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This Week in DADT

This Week in DADT


This week the war over "don't ask, don't tell," one waged in all branches of the U.S. government, reached a fever pitch. A federal court judge stood firm on her injunction barring enforcement of the 17-year-policy, only to have that ruling overturned, at least temporarily, by a higher court. Pentagon officials scrambled to issue new directives for gay service members and military recruiters. Gays discharged under DADT sought reinstatement, while presidential advisers appeared on cable news shows in attempt to affirm the White House's support for closing a discriminatory chapter in the history of the country's armed forces.

If your head is spinning, you're not alone. Here's our crib sheet for the week's developments:

Earlier this week, a federal judge rejected the Obama administration's request to continue enforcing "don't ask, don't tell" while the Justice Department appeals the decision in a lawsuit won by the Log Cabin Republicans. What happened?

Once U.S. district judge Virginia A. Phillips denied the government's request to block her earlier ruling on the policy, the Justice Department appealed to the U.S. court of appeals for the ninth circuit for an "emergency stay." A three-judge panel granted that stay on Wednesday while it further reviewed the case. "Don't ask, don't tell" is now technically still the law of the land.

Attorneys for the Log Cabin Republicans, which originally filed this lawsuit challenging DADT in 2004, have been instructed by the court to file its opposition to the temporary stay by Monday.

Is the Justice Department required to appeal this case?

No, the Justice Department is not required to defend a law if it is deemed to be unconstitutional. President Obama has the authority to declare it unconstitutional and instruct his Justice Department not to defend the law. Doing so would not remove the law from the books, however: It would simply render DADT unenforceable based on the injunction. Some legal scholars wonder whether a future president could ask the courts to review the case again at a later date.

The government could also take the unusual but not unprecedented tack of defending the statute while presenting its view that the law is unconstitutional, thereby leaving the final decision on the matter to the courts. This strategy was advocated in a Thursday New York Timesop-ed by Walter Dellinger, head of the Justice Department's Office of Legal Counsel from 1993 to 1996.

But the Palm Center, a think tank at the University of California, Santa Barbara, that commissions research on gender and sexuality issues in the military, called Dellinger's reasoning "partial" and "misleading."

"The most likely consequence of following the Dellinger option is years of delay without any significant benefit," Palm Center legal codirector Diane Mazur wrote Friday.

Has the ninth circuit's order allowed for indefinite enforcement of "don't ask, don't tell?"

No. The ninth circuit is expected to issue another ruling as early as next week that either reinstates Judge Phillips's injunction or grants a more permanent stay pending appeal in the case.

The back-and-forth regarding a stay is somewhat reminiscent of another high-profile gay rights case: the federal suit against California's Proposition 8. U.S. district judge Vaughn R. Walker denied proponents of the antigay ballot measure a stay of his August decision striking down Prop. 8 as unconstitutional, ruling that they had not proved why allowing gay couples to marry would pose irreparable harm. But the ninth circuit subsequently granted a stay of Walker's decision, though it also allowed for expedited arguments in the appeal, now scheduled for December 6.

Has the Pentagon stopped discharge proceedings under DADT?

The Pentagon halted discharges during the eight days between when Judge Phillips ordered the injunction and the ninth circuit granted the stay. Technically, at this moment, the military can initiate investigations and discharge service members. However, Defense secretary Robert Gates issued new regulations Thursday stipulating that all discharges must be "personally approved" by a secretary of one of the three departments -- the Army, Navy, and Air Force -- meaning only three people have the authority to officially sign off on a discharge.

This week a Pentagon spokeswoman said that military recruiters have been instructed to allow gay applicants for military service. Are they still doing so?

At the time of this post, the Pentagon was still processing gay applicants and had not reversed course on guidance given to recruiters Monday, though a senior Defense Department official said Thursday that he expected that new orders would be coming soon.

What's the next step in the lawsuit filed by the Log Cabin Republicans against DADT?

Attorneys representing the gay Republican group are expected to file an opposition to the ninth circuit's temporary stay on Monday. In an October 18 court hearing before Judge Phillips, Log Cabin lead attorney Dan Woods argued that the government has had ample time to prepare for an injunction on DADT in the six years since the case was filed. Any "enormous consequences" -- as Gates warned regarding an abrupt demise of the policy -- remain unfulfilled, he said.

"During those six years, the government has deprived brave, patriotic Americans of their constitutional rights," Woods told the court. "[It] now wants to continue to deprive Americans of their constitutional rights. ... The court cannot and should not do that."

The House of Representatives has already voted to repeal "don't ask, don't tell." The Senate has yet to do so. Is there any hope that it will be repealed during the lame duck session?

The chances of the defense authorization bill to which the repeal measure is attached making it to the president's desk during the lame duck session are extremely slim at this point. It is highly unlikely that a vote would take place before the Pentagon Working Group study on DADT is released December 1, which leaves less than a month to take the Senate vote, reconcile the House and Senate versions of the bill, then pass that bill through both chambers for another vote. Additionally, senators may not be able to rustle up the 60 votes to overcome a Republican filibuster.

Why bother with legislative repeal when a judge has already ruled that the law is unconstitutional?

President Obama and the Pentagon leadership have consistently said they prefer legislative repeal over letting the issue be settled in the courts. Pentagon leaders, in particular, believe the legislative route will give them more control over how and when implementation of repeal takes place.

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