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Obama still defending ‘Don’t Ask’ in court

Justice Dept. files brief with Ninth Circuit

Published

15 years ago

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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.

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Pennsylvania

Pa. House passes bill to codify marriage equality in state law

Governor supports gay state Rep. Malcolm Kenyatta’s measure

Published

5 hours ago

on

March 26, 2026

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Pennsylvania Capitol Building (Washington Blade file photo by Michael Key)

The Pennsylvania House of Representatives on Wednesday passed a bill that would codify marriage equality in state law.

House Bill 1800 passed by a 127-72 vote margin. Twenty-six Republicans voted for the measure.

The Republican-controlled Pennsylvania Senate will now consider the bill that state Rep. Malcolm Kenyatta (D-Philadelphia), who is the first openly gay person of color elected to the state’s General Assembly, introduced. Democratic Gov. Josh Shapiro supports the measure.

“Here in Pennsylvania, we believe in your freedom to marry who you love,” said Shapiro on Wednesday. “Today, the House has stepped up to protect that right.”

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Florida

DeSantis signs emergency bill that restores Fla. ADAP funding

Temporary funds to last through June 30

Published

20 hours ago

on

March 25, 2026

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Republican Florida Gov. Ron DeSantis (Screen capture/NBC News)

After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.

Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.

The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.

Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.

“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.

The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.

DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.

AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.

Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.

The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.

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Federal Government

Markwayne Mullin confirmed as next DHS secretary

Okla. senator to succeed Kristi Noem

Published

2 days ago

on

March 24, 2026

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The U.S. Senate confirmed Markwayne Mullin as the next secretary of Homeland Security on Monday, as the agency continues to grapple with what lawmakers have described as a “never-ending” funding standoff, with Democrats attempting to withhold funding from one of the nation’s largest and most costly agencies.

Mullin — a Republican senator from Oklahoma, former mixed martial arts fighter, and plumbing business owner — was confirmed in a 54–45 vote. Two Democrats — U.S. Sens. John Fetterman (D-Pa.) and Martin Heinrich (D-N.M.) — sided with Republicans in supporting his confirmation.

The new agency head is expected to follow the policy direction set by President Donald Trump, emphasizing stricter immigration enforcement. This includes proposals to support immigration agents at polling sites and to cut funding to so-called “sanctuary cities.”

Mullin replaces Kristi Noem, who was fired earlier this month following a widely scrutinized 2-day congressional hearing on Capitol Hill.

During the hearing, Noem faced intense questioning over her response to several crises, including the fatal shooting of two American citizens in Minneapolis by U.S. Immigration and Customs Enforcement agents, a $220 million border security advertising campaign that featured her on horseback near Mount Rushmore amid one of the largest federal workforce reductions in U.S. history, and the federal response to major natural disasters such as the July 2025 Texas floods and Hurricane Helene in 2024.

Noem had previously drawn criticism for a series of policy decisions in South Dakota that broadly focused on restricting the rights of LGBTQ individuals. In 2023, she signed House Bill 1080, banning gender-affirming medical care for transgender minors. She also signed legislation and executive orders restricting trans athletes’ participation in women’s sports, as well as the state’s “Religious Freedom Restoration Act,” which critics argued enabled discrimination against LGBTQ individuals. Additionally, the state canceled contracts related to LGBTQ support services — including suicide prevention and health care navigation programs‚ and later agreed to a $300,000 settlement with trans advocacy group, The Transformation Project.

Despite her removal from DHS, Noem will remain in the Trump-Vance administration as a special envoy for the “Shield of the Americas,” an initiative aimed at promoting U.S. influence in the Western Hemisphere, including efforts to counter cartel networks, reduce Chinese influence, and manage migration.

The new head of DHS has served in Congress since 2013, in both houses of the federal legislature. While in the Senate and a member of the Health, Education, Labor, and Pensions (HELP) Committee, Mullin has been a vocal critic of policies aimed at expanding LGBTQ inclusion. He led a group of lawmakers in urging the Administration for Community Living to reverse a rule requiring states to prioritize Older Americans Act services based on sexual orientation and gender identity, arguing the policy could have unintended consequences.

Mullin also makes history as the first Native American — and a citizen of the Cherokee Nation — to lead the Department of Homeland Security. He was also among the 147 Republicans who voted to overturn the 2020 presidential election results despite no evidence of widespread fraud, and was present in the U.S. House of Representatives chamber on Jan. 6.

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