DOJ Calls Injunction Request in DADT Case "Untenable"

Posted by Chris Geidner
September 23, 2010 8:21 PM |

U.S. District Judge Virginia Phillips should not issue an injunction halting all enforcement of the military's "Don't Ask, Don't Tell" policy because the United States is "not a typical defendant," DADT has been upheld by other courts, and DADT is a law relating to the military, according to a court filing made by the Justice Department this evening.

Because of these and other considerations, trial attorney Paul G. Freeborne wrote for the Department of Justice, the proposed order that Log Cabin Republicans has asked Phillips to enter halting all enforcement of DADT is "untenable." Instead, the filing states, "this Court should limit relief to current LCR members."

Phillips -- following her ruling on September 9 in LCR v. United States that DADT is unconstitutional -- asked LCR to provide her with a proposed judgment enforcing her ruling and the government to respond to that proposed judgment by submitting its objections.

The government's filing is broad, criticizing LCR's request for a total injunction of the law (as opposed to one just covering LCR's members) despite the fact that Phillips's opinion acknowledged the challenge to the statute was a facial one. Phillips, explaining such a challenge, wrote in the opinion, "a plaintiff challenging the validity of a law on its face must establish that 'no set of circumstances exists under which the Act would be valid.'"

Although perfectly sensible from a legal standard, the most striking paragraph in the brief is when the government discusses LCR's request that the government be prohibited from discriminating on the basis of sexual orientation against servicemembers. The filing states:

Plaintiff’s proposed injunction also attempts to sweep broadly to include not only DADT, but to bring within this Court’s judgment (and contempt power) any claim in which any employee of the United States government is alleged to have taken action based upon a servicemember’s (or a prospective servicemember’s) sexual orientation.  Because plaintiff has only challenged DADT, any injunction must necessarily be limited to the DADT statute.

LCR only challenged the discriminatory law and policy, in other words, not all discrimination.

The government also argued that "the Court should defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches."

This is not an appeal. It does not contain a notice of appeal and does not state that there will be an appeal. It does, however, make an appeal appear to be a foregone conclusion, with the filing stating that "the interim invalidation of a statute itself causes recognized injury warranting a stay." This "interim invalidation" language -- and the cases then cited by the government in support of that proposiiton -- strongly suggest that an appeal is forthcoming.

Following the filing, White House spokesman Robert Gibbs released the following statement:

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.

R. Clarke Cooper, the executive director of LCR, released the following statement:

"We are not surprised by this but we are extremely disappointed with the Obama Administration. Many times on the campaign trail, President Obama said he would support the repeal of 'Don't Ask, Don't Tell.' Now that it's time to step up to the plate, he isn't even in the ballpark." 

The government's filing: Defendants Objections to Proposed Judgment.pdf

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