The Justice Department’s “Emergency Motion” to Reimpose the Stay on the DADT Injunction

Consider this chronology:

July 6, 2011.  9th Circuit panel issues an Order lifting the stay and allowing the injunction against enforcement of the "don't ask, don't tell" military policy to go into effect.  The injunction was issued late last summer by US District Judge Virginia Phillips in Log Cabin Republicans v. US, upon her finding that the DADT policy was unconstitutional.  The Justice Department (DOJ) sought a stay of the injunction while the government appealed the ruling.  A 9th Circuit panel issued the stay, based on the general proposition that laws are presumed to be constitutional and injunctions against their enforcement should generally be stayed while appeals are pending.  Nobody in the process last summer/fall seems to pay any attention to the FACT that while the injunction was in effect for more than a week nothing bad happened….

July 7, 2011.  The Pentagon announces that it will comply with the re-imposed injunction, notifying field commanders and recruiters that DADT is no longer in effect.

July 11, 2011.  The 9th Circuit panel directs a question to the parties: Does the government plan to defend the DADT policy in the upcoming oral argument of its appeal, or is it going to do what it has done in the pending DOMA cases – abandon the defense on constitutional grounds?  (This question naturally occurs because DOJ filed a brief on July 1 in a pending DOMA case arguing that DOMA is unconstitutional.) If DOJ is  going to abandon the defense of DADT, does it plan to notify Congress as required by statute, so that Congress can intervene, and if so, will more time be needed before oral argument can take place?  Eminently practical questions.  The court also asked both parties whether it should dismiss the case as moot, either right away or when certification under the DADT Repeal Act takes place, since the relief sought by Log Cabin Republicans has been obtained with the end of the policy?   That is, is there any need for the 9th Circuit to take on the question of DADT's constitutionality if the whole thing is being resolved politically and is, according to the President, on the verge of ending through imminent certification under the Repeal Act?

July 14, 2011.  DOJ files an "Emergency Motion" to reimpose the stay and begs for a temporary stay while the 9th Circuit considers their motion.  What is the "emergency"?  The "emergency," apparently, is totally political.  If DOJ doesn't file this motion, it riles up the gay-haters in Congress who are looking for any excuse to try to reimpose DADT.  Those in the Republican majority in the House keep attaching amendments to a pending Defense Appropriations Bill to try to slow down or stop implementation of the Repeal Act, to placate the gay-haters among their political base.  The "emergency" clearly has nothing to do with the merits – i.e., DOJ does not cite any evidence that in the week since the stay was lifted there has been an outbreak of disruption, collapse of morale and unit cohesion, epidemic of gay-bashing, drasting drop in enlistments, etc.  In other words, THERE IS NO EMERGENCY RELEVANT TO ANY OF THE GROUNDS ORIGINALLY CITED BY CONGRESS TO JUSTIFY ADOPTING THE DADT POLICY.  DOJ attaches a declaration by the general who is in charge of the implementation team.  His explanation for why there is an emergency?  Sounds to me like it boils down to resentment by the military against civilians, especially if the civilians happen to be federal judges ordering them to comply with the Constitution.  Gen. Hummer argues that ending DADT will go more smoothly if officers can be led to believe that the decision is being made by military leaders based on military judgment, rather than by judges based on fidelity to the constitutional rights of Americans.  It's another way of saying that the military should get to decide when and how it complies with the law, regardless of what judges might have to say.

The response of the 9th Circuit panel?

July 15, 2011.  The 9th Circuit panel agrees to a temporary stay BUT only partially.  It leaves in place the part of the injunction against investigating, punishing or discharging people under the policy.  So what's left is mainly symbolic – which is probably as it should be, because the emergency is SPURIOUS and the panel also demands an explanation about why all kinds of stuff that was presented on July 14 was NOT presented when DOJ filed its opposition to Log Cabin's motion to lift the stay several months ago.  This is one ticked-off appellate panel.  They set a swift briefing schedule on the motion and announce that oral argument on the merits will be held September 1.

To the Obama Administration: Wake Up!  Get some backbone here!  Stop pandering to the gay haters in Congress and the Tea Party, they are NOT your constituency and they don't speak for a majority of American voters. The Pentagon's instincts expressed on July 7 were correct: comply with the injunction, end the policy, abandon the charade, get on with it.  All of our closest military allies abandoned their anti-gay military personnel policies long ago; we fight alongside them in Iraq and Afghanistan with openly gay troops on their side and closeted gay troops on our side.  What's going on here?

2 thoughts on “The Justice Department’s “Emergency Motion” to Reimpose the Stay on the DADT Injunction

  1. This whole messy repeal process leaves me with more questions than answers.
    Has the Pentagon released the proposed implementing regulations? How will discrimination claims based on sexual orientation be handled? Will individuals who were discharged under DADT be allowed to rejoin? Can they be made whole if they are now too old to rejoin? What if they had to pay back scholarship money? Can they regain access to their veteran benefits, for example immigration benefits if they were a non-U.S. citizen?
    Since the government thinks that DOMA cannot survive heightened scruntiny, how will they treat the married partners of LGB servicemembers? Suppose a gay servicemember is killed in combat. At the burial ceremony, will the service flag be handed to the same-sex married spouse of the deceased servicemember? Or would that violate DOMA?

  2. Most of these questions don’t have answers yet, or at least not that I know about. I haven’t seen any new regs being circulated. My understanding was that the Pentagon decided that their response to the repeal of DADT was for everything to be “sexual orientation neutral.” That is, they were not planning to add sexual orientation to their non-discrimination policies or make any visible affirmative steps towards accommodating any special needs that might be presented by LGB personnel. I would hope that would change as they gain experience.
    The one guy who was actually discharged at his own request said he requested discharge because he feared that it would be difficult to survive as openly gay in a military that lacked a non-discrimination policy.
    As to the DOMA related stuff, remember that the Administration’s position is that DOMA Sec. 3 is unconstitutional, and they filed a brief in the Golinski case saying so, but that they are bound to continue enforcing it until it is repealed or struck down. That is, the executive does not get to pick and choose among which laws they will enforce, although they can exercise discretion to target resources. Thus, for example, as a matter of discretion now the US Trustee is going to stop filing motions to dismiss when married same-sex couples file bankruptcy petitions, given the new disposition of bankruptcy judges to deny such motions. And it looks like they are going to ease off on deportation of same-sex spouses who are foreign nationals without necessary documentation to be in the US, as a matter of resource allocation. (Given the number of undocumented aliens in the US, and the limited staff and funding for immigration enforcement, they will use their discretion to target enforcement on those with serious criminal records.)
    As to how this will play out in an officially “sexual orientation neutral” military, we can’t really know until it happens. I don’t think it would violate DOMA for the Defense Department to recognize a same-sex partner or spouse as “next of kin,” for example, for purposes of notification of problems, acknowledgement at funerals, etc. The Obama Administration has been taking the position regarding federal employees that they will recognize partners for non-economic benefits.

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