Last week, following a federal district court ruling which found Don’t Ask, Don’t Tell is unconstitutional, the Log Cabin Republicans — the plaintiffs in that case — filed an injunction to prevent the Defense Department from enforcing the policy and end the military’s ban against openly gay and lesbian servicemembers. The group asked Judge Phillips to prohibit the Pentagon “from enforcing or applying” DADT “including any implementing regulations, against any person under their jurisdiction or command.” The group also asked that the Judge suspend all ongoing DADT-related investigations. Moments ago, the Justice Department filed an objection to the proposed injunction, insisting that the judge’s decision be limited to the plaintiffs in the suit. The government argued that a wide injunction would “foreclose the US from litigating the constitutionality” of DADT in other cases and frustrate the ongoing Pentagon review of the policy:
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. [...]
Witt affords the government the opportunity to develop the record to show that individual discharges are necessary upon a showing that the discharge of a particular servicemember “significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.” By enjoining all discharges, plaintiff’s proposed injunction would effectively preclude any such showing and prevent the as-applied adjudications the Ninth Circuit contemplated in Witt. Finally, binding Ninth Circuit precedent limits the authority of the district court to issue injunctive relief that would restrict the government’s enforcement of DADT throughout the entire country, as such an order would fail to afford due respect to the rulings of a sister circuit that has rejected the claims that would form the basis for the district court’s order of injunctive relief. [...]
“Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy. An injunction with immediate effect will put DoD in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.”
Following the Senate’s failure to begin debating the resolution, several Democratic lawmakers and repeal advocates saw the case as the fastest way to end DADT, and publicly urged DOJ not to appeal Judge Phillip’s decision. But this is merely the injunction. Once the judge enters her judgment, the crucial test will be whether the government decides to appeal her ruling. It’s also interesting that the government doesn’t defend the policy, and just questions the scope of LCR’s demands.
Read the DOJ’s entire response HERE.
“[T] Supreme Court has instructed civilian courts to “hesitate long before entertaining a suit which asks the court to tamper with . . . the military establishment.”
,”Because LCR has not and cannot demonstrate that the sweeping injunction it seeks is necessary to remedy its claims, an injunction imposing far-reaching restrictions on the armed forces would thus be manifestly improper under both the general rule and the Supreme Court’s further admonitions in the military context.”
,”Plaintiff’s proposed language is not limited to the enforcement of DADT, but appears to subject all employees of the United States government to contempt and enforcement in this Court based on claims relating to any actions “based upon” a servicemember’s (or a “prospective servicemember’s”) sexual orientation.”
,Statement from White House Press Secretary Robert Gibbs:
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, 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.