As debate continues about whether to defend the Defense of Marriage Act, the military continues to discriminate against gays, lesbians, and bisexuals. Though “Don’t Ask, Don’t Tell,” was “repealed” last December, it will remain in effect until 60 days after the repeal is finally certified later this summer. During that time, the Log Cabin Republicans continue to challenge the law in court and the Department of Justice very much continues to defend it, filing just last week to suspend legal proceedings while the certification process continues.
LCR’s lawyer Dan Woods responded to the filing in a statement:
Log Cabin Republicans v. United States is still alive and kicking in our court system, for very good reason. This case is necessary because discharges and investigations are still happening, it is necessary because we need to keep the pressure on to ensure that repeal actually happens, and it is necessary as insurance to set the precedent so that ‘Don’t Ask, Don’t Tell’ can’t come back. Log Cabin Republicans was willing to delay this appeal briefly while the certification process proceeds but only if the government agreed not to discharge any more servicemembers under DADT. It was and is unfortunate and inexplicable that government did not accept our proposal.
As an example, Cadet Katie Miller, who had previously resigned from the West Point Academy to protest DADT, was rejected from readmission just last week because the law is still very much in effect.
The decision to continue defending DADT seems at odds with the DOMA decision. In February, Eric Holder announced that the DOJ would no longer defend the Defense of Marriage Act because “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” When Judge Virgina Phillips ruled against DADT last September, she pointed out in her decision that DADT discriminates against gay and lesbian servicemembers’ freedom of speech. Surely one form of discrimination against the LGBT community is no more defensible than another.
Either discrimination should be defended or it shouldn’t, and this filing makes it unclear where exactly the DOJ stands. If there is a different standard for LGBT Americans depending on the political implications of the case, it raises the question of whether justice is the top priority.