June 17, 2010 at 4:29 pm EDT | by Chris Johnson
Obama administration seeks stay on ‘Don’t Ask’ case

President Barack Obama’s administration is asking a federal court to halt proceedings on a legal challenge to ‘Don’t Ask, Don’t Tell.’ (Photo by Pete Souza, courtesy of White House)

The Obama administration is asking a federal court to hold off on advancing a legal challenge to “Don’t Ask, Don’t Tell” until Congress completes legislative action on the issue this year.

In a reply brief issued June 9 in Log Cabin v. United States, the Justice Department argues the U.S. District Court of Central California should defer adjudicating the case in light of recent votes in the House and Senate on measures that would lead to the repeal of “Don’t Ask, Don’t Tell.”

The pending case, initially filed by Log Cabin Republicans in 2004, seeks to overturn “Don’t Ask, Don’t Tell” on the grounds that it violates the freedom of speech rights of gay, lesbian and bisexual service members.

The Justice Department brief that was made public last week comes after U.S. District Judge Virginia Phillips ruled late last month to deny the government’s call for summary judgment in the case based on plaintiffs’ lack of standing.

The deadline for the plaintiffs’ response to the brief is June 23.

In the brief, the Obama administration contends that “principles of constitutional avoidance and respect for the coequal branches of government” necessitate that the court should support a stay in proceedings until “completion of the process already undertaken by the political branches.”

“Accordingly, the court should await the outcome of the process in which the political branches are now engaged before deciding the constitutional question presented,” the brief says.

Late last month, the House and the Senate Armed Services Committee voted in favor of attaching “Don’t Ask, Don’t Tell” repeal language to the fiscal year 2011 defense authorization bill. The Justice Department argues proceedings on the case should stop until Congress completes this action because, among other reasons, courts “should not decide constitutional issues if they can reasonably avoid doing so.”

Further, the government argues that holding off on adjudication is in the best interest of all parties involved because it would save the court from “expending considerable time and resources on pretrial motions, trial preparation, trial, and any potential post-trial briefing concerning the constitutionality of a statute that may be repealed.”

Doug NeJaime, a gay law professor at Loyola Law School, said he disagrees with the Justice Department’s argument to hold off on proceedings because the “Don’t Ask, Don’t Tell” repeal measure under consideration in Congress is a compromise that “still leaves some uncertainty.”

The measure that lawmakers have put forward wouldn’t take effect until after the Defense Department completes its study on the issue at the end of the year and the president, defense secretary and chairman of the Joint Chiefs of Staff certify that the U.S. military is ready for repeal.

“And given the way in which the [‘Don’t Ask, Don’t Tell]’ repeal has crawled up to this point, I don’t think it makes sense for a court to stay the case pending legislative action,” NeJaime said. “The constitutional questions are ripe for consideration.”

The reply brief also responds to a request from the court to address the potential application of a heightened standard of review set forth in the 2008 Ninth Circuit of Appeals ruling in Witt v. Air Force, which was tied to “Don’t Ask, Don’t Tell.”

The Witt decision, which was construed to only apply to the plaintiff, determined the Pentagon needed to prove lesbian Maj. Margaret Witt’s sexual orientation was a detriment to unit cohesion in order to discharge her from the Air Force.

The Justice Department argues that the Witt standard doesn’t apply in the Log Cabin case because Witt was an as-applied challenge while Log Cabin is a facial challenge.

In a facial challenge, the plaintiff alleges that a statute is always and under all circumstances unconstitutional and therefore void. But in an as-applied challenge, a plaintiff contends that a statute may in part be unconstitutional in redress of a specific injury.

The Justice Department argues that the U.S. District Court of Central California already determined last year that the Witt standard — as an as-applied case — doesn’t apply to the Log Cabin litigation.

“There is no basis to reconsider that ruling, which was and remains correct,” the brief says.

However, should the court decide to evaluate “Don’t Ask, Don’t Tell” under a more heightened review, the Justice Department says the court already rejected a legal challenge with this standard of scrutiny against the policy for gays in the military in the 1980 case Beller v. Middendorf.

“Because Witt does not disturb the analysis employed in Beller with respect to facial challenges, the Beller standard, not the as-applied Witt standard, is binding,” the brief says.

The Justice Department further contends it’s entitled to summary judgment in its favor because Log Cabin’s challenge “would fail under the Beller analysis.”

But NeJaime said he disagrees with the Justice Department’s determination that the Beller case applies to Log Cabin’s litigation and not Witt.

Although Witt is an as-applied challenge, NeJaime said that doesn’t mean “the court’s analysis in Witt, and its application of a heightened standard of review, is irrelevant to the pending facial challenge.”

NeJaime said the Witt court drew on protections afforded to LGBT people in the 2003 U.S. Supreme Court case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.

He said the application of Lawrence in the Witt case is “certainly relevant” in Log Cabin’s facial challenge and “counsels against applying rational basis review, as the government urges the court to do.”

“And, furthermore, I think it casts doubt on the government’s argument that Beller, and not Witt, should govern this case,” NeJaime said. “The pre-Lawrence Beller decision must certainly be re-evaluated in light of the Lawrence decision.”

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

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