Log Cabin Atty: DOJ Brief in the DADT Case is ‘Major Change in Govt.’s Position’

By Karen Ocamb -

Log Cabin Republicans 

attorney Dan Woods

UPDATE: Dan Woods, attorney for the Log Cabin Republicans, says this new DOJ brief is “is a major change in the government’s position.” The Justice Department just filed their 59-page brief in the case of Log Cabin Republicans v USA. According to attorney and SLDN boardmember Tom Carpenter, the DOJ asked the 9th Circuit Court of Appeals to reverse the decision by District Court Judge Virginia Phillips, who has ruled that the antigay Don’t Ask, Don’t Tell is unconstitutional. The DOJ also asked the 9th Circuit to invalidate Phillip’s worldwide injunction against enforcement of DADT – which the 9th Circuit has stayed as the case continues. UPDATE: Dan Woods, lead attorney for the Log Cabin Republicans, just emailed this MAJOR UPDATE TO HIS EARLIER STATEMENT:

“The government’s brief is stunning for what it does not say.  As we expected, it argues that Log Cabin Republicans lacked standing to bring the case and that Judge Phillips lacked authority to issue a world-wide injunction; Judge Phillips’s 85-page decision from October 2010 covered these points in great detail and we are confident that the government’s arguments on these points will be rejected.  The government’s only other argument is that the recent repeal of Don’t Ask, Don’t Tell was constitutional but that was not an issue tried before Judge Phillips and was never part of the government’s case before.  The government’s brief does not address the due process or first amendment issues on which Judge Phillips based her decision or the standard of review applicable to our challenge to the constitutionality of Don’t Ask, Don’t Tell.  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.  While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don’t Ask, Don’t Tell is constitutional.  This is a major change in the government’s position.” (Emphasis mine)

R. Clarke Cooper, Log Cabin Republicans Executive Director, issued this statement:

“Once again, President Obama has abdicated his responsibility in ending the failed and unconstitutional ‘Don’t Ask, Don’t Tell’ policy. The Department of Justice’s continued defense of this case and its appellate tactics seek to obfuscate the issues and facts of this case. 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. This position is particularly difficult at a time when DOD commanders are ready to implement open service and open recruitment. When applying different standards between the government’s position in regards to the Defense of Marriage Act and ‘Don’t Ask, Don’t Tell,’ what makes one indefensible and the other appropriate discrimination.”

Carpenter says:

“I concur with Dan, that the Government in its open brief concedes the unconstitutionality of DADT by omitting to even address Judge Phillips’ decision on the most important issue in the case.”

Earlier Woods wrote:

“Am just now reading it.  As expected, the government argues about standing at the beginning and, at the end, argues that the worldwide injunction exceeded the court’s authority.  No surprises in those sections.  What is odd is section II.  It does not appear to argue that DADT is or was constitutional.  It does not address the due process or first amendment issues.  It does not even address, as far as I have been able to tell so far, the government’s position on the appropriate standard of review.  Instead, it argues that the orderly repeal process is constitutional, which was not an issue before Judge Phillips.”

In a story earlier in the day in MetroWeekly, Chris Geidner reported that White House press secretary Jay Carney suggested that President Obama had not told the Justice Department to stop defending DADT in federal court. There has been speculation that Attorney General Eric Holder might tell DOJ attorneys to stand down in the same or similar fashion to the decision to no longer defend the Defense of Marriage Act.
UPDATE: GEIDNER HAS AN ANALYSIS OF THE DOJ’S BRIEF:

“As suggested this afternoon by White House Press Secretary Jay Carney, the Department of Justice has filed its brief defending “Don’t Ask, Don’t Tell” in Log Cabin Republicans v. United States.
It has done so, though, in a rather remarkable way: It changed the question of what the lawsuit is. Noting that “[t]he repeal process is well under way,” the government argues that the appellate court should not be deciding whether DADT is constitutional but should instead be deciding whether the DADT repeal process is constitutional.
The government, in fact, doesn’t even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.”

AP’s Lisa Leff has posted her story as well. Here’s an excerpt:

“The request was made in the government’s opening brief challenging a Southern California trial judge who in September declared the “don’t ask, don’t tell” policy unconstitutional.
“This case is thus now in a different posture,” Assistant Attorney General Tony West wrote for the administration. “That statute is now undergoing a repeal process subject to a more recent law duly enacted by Congress and signed by the President.”
The relevant question now before the 9th Circuit, West maintained, is not whether “don’t ask, don’t tell” is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal.”

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