US News

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U.S. NEWS
September 27, 2010
by Rex Wockner
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Gov't urges court not to issue worldwide injunction in DADT case
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In a Sept. 23 filing, the U.S. Justice Department asked the federal district court in Riverside, Calif., not to issue a worldwide injunction against enforcement of the Don't Ask, Don't Tell gay ban.

U.S. District Judge Virginia Phillips struck down DADT on Sept. 9, ruling that it violates the U.S. Constitution's guarantees of free speech and due process under the First and Fifth Amendments.

Plaintiff Log Cabin Republicans then asked Phillips to issue such an injunction. The government filing included a host of arguments against the idea.

"The United States is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress, or defend its constitutionality in other tribunals," the federal government argued.

"(Log Cabin Republicans') proposed injunction is untenable," the government said. "Because any injunction in this case must be limited to plaintiff LCR and the claims it asserts on behalf of its members -- and cannot extend to non-parties -- plaintiff's requested world-wide injunction of the statute fails as a threshold matter. A military-wide injunction would, moreover, prohibit the consideration of similar challenges in other courts and would freeze the development of important questions of law in violation of the Supreme Court's clear direction that, in cases in which the United States is a defendant, the United States must be allowed to continue to advance legal arguments even after they have been rejected by a particular circuit."

Furthermore, the government argued, "both the Executive and Legislative branches are actively examining the DADT law and policy. A court should not compel the Executive to implement an immediate cessation of the seventeen year old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe."

Finally, "no injunction should be entered or made effective until the government has had an opportunity to consider the terms of any injunction and to move for a stay," the Justice Department asserted.

LCR denounced the filing.

"We are not surprised by this but we are extremely disappointed with the Obama administration," the group 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 group's lawyers sounded incredulous.

"The Justice Department's objections fail to recognize the implications of the government's defeat at the trial," said White & Case partner Dan Woods. "It is as if the South announced that it won the Civil War. The objections also fail to mention that the court has previously denied the government's requests for a stay on three prior occasions and nothing has changed to suggest that a stay is now appropriate; if anything, the Senate vote this week (declining to consider repeal of DADT) shows that the court was correct in denying the prior requests for a stay. 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. That is the saddest, most disappointing, and, in light of the president's position, most hypocritical part of the objections."

Servicemembers United Executive Director Alexander Nicholson expressed outrage.

"President Obama is certainly taking his so called 'duty to defend' this anti-gay military policy as far as he possibly can," he said. "Two blows from the White House in one week is a bit much. 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. When is the White House finally going to get serious about repealing Don't Ask, Don't Tell? We needed help this week, and our commander-in-chief and 'fierce advocate' was AWOL."

But Obama Press Secretary Robert Gibbs defended the filing.

He said: "Today, the Department of Justice made a filing in a legal challenge to the Don't Ask, Don't tell (DADT) policy, as it traditionally does when acts of Congress are challenged. This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT -- indeed, it clearly shows why Congress must act to end this misguided policy. The president was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act (which includes repeal of DADT), but political posturing created a 60-vote threshold. The president spoke out against DADT in his first State of the Union Address, and the secretary of defense and the chairman of the Joint Chiefs have both testified in support of repeal. And the Department of Defense continues to work on a plan on how to implement repeal. The president, along with his administration, will continue to work with the Senate leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall."

The day after the Justice Department filed its objections in California, the DADT gay ban was hit with another adverse ruling, from a federal court in Tacoma, Wash.

U.S. District Judge Ronald Leighton, a Bush appointee, ordered that Maj. Margaret Witt, a nurse who was kicked out of the Air Force for being a lesbian, be reinstated as quickly as possible.

Leighton said the military's firing of Witt "violated her substantive due process rights under the Fifth Amendment to the United States Constitution."

Said SU's Nicholson: "Major Witt's victory will apply only to her own discharge, but the precedent set with this decision and the previous appellate court ruling in this case on the standard to be used in deciding on Don't Ask, Don't Tell discharges all contribute to a significant shift in how courts appear to be viewing and treating the Don't Ask, Don't Tell law."



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Senate fails to move forward with Don't Ask, Don't Tell repeal
--Measure could be dead for this year
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The U.S. Senate failed by four votes Sept. 21 to end a filibuster by Sen. John McCain, R-Ariz., and move on to consideration of this year's military funding bill that contains congressional authorization to repeal the Don't Ask, Don't Tell gay ban.

