National
Obama administration requests stay of ‘Don’t Ask’ injunction
Request made with California district court
The Obama administration on Thursday requested a stay with a California federal court against a recently issued injunction prohibiting enforcement of “Don’t Ask, Don’t Tell,” according to documents obtained by the Blade.
In the notices, the U.S. Justice Department seeks a stay from U.S. District Court Judge Virginia Phillips, who issued the injunction on Tuesday, under the presumption that the Obama administration will appeal the ruling to the U.S. Ninth Circuit Court of Appeals.
“Defendants request that the Court issue an order to stay pending appeal of its Order, dated October 12, 2010 (Doc. 252), permanently enjoining enforcement of the ‘Don’t Ask, Don’t Tell’ (DADT) statute, 10 U.S.C. § 654, and implementing regulations,” one notice states.
The Justice Department asks that the district court issue a stay before Monday. If a stay is not yet entered by that time, the administration says it will seek such action from the Ninth Circuit.
On Tuesday, Phillips issued an injunction prohibiting the U.S. government from enforcing “Don’t Ask, Don’t Tell” in the wake of her court decision last month striking down the law. The Justice Department had 60 days from the time the injunction was issued to make an appeal to a higher court.
In a statement, Christian Berle, deputy executive director of Log Cabin Republicans, said he isn’t surprised the Obama administration is seeking a stay against the injunction. In 2004, his organization filed the lawsuit that led to the order.
“After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend ‘Don’t Ask, Don’t Tell,’” Berle said. “Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied.”
Dan Woods, an attorney with White & Case LLP, which represented Log Cabin in court, swore to fight against the stay to ensure open service in the U.S. military.
“Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic homosexuals are serving in our Armed Forces to fight for all of our constitutional rights while the government is denying them theirs,” Woods said.
One of the notices offers a litany of reasons why the injunction against “Don’t Ask, Don’t Tell” should be stayed. Some arguments are the injunction will “irreparably harm the public interest in a strong and effective military” and will require “a precipitous change in policy that threatens the public interest in a strong military.”
“The injunction forces the executive to immediately cease enforcing a statute enacted by Congress regarding military affairs, which alone creates harm justifying a stay,” the notice states. “The injunction also requires an immediate and dramatic change in policy without allowing time to do so in an orderly and comprehensive way.”
A footnote in the notice states that although President Obama opposes “Don’t Ask, Don’t Tell,” the administration feels compelled to defend the 1993 statute because it’s federal law.
“As the President has stated previously, the Administration does not support the [‘Don’t Ask, Don’t Tell’] statute as a matter of policy and strongly supports its repeal,” the notices states. “However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”
In a press conference Thursday, White House Press Secretary Robert Gibbs reiterated Obama’s opposition to “Don’t Ask, Don’t Tell,” but said Congress should be responsible for ending the statute.
“The president believes that this is a policy that undermines our national security, discriminates against those who would sacrifice their lives for their country, and is unjust; that the policy needs to be changed and should be changed,” Gibbs said. “His hope is that the Senate will take up the legislation pending before them to do just that, as the House of Representatives has already done.”
Officials in the Obama administration publicly expressed concern about the injunction against “Don’t Ask, Don’t Tell” this week.
According to the Associated Press, Defense Secretary Robert Gates told reporters Wednesday that abruptly ending “Don’t Ask, Don’t Tell” would have “enormous consequences” for U.S. service members. A Pentagon working group is examining the way to implement repeal of “Don’t Ask, Don’t Tell” and is expected to deliver a report to Gates by Dec. 1.
A co-founder of OutServe, a network for active duty LGBT service members, called Gates’ remarks”a direct attack against gay and lesbian military personnel” and denied there would be “enormous consequences” after lifting the ban on open service.
“The reality is unit cohesion is destroyed by directly making military members lie about themselves and that is a proven fact,” said the co-founder, who goes by the alias J.D. Smith because he currently serves in the U.S. military.
“By saying we would create ‘enormous consequences’ he [is] attacking us,” Smith continued. “No other group of currently serving military personnel would be attacked like this.”
In response to Gates’ comments, the Palm Center, a think tank on gays in the military at the University of California, Santa Barbara, issued a statement calling on Gates to identify the “enormous consequences” of ending “Don’t Ask, Don’t Tell” enforcement.
“Secretary Gates’ suggestion that ‘enormous consequences’ await any immediate implementation of openly gay service stands in stark contrast to the evidence from other foreign militaries,” said Aaron Belkin, director of the Palm Center. “Swift change and strong leadership were identified as the two key elements to this process. America is unique but we will not be the first nation to allow openly gay service, we will be the twenty-sixth.”
U.S. Military/Pentagon
Federal appeals court rules White House illegally banned trans troops
Defense Secretary Pete Hegseth says Pentagon will appeal to SCOTUS
A panel of federal appeals court judges ruled that President Donald Trump’s policy banning transgender troops likely violates their constitutional rights.
The three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that Trump’s Executive Order 14183, also known as “Prioritizing Military Excellence and Readiness,” was created with the intent to exclude people from the military based on their gender identity.
The policy argues that trans people are inherently incapable of meeting the military’s “high standards of readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” citing a history of or signs of gender dysphoria as the cause. According to the Defense Department, this creates “medical, surgical, and mental health constraints on [an] individual.”
The policy states that, regardless of the physical or intellectual capabilities of each applicant, it views trans military applicants as a monolith, considering them less qualified than their cisgender peers.
