While the Justice Department is still reviewing a California court’s recent decision overturning the Don’t Ask, Don’t Tell policy, policy makers are pressuring the department not to appeal the ruling. Sens. Kirsten Gillibrand (D-NY) and Mark Udall (D-CO) have written a letter to the DOJ, arguing that “an appeal of the recent federal court decision could set back those congressional efforts” and the Log Cabin Republicans — the plaintiffs who brought the case — are now asking Judge Phillips to issue an injuction and block the government from enforcing the policy:
Phillips won’t rule on a possible injunction for at least a week, but she has already concluded that don’t ask, don’t tell violates the rights of gays and lesbians and harms military readiness. That’s because it hurts recruiting and leads to the discharge of troops with critical skills. In the past 17 years, the law has led to the dismissal of more than 13,000 service members.
Some gay-rights leaders worry that the judge won’t be able to stop the Pentagon from kicking out even more gays and lesbians — especially if government legal appeals stall any injunction.
The DOJ still refuses to comment on its decision, but if last night’s interview with with Vice President Joe Biden is any indication, the department will likely appeal the ruling, tying it up in litigation for several years. Maddow didin’t specifically ask Biden about the case, but the VP’s adherence to the Congressional process and the existing compromise amendment — which does not repeal the policy until the Spring or prevent the military from discharging more soldiers in the interim — suggests that the administration isn’t willing to take additional steps to revoke the policy. “In other words, everybody’s looking for, in my view, if I could just wave a wand, it would just be flat repeal,” Biden said. “But the truth of the matter is, we had to build a consensus for this. Working very hard on the telephone. Calling people. And everybody’s looking forward to the orderly elimination of this law. I would prefer it not be orderly. I prefer it just end, boom, done. But that’s why that hasn’t happened.
Legal expects disagree on the reach of Phillips’ possible injunction (whether or not it could effect the whole country), but say that “because this is a facial challenge, not just an as-applied challenge,” it could have broad implications beyond the plaintiffs in this one case.