The vote was 56-43. Sixty votes were needed to halt the filibuster. The measure already had passed the House of Representatives. Although Congress may opt to fund the military after the November elections, the provision repealing Don't Ask, Don't Tell likely faces a less hospitable climate then, advocates predicted.

"Today's Senate vote was a frustrating blow," said Servicemembers Legal Defense Network Executive Director Aubrey Sarvis. "We lost because of the political maneuvering dictated by the midterm elections. Let's be clear: Opponents to repealing Don't Ask, Don't Tell did not have the votes to strike those provisions from the bill. Instead, they had the votes for delay. Time is the enemy here. We now have no choice but to look to the lame-duck session where we'll have a slim shot."

National Gay and Lesbian Task Force Executive Director Rea Carey accused "politicians (of) playing politics with people's lives."

"Seventy-eight percent of Americans support ending Don't Ask, Don't Tell," she said. "The senators who led and supported the filibuster effort should be ashamed."

Servicemembers United Executive Director Alexander Nicholson blamed Senate Majority Leader Harry Reid, D-Nev., for the loss.

"The votes to break the filibuster had previously been lined up, but last week ... Harry Reid decided to use an uncommon procedural privilege on the bill that eroded support for breaking the filibuster and guaranteed the vote's failure," Nicholson said. "Intense lobbying and public pressure over the past week proved not to be enough to force either side to back down."

Courage Campaign Chairman Rick Jacobs responded to the loss by saying the Justice Department and President Barack Obama should opt not to appeal the recent federal court decision in Riverside, Calif., that struck down DADT as unconstitutional.

"We applaud the Log Cabin Republicans for initiating this case and we hope the Justice Department recognizes that it's time to consign this discriminatory law to the dustbin of history," Jacobs said.

Human Rights Campaign President Joe Solmonese said the filibuster "was election-year politics at its worst."

HRC sent a letter to Attorney General Eric Holder joining Courage in demanding the government not appeal the Riverside decision.

"We expect the Justice Department to recognize the overwhelming evidence that proves DADT is unconstitutional," Solmonese said.

GetEQUAL responded by calling on Obama to issue an executive order suspending discharges under DADT between now and the time that repeal is achieved.

"Four months ago, we asked the president to stop military discharges while the U.S. Congress haggled over our rights," the group said. "He didn't respond, and we're now seeing the result of this complete lack of presidential leadership and courage. So we're taking the fight back to the White House."

"We need volunteers to help us hold the president accountable and meet him head-on during this election season, asking him at each campaign stop and at each fundraising party, 'When will the discharges end?'" the direct-action group said. "Now it's time for our 'fierce advocate' to step up to the plate for us."

Nearly 80 percent of Americans support repealing DADT, according to a recent CNN poll.

If the Senate had passed DADT repeal and President Barack Obama signed it, nothing would have happened right away. That's because of language in the bill that delays repeal until three things take place: the Pentagon completes a study by Dec. 1 on how to implement DADT repeal; Obama, Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Michael Mullen certify that the military will not be harmed by implementing DADT repeal in accord with the Pentagon's plans; and 60 additional days pass after the certification.

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Americans now support same-sex marriage
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An Associated Press-National Constitution Center poll has found that a majority of Americans now think the federal government should recognize same-sex marriages.

Asked, "Should the federal government give legal recognition to marriages between couples of the same sex, or not?" 52 percent of respondents said "yes," 46 percent said "no" and 2 percent were unsure.

The poll also asked, "Should couples of the same sex be entitled to the same government benefits as married couples of the opposite sex, or should the government distinguish between them?"

Fifty-eight percent said benefits should be equalized, 38 percent said they should not be, 3 percent were unsure and 1 percent refused to answer the question.

The poll, conducted Aug. 11-16, quizzed 1,007 adults and has a margin of error of 4.5 percent at the 95 percent confidence level.

"For the second time, a national poll shows that a majority of Americans support the freedom to marry, reflecting the growing momentum of the marriage movement," said Freedom to Marry Executive Director Evan Wolfson. "Echoing the findings of last month's CNN poll, the Associated Press poll shows that those who would deny liberty and equal protection to same-sex couples are now in the minority."

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New York OKs gay couple adoption
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Gov. David Paterson signed a bill Sept. 19 OK'ing adoption by gay and other unmarried couples. It took effect immediately.

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