The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for "emergency" reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the "Don't Ask, Don't Tell" law -- a motion that asks for the stay to be put back in place by "close of business" on Friday, July 15.
Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit's claim that "it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654" -- the DADT law. DOJ countered today that "it has fully defended, and continues to defend, the constitutionality" of DADT "as it exists following enactment of the Don't Ask, Don't Tell Repeal Act of 2010." DOJ makes the argument in a letter that states that -- after the repeal act was signed into law -- Section 654 became a "transitional provision."
The government argues that "§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 'shall remain in effect until such time that all of the requirements and certifications required by' the Repeal Act 'are met.'" Because of this provision in the repeal act, the government argues, "§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process."
The chief of staff of the Repeal Implementation Team at the Department of Defense -- Marine Corps Major General Steven A. Hummer -- detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.
Hummer states, "At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress."
On Jan. 10, however, in responding to the government's initial appeal to the Ninth Circuit, lawyers for LCR argued that, regardless of the reasoning, Section 654 -- DADT -- remained in effect, writing, "During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality. It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises."
And, as has been seen, DADT does remain in effect, with administrative separation board hearings proceeding and discharges continuing under DADT. Although the emergency order states there only has been one DADT discharge since the passage of the repeal act, the Air Force has confirmed three discharges and one resignation related to 10 U.S.C. 654 in 2011.
In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for "a temporary administrative stay of the injunction" while considering the emergency motion. DOJ is asking for quick action on that request. "We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011," the lawyers wrote to the court.
The government's argument for reinstating the stay is the "real and immediate" "harm" that would result from the July 6 order. The government states, "The panel's order, which wrests authority for the transition [to open service] from the military and places it in the hands of a single district judge, gives no weight to Congress's judgments about the process that is needed to make this transition maximally effective. That step is particularly unjustified at this late stage of the process, in light of the enormous progress the military has made in the months since passage of the Repeal Act, and how close it is to a certification decision."
Additionally, DOJ -- referencing the other filing's discussion of whether DOJ continues to defend the constitutionality of the law -- argues, "the panel lifted the stay based in part on an apparent misunderstanding of the government's position regarding the constitutionality of § 654."
Finally, DOJ argues that the panel "misapprehended the significance for this case of the position the government has taken on the constitutionality of the Defense of Marriage Act, which, as the very filing the panel cited makes clear, presents very different issues from the question of military policy at issue here." In its brief, DOJ cites Rostker v. Goldberg -- the 1981 Supreme Court case allowing the government to maintain a male-only draft and, thus, discriminate on the basis of sex in the military setting in certain ways under certain circumstances.
In sum, the government argues that lifting the stay unjustifiably takes the authority for repealing DADT away from the executive branch and it does so, at least in part, because of confusion by the Ninth Circuit panel regarding the DOJ's view of whether DADT is constitutional after the passage of the repeal act and regarding the application of the DOJ's DOMA decisions to military laws like DADT.
LCR executive director R. Clarke Cooper called today's move "shameful" and said in a statement, "Let me be clear -- the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers' constitutional rights."
One of the plaintiffs in the lawsuit, Servicemembers United executive director Alex Nicholson, said in a statement provided to Metro Weekly, "The Administration's response to this latest development in the Log Cabin Republicans lawsuit is unfathomable and confusing. 'Don't Ask, Don't Tell' should be completely dead by now."
He continued, pointing to the certification process required by the president, defense secretary and chairman of the Joint Chiefs of Staff under the repeal act, writing, "Certification of legislative repeal has now been dragged out beyond a reasonable time frame, so the court stepped back in to get the job done. The President should just let this law die."
[Photo: Major General Hummer (Photo from United States Marine Corps website.)]
[This post was updated through 10:20 p.m.]