Will the Justice Department Drop Its Defense of Don’t Ask, Don’t Tell?

By Karen Ocamb -

LCR attorney Dan Woods

LGBT rights advocates were startled Wednesday with the announcement from US Attorney General Eric Holder that the Department of Justice (DOJ) will no longer defend the Defense of Marriage Act in court. (See explanations from Lambda Legal’s Jon Davidson here / and from law professor Tobias Wolff here.)
Meanwhile – the DOJ is expected to file their brief on Friday in the Log Cabin Republican’s federal case challenging the constitutionality of Don’t Ask, Don’t Tell. (See more about the case here.) I asked lead attorney Dan White if he thinks the DOJ might decide to drop their defense of DADT, as they did with DOMA. Here’s his response:

If the DOJ follows the same rationale in our case, it should similarly decide not to continue with the appeal from Judge Phillips’s decision.  Two reasons for this:  (1) the statements by the Attorney General about the Lawrence case yesterday track what we (and others) have said about the true meaning and implications of that case; those statements conflict with the narrow interpretation of Lawrence posited by the government in our case; and (2) the statements yesterday about the standard of review also track and are consistent with our arguments and Judge Phillips’s decision and conflict with the government’s argument for rational basis review only in our case.
Having said that, we have no current expectations as to how the government intends to proceed tomorrow with its brief in our case.  We have heard nothing from the government and I can imagine several reasons why the government might claim it has to take a different approach in our case (e.g., ours is a facial challenge; the court in our case issued an injunction that would bind the government if it dropped the appeal, etc.).
We’ll all see what happens tomorrow.

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