By Kerry Eleveld
Originally published on Advocate.com October 14 2010 2:25 PM ET
The Department of Justice requested a stay Thursday of a federal judge's order barring further enforcement of "don't ask, don't tell."
The government has also appealed U.S. district judge Virginia A. Phillips's September decision striking down DADT as unconstitutional to a federal appeals court. That appeal was filed to the court shortly after the Justice Department opposed the injunction against the 17-year-old law banning openly gay service members in the military.
Should Phillips deny the Justice Department's request for a stay of her order, government attorneys will file an emergency request to the U.S. court of appeals for the ninth circuit.
“At a minimum, this case raises serious legal questions, and without the entry of an order immediately staying the application of this Court’s judgment, defendants will be irreparably harmed before they can appeal this Court’s decision to the Ninth Circuit,” assistant U.S. attorney Paul G. Freeborne wrote.
Justice Department spokeswoman Tracy Schmaler said in a statement that while the Obama administration supports repeal of DADT, "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."
Few were surprised by Thursday's rapid-fire news, least of all the leadership of the Log Cabin Republicans, which will oppose a stay of Phillips's injunction.
“After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend ‘don’t ask, don’t tell,’” said Christian Berle, deputy executive director of the organization. “Log Cabin Republicans will continue to advocate on behalf of the American service members who every day sacrifice in defense of our nation and our Constitution.”
But Richard Socarides, a New York lawyer and former LGBT adviser to President Bill Clinton, said getting the stay on the suspension of discharges was not guaranteed and that if the court of appeals failed to grant it, the Justice Department would have to appeal to the U.S. Supreme Court.
In order to get the stay, Socarides said the government would have to prove it would suffer serious, irreversible damage if it were denied.
“It’s considered an extreme remedy,” Socarides said. “Just coming in and saying that it would be better to do it in a more orderly fashion isn’t enough.”
Socarides explained that DOJ was also in a tricky situation given the president’s position that he believes gays and lesbians should ultimately be able to serve openly in the military.
“They have severe political restrictions on what they can say,” Socarides said, noting that the Justice Department cannot argue, for instance, that allowing gays to serve openly would be harmful to the military. “They’re now in difficult position of having to articulate a position as to why, on an emergency basis, an order that is wholly consistent the president’s position should be denied.”
During a briefing with reporters Wednesday morning, White House press secretary reiterated the president’s belief that the law is “unjust” and “detrimental to our national security” but also reinforced his preference for ending the policy legislatively.
“The president has implemented a process with the Department of Defense, with the secretary of Defense, with Admiral [Michael] Mullen and the other members of the Joint Chiefs to move forward in implementing an end to this policy in an orderly way,” Gibbs said. “The best way to end it is for the Senate to follow the lead of the House of Representatives so that that end can be implemented in a fashion that’s consistent with our obligations in fighting two wars.”
But the political pressure continues to mount on the White House even as its course appears to be resolute.
During a phone call with progressive bloggers Wednesday, House speaker Nancy Pelosi said she would prefer the administration let the ruling stand.
“I hope, I haven’t really heard officially that the administration is going to appeal this, but in any event, I hope they don’t,” Pelosi said in reply to a question from AmericaBlog’s John Aravosis. “I myself have always wanted a moratorium on any discharges.”