In Defense Of DOJ’s Decision To Delay Court Ruling On Don’t Ask, Don’t Tell

Over at AmericaBlog, Joe Sudbay and John Aravosis criticize the the Department of Justice, “which has aggressively defended the discriminatory Don’t Ask, Don’t Tell law” for asking the court to delay its ruling in light of Congress’ recent action on the issue:

The problem with that is, of course, that the legislation 1) hasn’t passed: 2) doesn’t repeal DADT; and 3) no one, not even the Obama DOJ, can say when the discharges will end. DOJ notes, “The House and Senate bills contain identical language and are attached hereto Exhibits 1 and 2, respectively, for the Court’s convenience and review.” But, that ignores the Senate floor process where we know opponents of repeal intend to offer killer amendments. This brief reads like something a first-year law student wrote.

I find it interesting that the DOJ argues that the court should defer ruling in a case when the DOJ chooses to defend laws like DADT and DOMA when it’s not absolutely necessary to defend those laws.

But the real problem here is the opposite. I’ll grant that repeal certainly isn’t final and faces some substantial hurdles in the Senate, but those obstacles are hills compared to the mountains we’ll have to climb if the court upholds the policy. A court decision supporting the ban could energize not only conservative advocates but also the men of the military who have publicly embraced the President’s decision as a general concept, but seem very uncertain about the prospect of actually regulating DADT out of existence.


It’s those men — Gates, Mullen and the Chiefs — who are responsible for actually changing the military’s regulations in this regard and (given their already considerable foot dragging on the issue) it’s just not believable to say that a court decision will spring them into action. To some degree, the policy change will have to occur on their time table, like it or not. And the time table of the Murphy compromise, is something we could all probably (however grudgingly) live with.