A Busy Day for Gay Rights – DADT, DOMA, and the Florida DCF

This has been a very busy day on the gay rights legal front, with three major developments in important pending cases:

1 – DADT.  Judge Virginia Phillips issued her final order in the pending challenge to the U.S. military don't ask, don't tell policy, under which gay people can only serve in the uniformed Armed Forces if they pretend that they are not gay by breathing not a word about being gay, doing nothing that could lead anybody to think they are gay, and lying if they are confronted with claims that they are gay.  Following up on her previously issued decision finding that the policy is ridiculous — oh well, not exactly, finding that it is unconstitutional — she issued the order that plaintiff Log Cabin Republicans had requested, an injunction against any further operation of the policy, anywhere.  She specifies that not only can't the military process any new folks for discharge under this policy, they must suspend all pending cases in which they are seeking to discharge anybody under the policy.  She also authorized LCR to apply for an award of attorneys fees and costs.  From the sound of her brief order, she is unlikely to be agreeable to any request by the Justice Department to stay this decision pending an appeal, since she explicitly found that the policy imposes an irreparable injury of constitutional dimensions.  If they want a stay, they'll have to apply to the 9th Circuit. 

The question of the day: Will the Obama Administration appeal this ruling?  Obama's public position is that DADT is a bad policy, counterproductive, and contrary to the national security interests of the U.S.  However, the official position of the Administration taken by the Justice Department is that the policy is not unconstitutional.  (These are not, at least legally speaking, contradictory positions.  A policy may be within Congress's power to enact yet be a bad policy.)  The House of Representatives voted earlier this year to repeal the statute mandating this policy, but Republican Senators imposed a successful filibuster on the repeal coming up for a vote in that chamber as a section of a Defense Authorization bill.  The Authorization Bill must be passed in order to keep our odiferous wars funded, but the Repubs won't vote for it as long as it includes this "poison pill," evidently.  The question is whether they might be more amenable after Nov. 2, or whether the cowardly Democratic Senate leadership will cave and give them a clean Authorization bill to vote up without the DADT repeal….  And if the Repubs achieve control of the Senate in the midterm, they might decide to stall on just about everything until they take charge in January….

But that's legislative politics.  What will the President and his A.G. do?  One strategy could be to comply with the injunction, on the ground that the President, while disagreeing that the policy is unconstitutional, agrees that it is counterproductive, and as commander in chief wants to be able to use the talents of lesbian and gay servicemembers to implement his war strategy.  A group of Senators sent him a letter urging this course, and commenting that an appeal to the 1st Circuit would give weak-hearted Senators an excuse to postpone voting on repeal.  Meanwhile, the due date for the Study Group report on DADT repeal from the Pentagon is December 1.  Even an expedited appeal, if sought by the DOJ, would not be heard before then in any event.  And there are some wavering Senators who have been saying that voting before the report is bad.  So why not just comply with the decision for now (which, according to the President's opinion of the policy, would be a GOOD THING for national security), wait for the report to come out, then push for a new vote in the lame duck Congress in December?  And it may even make sense to put this in a stand-alone bill, although that would require another vote in the House.

2.  DOMA – Today the DOJ filed an appeal of Judge Tauro's rulings on DOMA in the U.S. Court of Appeals for the 1st Circuit in Boston.  Tauro had ruled, in lawsuits brought by GLAD and Mass. A.G. Martha Coakley, that Section 3 of DOMA, which requires the federal government to treat as a nullity for purposes of federal law all same-sex marriages regardless that they were legally contracted under state law or the laws of other countries, violates the 5th Amendment's equal protection requirement and offends federalism as well.  DOJ waited the full time afforded them by court rules to file their appeals, arguing that the statute is constitutional.  Here's another law where Obama's position is that it is a bad law, bad policy, but it is constitutional.  (Additionally, of course, there is the fact that Obama's stated position is opposition to same-sex marriage in order to get elected, even though once upon a time he said in writing that he was for it – i.e., he was for it before he was against it – but on the other hand he's always been publicly opposed to DADT.) 

The politics of this is more complicated.  The public overwhelmingly supports repealing DADT, so it might be safe politically for Obama not to appeal the DADT ruling… although I suspect that very loud political voices on the right will go ballistic if he doesn't appeal.  But there is not such overwhelming public support for same-sex marriage, although there is substantial support in public opinion polls for domestic partnerships and civil unions (which Obama says he supports as well).  Not appealing this one would lack the same degree of political safety as not appeal DADT.  So this appeal was probably necessary, and it will be useful to have a ruling from the 1st Circuit affirming Judge Tauro, if that's what we get.  Ultimately, however, this one is a Supreme Court issue, and if we win it in the 1st Circuit, I can't imagine the Court would deny a cert petition from the government.

3.  Gay Adoptions in Florida.  Today, the state's Department of Children and Families, the named defendant in the Florida gay adoption case, announced it did not want to appeal the court of appeal's decision to the state Supreme Court.  The court of appeal ruled that the statutory ban on "homosexuals" adopting children violated the state constitution's equal protection guarantee.  The intermediate appellate court's ruling has statewide effect as a precedent binding on trial courts, but it is not binding on other appellate districts.  But it seems unlikely that the question would get to another intermediate appellate court, if the DCF is not going to appeal rulings granting adoption petitions by gay applicants.  But, this is not the final, final word until the attorney general, a conservative Republican who supports the ban, decides not to appeal.  I recall reading somewhere that he had stated he would be guided on this by the wishes of DCF, so perhaps he will quickly signify an intent not to appeal, which would put an end to the matter and the offensive provision.  One can hope…. to be in a position to congratulate the people of Florida on the removal from their laws of one of the few remaining explicitly anti-gay laws on the books of any state today.

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