Government attorneys asked the U.S. Supreme Court Wednesday to allow continued enforcement of the military's "don't ask, don't tell" policy as they appeal a lawsuit brought by the Log Cabin Republicans.
Last week a three-judge panel with the U.S. court of appeals for the ninth circuit overturned a permanent injunction on DADT -- one issued by U.S. district judge Virginia A. Phillips, who in September struck down "don't ask, don't tell" as unconstitutional. The panel ruled that the government had shown that an abrupt end to DADT could result in "precipitous injury" to the armed forces.
Acting solicitor general Neal Katyal revisited that argument in a 29-page filing, five days after the Log Cabin Republicans appealed the ninth circuit's decision directly to U.S. Supreme Court Justice Anthony Kennedy, who could make a decision about the request on his own or refer it to the entire court.
Katyal wrote that precedent requires the ninth circuit ruling to stand barring "exceptional circumstances." To that end, he argued that allowing DADT to remain in effect "simply preserves the status quo" of a law "governing military affairs that has been in force for 17 years."
Katyal further wrote that Phillips had exceeded her authority as a district judge in issuing a worldwide injunction against "don't ask, don't tell" -- an argument that Justice Department attorneys had also made during pretrial hearings in the case, and one that Phillips rejected.
"The sweeping nature of the injunction constitutes an extraordinary and unwarranted intrusion into internal military affairs," Katyal wrote. "It was entirely appropriate for the court of appeals to defer to the considered judgment of senior military leaders that any change in policy must be done in an orderly and careful manner in order to be successful."
But Log Cabin attorneys have argued that Phillips's injunction should stand pending appeal in the case, calling the ninth circuit decision "arbitrary and an abuse of discretion."
If the Supreme Court sides with the Log Cabin Republicans -- a long shot by most estimations -- the stay that had been placed by the ninth circuit would be vacated and Phillips's injunction would be reinstated. Erwin Chemerinsky, founding dean of the University of California, Irvine, School of Law, was skeptical of such a scenario. "The strong tendency will be to keep the status quo until there is appellate review," he said.
Richard Socarides, a New York lawyer and former LGBT adviser to President Bill Clinton, agreed that it would be unusual for the court to grant Log Cabin's request, but he also said the case was "unique" and "very hard to predict."
"The Log Cabin lawyers have a made some very persuasive arguments," Socarides said.
One of the points Log Cabin attorneys made is that the appellate court failed to apply the correct standard when rendering its opinion -- a standard that required the ninth circuit to demonstrate that the government is likely to succeed at the end of the case, Socarides explained.
"In order to change the district court ruling, the ninth circuit must find a likelihood -- not a 50-50 chance, not maybe -- but a likelihood that the government will ultimately prevail," Socarides said. "And I think most objective observers would look at this and say, that is next to impossible to find."
Nonetheless, Socarides added, "You can never predict. It's the beauty of the Supreme Court -- there's no appeal."
In a Wednesday statement, Log Cabin executive director R. Clarke Cooper
criticized the Obama administration for failing to expend political
capital in pushing for legislative repeal of "don't ask, don't tell" in
the upcoming congressional lame-duck session -- capital that several
Capitol Hill insiders say the White House does not have following the
"This week Log Cabin Republicans have
conducted meetings with numerous Republican senators potentially in
favor of repeal, all of whom are waiting for the president's call,"
Cooper said. "The White House has been missing in action on Capitol
Hill, undermining efforts to repeal don't ask, don't tell' in the final
session of this Congress, potentially leaving the judiciary as the only
solution for our brave men and women in uniform."
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