Log Cabin Counters DOJ

The legal jockeying continued Friday in the case of Log Cabin Republicans v. U.S.A. when the lawyers for Log Cabin filed a response to the government's request earlier this week that the "don't ask, don't tell" policy be kept in place pending appeal.

"We have sought and received permission from the U.S. Supreme Court to file this reply because the government's opposition ignores critical points presented in our application to vacate the stay of the ninth circuit court of appeals," said Dan Woods, White & Case partner who is representing Log Cabin Republicans.

Last week, Log Cabin lawyers took the unusual step of appealing to Justice Anthony Kennedy to lift a ninth circuit court ruling that placed a stay on a worldwide injunction on the policy originally ordered by federal district court judge Virginia Phillips in September. Justice Kennedy can either make an individual ruling on the request or refer it to the entire Supreme Court.

Government lawyers filed their response to that appeal Wednesday, but Woods has now gone the extra step of countering the filing from the U.S. Department of Justice.

Woods said he requested the opportunity to reply because he felt the government's argument had failed on several key points: It did not address the fact that legislative repeal of the law is still "speculative," it does not properly consider the "hardships to current and prospective servicemembers" if enforcement of DADT continues, and it "exaggerates" what the district court's injunction does and does not require.

In the conclusion of the filing, Log Cabin lawyers wrote, "The district court's judgment and permanent injunction followed a full trial on the merits of the important constitutional issues raised by this case, but the court of appeals' order staying the enforcement of that judgment did not take into account the speculative nature of repeal -- the premise of the government's entire argument -- and did not take into account the harms that would be suffered by current and prospective members of the armed forces while a stay is in place. The court of appeals failed to analyze the stay application in light of the governing law and the record before it in this case."