Despite the panel’s majority opinion issued on Monday, the first day of Pride Month, the ban remains in effect. The U.S. Supreme Court allowed the Pentagon to enforce the policy last year and will continue to allow it to remain in place as litigation proceeds.
The panel’s new ruling will prevent the military from discharging current service members named in the lawsuit, but it does not allow new transrecruits to join.
The policy “appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender,” Judge Robert Wilkins, a Democratic appointee of President Barack Obama wrote for the majority.
Judge Justin Walker, the author of the dissenting opinion and a Republican Trump appointee, argued that the authority to determine military policy does not rest with the courts. Instead, he wrote, the Constitution grants that power to Congress through legislation and to the president as commander in chief of the armed forces.
“We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the commander-in-chief,” Walker wrote.
Defense Secretary Pete Hegseth indicated that an appeal is in the works, posting, “See you at SCOTUS” on X on Monday in response to the ruling.
Jennifer Levi, senior director of transgender and queer rights at GLAD Law, which has led the litigation since last November, applauded the decision.
“Today’s decision is a powerful vindication of the plaintiffs’ extraordinary courage and unwavering commitment to their country,” Levi said.
The Washington Blade spoke with Second Lt. Nicolas (Nic) Talbott of the U.S. Army, the lead plaintiff in the case, and Levi from GLAD Law back in November.
While discussing the case and his experiences as a trans service member, Talbott said his identity is an asset rather than a hindrance, particularly when it comes to identifying problems and finding solutions, regardless of what others may think or say.
“Being transgender is not some sad thing that people go through,” Talbott told the Blade. “This is something that has taken years and years and years of dedication and discipline and research and ups and downs to get to the point where I am today … my ability to transition was essential to getting me to that point where I am today.”
He also discussed the impact of removing qualified and dedicated service members from the military, arguing that the consequences will be felt long after Trump leaves office.
“When we’re losing thousands of those qualified, experienced individuals … those are seats that are not just going to be able to be filled by anybody,” he said. “[That’s] military training that’s not going to be able to be replaced for years and years to come.”
“Every person who puts on the uniform is expected to make a tremendous amount of sacrifice,” Talbott said. “Who I am under this uniform should have no bearing on that … We shouldn’t be picking and choosing which veterans are worthy of our thanks on that day.”
Levi characterized the policy as overtly cruel and legally indefensible to the Blade.
“This policy and its rollout is even more cruel than the first in a number of ways,” Levi explained. “For one, the policy itself says that transgender people are dishonest, untrustworthy and undisciplined, which is deeply offensive and degrading and demeaning.”
She also argued that the administration’s cost justification is flawed, saying that removing and replacing trans service members is more expensive than retaining them.
“There’s no legitimate justification relating to cost … it is far more expensive to both purge the military of people who are serving and also to replace people … than to provide the minuscule amount of costs for medications other service members routinely get.”
National
Results from key Tuesday primary races
State officials in California had not called the governor’s race as of Wednesday morning but Republican Steve Hilton and Democrat Xavier Becerra appear likely to advance to the general election.
The race for governor has been scrambled several times after Kamala Harris opted not to run, Rep. Eric Swalwell dropped out after sexual misconduct allegations surfaced, and Rep. Katie Porter’s campaign fizzled. Becerra would be the state’s first Latino governor since 1875 if elected. Hilton was endorsed by President Trump.
In the Los Angeles mayor’s race, the AP declared that incumbent Mayor Karen Bass will advance to the Nov. 3 runoff while former reality TV star Spencer Pratt and LA Council member Nithya Raman were competing for second place. California is notoriously slow in counting ballots and only about half of the results were available by Wednesday morning.
In San Francisco, Democratic State Sen. Scott Wiener advanced to the general election in November, besting Supervisor Connie Chan, who was endorsed by House Speaker Emerita Nancy Pelosi. Pelosi is retiring from Congress after nearly 40 years in the House.
In Iowa, Democratic state Rep. Josh Turek won the primary for an open U.S. Senate seat, defeating state Sen. Zach Wahls. Turek will face Rep. Ashley Hinson, who won the GOP primary with President Donald Trump’s endorsement, in the general election.
The Iowa seat is open because Sen. Joni Ernst (R) decided not to seek re-election. The primary was closely watched by LGBTQ advocates because Wahls rose to national prominence after a speech he made defending marriage equality went viral in 2011. Wahls was raised by a lesbian couple.
National
White House Correspondents’ Dinner rescheduled after shooting
‘We will not allow an act of violence to have the last word’
The White House Correspondents’ Association announced on Tuesday that it has rescheduled its annual dinner for July 24 after the April event was halted when gunshots rang out at the Washington Hilton.
Cole Allen, 31, is charged with the attempted assassination of President Trump, who was in the ballroom at the time of the incident. One Secret Service officer was wounded in the attack. Officers stopped Allen before he could enter the ballroom where 2,500 journalists and politicos were having dinner and waiting for Trump to speak. It was Trump’s first time attending as president.
“We will not allow an act of violence to have the last word, especially during a year when we are reflecting on the 250th anniversary of America and everything we stand for,” said WHCA President Weijia Jiang in a statement to members.
She did not announce further details, including venue and ticketing.
Washington Blade White House reporter Joe Reberkenny was in the audience when shots were fired and reported live on social media from the scene.
This post will be updated as more details are announced.
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