Moments ago, the Obama Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. From the Advocate’s Kerry Eleveld:
Sources said Justice Department attorneys are expected to file the request to U.S. district judge Virginia A. Phillips in Riverside, Calif. this afternoon.
Should Phillips deny the request for a stay, government attorneys are expected to file an emergency request to the U.S. court of appeals for the ninth circuit.
Repeal advocates have argued that while the Department of Justice has an obligation to defend existing law, “it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.”
But in the days since Republicans and two Democrats successfully filibustered repeal in the Senate (the measure passed the House in May), it’s become increasingly clear that Obama still believes that the policy is, in fact, constitutional. Obama has consistently argued that he would continue to try to repeal Don’t Ask, Don’t Tell through the legislative process to accommodate the work of the Pentagon’s ongoing review. “I don’t think it’s too much to ask, to say ‘Let’s do this in an orderly way’ — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy,” Obama told Rolling Stone magazine in late September. The request for a stay comes a day after Secretary of Defense Robert Gates warned that ending the ban is “an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training.” “It has enormous consequences for our troops,” Gates said.
Earlier today, The Palm Center submitted a FOIA request to the Department of Defense for any reports or information related to negative or “extreme consequences” from this injunction period of open service and Press Secretary Robert Gibbs said that the Pentagon was working on new guidelines to be released in the near future about how to deal with the injunction. Also, today, Dan Woods, the lead attorney in the case sent a letter to the Department of Justice citing a New York Times story claiming that Omar Lopez, a gay veteran, was prohibited from reinlisting. If the Times story is accurate, Woods says, “the Defense Department would appear to be in violation of the Court’s injunction and subject to citation for contempt.” SLDN also reported this afternoon that it had learned that an email was sent to JAG officers in the U.S. Air Force suggesting that the military was preparing to comply with the injunction. “At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms,” it read.
The DOJ’s stay request comes after intense lobbying from House and Senate Democrats — including House Speaker Nancy Pelosi — to allow the ruling to stand and seems to contradict Obama’s promise to end the policy before the end of the year, a pledge administration officials reiterated as recently as September 23.
Obama could still begin the process of ending the policy this year by using his “stop loss” authority to issue an order prohibiting the Secretary of Defense from establishing, implementing, or applying any personnel or administrative policies on the basis of sexual orientation. Or, the Senate could try to pass the measure after the Pentagon completes its review of the policy in December.
,Over at Poliglot, Chris Geidner notes that the government is appealing the ruling to avoid a situtation that could “place gay and lesbian servicemembers” in “grave uncertainty”:
Further, an injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.
,The Washington Post is reporting that the Pentagon “will comply with a court order to stop enforcing its ‘don’t ask, don’t tell’ policy barring gays from serving openly in the military, even as the Obama administration asked a federal judge to delay implementation of the ruling. Officials say they need time to institute new policies to ensure that the change won’t affect combat readiness or morale. The administration has said it will appeal the ruling to the the U.S. Court of Appeals for the 9th Circuit.”