief, by its silence on these issues, is effectively conceding that ‘Don’t Ask, Don’t Tell’ was and is unconstitutional.”

The recent announcement from the Justice Department that it would no longer defend the Defense of Marriage Act in court — based on the Obama administration’s new belief that laws related to sexual orientation deserve heightened scrutiny — raises questions about why the president continues to defend “Don’t Ask, Don’t Tell.”

Prior to the filing on Friday, White House Press Secretary Jay Carney said he expected the brief to reiterate that “the courts should not decide the case or the constitutional question, due to the pending repeal, which should be effective in a matter of months.”

“As I said, the repeal is proceeding smoothly and efficiently,” Carney said. “Our goal was to have it repealed. It has been repealed. And that process of the repeal is now proceeding efficiently and smoothly, which is a good thing.”

Asked whether Obama has communicated to the Justice Department whether he thinks “Don’t Ask, Don’t Tell” is unconstitutional, Carney replied, “Not that I know of.”

Download a copy of the Justice Department brief here.

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

2 Comments
  • It is obvious to me the reason the Administration doesn’t want the courts to declare DADT unconstitutional is the fact that all service members who have been removed from the military since DADT was implemented could argue they were victims of illegal discrimination at the hands of the US Govt and it Armed Services. That could have ripple effects for decades to come. Not to mention possible lawsuits for damages. I hope the court throws the book at DADT! I hope all the “Victims” of DADT have their day in court and win a hefty judgment!

  • Ongoing litigation over DADT would probably affect the repeal implementation process negatively. The government would have to hold opposing positions at once. Unfortunately, this is the way policy change works in our now-bureaucratic system.

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