by Rex Wockner
The U.S. government moved Oct. 14 to block a Riverside, Calif., federal judge's worldwide injunction issued two days earlier that bars the government from making any further use of the "Don't Ask, Don't Tell" military gay ban.
Justice Department lawyers asked U.S. District Judge Virginia Phillips to suspend the injunction while the government appeals it, saying her mandated, immediate, universal end to DADT was imprudent and could harm the U.S. military.
Phillips rejected the stay request in a tentative ruling Oct. 18, meainig that "Don't Ask, Don't Tell" remains unenforceable worldwide. Leaders in the Pentagon, however, still advised gay troops not to come out during the law's uncertain time.
In issuing her injunction, Phillips said DADT violates servicemembers' and prospective servicemembers' Fifth Amendment due-process rights and First Amendment rights to free speech and to petition for redress of grievances. She permanently enjoined the United States, the defense secretary and anyone working with them from enforcing or applying DADT against any person.
She ordered the U.S. and the defense secretary to "immediately … suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the 'Don't Ask, Don't Tell' Act."
Phillips also granted plaintiff Log Cabin Republicans' request to apply for attorneys' fees and LCR's request to file a motion for costs of suit.
The injunction followed a nonjury trial that was held July 13-23, and Phillips' issuance of her opinion striking down DADT on Sept. 9.
But the Justice Department was having none of it and sought an order staying application of the injunction pending appeal. The Department said that if Phillips rejected the stay, which it appears she has, it would seek "an immediate administrative stay" from the 9th U.S. Circuit Court of Appeals "to allow the orderly litigation of the stay request before that Court."
As of press time, no other attempts by the DOJ to stay the injunction had been made.
"As the president has stated previously, the administration does not support the DADT statute as a matter of policy and strongly supports its repeal," the Justice Department told Phillips. "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."
Beyond that, the injunction was imprudent, disrupting and frustrating, and is possibly harmful, the government said.
"(T)he Department of Defense has established a high-level Working Group that is currently conducting a comprehensive review of the statute and how best to implement a change in policy in a prudent manner," the lawyers said. "The Working Group is nearing completion of its report to the secretary, which is due on Dec. 1. The immediate implementation of the injunction would disrupt this review and frustrate the secretary's ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government's critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the armed forces."
Furthermore, the Defense Department isn't up to the task of stopping DADT cold, the lawyers said.
"The DADT statute implicates dozens of DoD and service policies and regulations that cover such disparate issues as benefits, re-accession, military equal opportunity, anti-harassment, and others," they wrote. "Amending these regulations would typically take several months, because of the need to notify and seek input from all affected to ensure that changes do not inadvertently result in unanticipated negative effects on the force. Properly implementing any change in policy would thus be a massive undertaking by the department and the military and cannot be done overnight. And if the court's judgment is reversed on appeal, the department and the military will have to implement another major policy change – creating further disruption and confusion."
Gay advocates were not pleased.
Human Rights Campaign President Joe Solmonese: "It is certainly disappointing and frustrating that the administration has sought a stay."
Servicemembers Legal Defense Network Executive Director Aubrey Sarvis: "We are disappointed but not surprised."
Servicemembers United Executive Director Alexander Nicholson: "This request from the Obama administration asking Judge Phillips to stay her own injunction was expected, but it is nevertheless disappointing in light of the president's claim that 'Don't Ask, Don't Tell' harms national security and impairs military readiness. … (W)e all hope that our commander in chief will fiercely advocate for the immediate elimination of anything that stands in the way of national security and military readiness."
LCR lawyer Dan Woods: "We are not surprised by the government's action, as it repeats the broken promises and empty words from President Obama avowing to end 'Don't Ask, Don't Tell' while at the same time directing his Justice Department to defend this unconstitutional policy. 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."
GetEQUAL Director Robin McGehee: "Today's appeal by President Obama's Department of Justice is not only indefensible – it is yet another shocking lack of leadership from the White House on issues of equality for the LGBT community. … Yet again, we are faced with action by this administration that stands in stark contrast to the campaign rhetoric and lofty speeches about equality that continue to be served up as progress to our community."
Obama, for his part, tweeted: "Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to. DADT will end & it will end on my watch."
