DOJ to Judge: Keep Enforcing DADT

The Department of Justice asked a federal judge Thursday to continue enforcing the military's ban on gay and lesbian service members, despite a ruling earlier this month that struck down "don't ask, don't tell" as unconstitutional.

In a 14-page filing, Justice Department attorneys argued that an immediate, permanent injunction against enforcing the law --one supported by Log Cabin Republicans, which successfully challenged DADT in court and has argued for a halt to all discharges of gay service members -- would be "untenable." (A PDF of the government's brief is here.)

"Because any injunction in this case must be limited to [Log Cabin Republicans] and the claims it asserts on behalf of its members - and cannot extend to non-parties - plaintiff's requested world-wide injunction of [DADT] fails as a threshold matter," assistant U.S. attorney Paul Freeborne wrote.

DADT repeal advocates and attorneys representing Log Cabin Republicans immediately slammed the Justice Department's filing. Dan Woods, lead attorney for the national gay Republican group, called the arguments "ridiculous" and said his team would file a response as soon as Friday.

"It's our view that the objections fail to recognize the implications of the government's defeat at this trial," Woods told The Advocate. "This case was never limited to only Log Cabin members. And the request for a stay ignores the harm that would be suffered by current and potential service members during a period of the stay."

In a late Thursday statement, White House press secretary Robert Gibbs said the filing "in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT -- indeed, it clearly shows why Congress must act to end this misguided policy."

But Servicemembers United executive director Alex Nicholson, the only named plaintiff in the lawsuit, said the Obama administration "had a choice to take several different routes [with the injunction], from the moderate and reasonable to the extremely ridiculous. It appears that they decided to go with the latter end of the spectrum."

Nicholson said the DOJ's filing further erodes faith in the administration for many gays and lesbians seeking substantive change. "Lately a lot of us were holding out hope that there would be a semi-reasonable response to this judicial victory. It appears that [Obama] might be disappointing us yet again," he said.

The Justice Department's arguments against an injunction come two days after legislative repeal of DADT was blocked in the Senate due to a Republican filibuster of the defense authorization bill, of which a repeal on the ban against openly gay service members is a component.

In Log Cabin Republicans v. United States of America, U.S. district judge Virginia A. Phillips ruled earlier this month that the DADT statute, passed by Congress in 1993, violates free speech and due process rights of gay service members. She also ruled that LCR is entitled to a permanent injunction against DADT and gave Justice Department attorneys until Thursday to object to Log Cabin's proposed judgment in the case.

The Justice Department has argued that Phillips does not have the authority to issue a sweeping injunction against the ban on openly gay service members (Phillips rejected that argument in a February court hearing).

"[DOJ] has ignored all the law about deference to the military. [Judge Phillips] said before that deference does not mean abdication when constitutional rights are involved," Woods said.

The Justice Department has not yet filed an appeal in the case.

Among the government's arguments in Thursday's filing, Freeborne wrote that an injunction would preclude the government from litigating other legal challenges to DADT, as well as prevent it from considering the terms of a stay banning discharges of gay soldiers. An immediate halt of discharges, he argued, would jeopardize successful implementation of repeal by interfering with the "ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy."

"Contrary to [LCR's] repeated suggestions that the Court can simply order the immediate cessation of DADT without any disruption of the military's operations," Freeborne wrote, "the Secretary of Defense has stated that, to be successful in implementing a change to the DADT law and policy, the Department of Defense must 'understand all issues and potential impacts associated with repeal of the law and how to manage implementation in a way that minimizes disruption to a force engaged in combat operations and other demanding military activities around the globe.'"

Woods criticized that argument as a been-there, done-that tactic. "It's the same argument they made before the trial. 'Let us have time to study it. Congress is considering repealing it.' Judge Phillips has rejected it before."