What The DADT Injunction Really Means: Something, or Nothing, Time Will Tell

We’ve now been living in a “don’t ask, don’t tell”-free world for more than 48 hours. Doesn’t the air smell cleaner and the world seem brighter? Breathe deeply and enjoy it. It might not last. Less than three days after Judge Virginia Phillips issued a permanent injunction requiring the military to stop enforcing DADT, the Justice Department has filed a request for a stay of the injunction and a notice of appeal.

What does this mean? It’s too early to say.

With the stay, the Justice Department is essentially asking that we back the calendar up to Oct. 11 and keep it there for a while. The issue is currently pending before Judge Phillips as a procedural matter, but she is expected to deny the request. Presuming that she does, the government will request that the Ninth Circuit consider the same issue.

At that point, three judges from the Ninth Circuit will be appointed to review the request. The Ninth Circuit is generally considered to be one of the most liberal jurisdictions — but when you select three judges out of the available 26, anything can happen. Once the panel makes a decision about whether or not we can return to Oct. 11, the losing party can appeal to the Supreme Court.

Until a court grants a stay of the injunction, the injunction remains in effect. The military must stop all DADT proceedings. However, this could change at just about any moment. Unfortunately, because so many things could happen and because of the uncertainty surrounding the case, Judge Phillpips’ unequivocal ruling is not nearly as liberating as we might hope for those it most directly affects: service members.

The Service Members Legal Defense Network has issued an alert making it clear that no one should be leaping out of the closet just yet. Despite the clear judicial decree that all investigations and proceedings to discharge service members under DADT are to end immediately, lesbian, gay and bisexual service members remain vulnerable.

It is still unclear what effect the injunction will have in a practical sense. Yesterday, former sailor Omar Lopez attempted to re-enlist in the Navy; he was honorably discharged in 2006 under DADT, and now that the policy has been deemed unconstitutional he would like to return. At the recruiting office he was promptly turned away; the recruiters had no knowledge of any change to military policy.

However, in a promising development, Lieutenant General Richard C. Harding, Judge Advocate General for the Air Force, sent Air Force JAG officers an email today indicating that until the Justice Department takes action, the Department of Defense will abide by the district court injunction and immediately cease all proceedings related to DADT. Hopefully similar memos are en route to JAG officers throughout all branches of the military. Ultimately though, any such measures would be immediately reversed in the event that the Ninth Circuit were to grant the stay and agree to return to Oct. 11.

Over and over, Obama has reassured us that he doesn’t support DADT and that he wants to repeal the law as much as anyone else. When the Department of Justice initially requested that Judge Phillips postpone her injunction of DADT, Press Secretary Robert Gibbs promised that this action “in no way diminishes the president’s firm commitment to achieve a legislative repeal of DADT.” The DOJ would like us to believe that its opposition is merely situational and that it is legally obligated to defend any law that is crafted and passed by Congress. (NOTE: This is a lie).

Can we believe anyone anymore?

I want to have faith. I want to trust that Obama wants the repeal to come through Congress for strategic reasons — not because it is politically more convenient, but because it will help to secure the support of those actually tasked with implementation. If Congress repeals the law, it arguably indicates broader support for the change than the decree of a single brave judicial voice, and perhaps this will help get everyone in the military on board.

Unfortunately, my faith is crumbling with each political victory we lose and each judicial victory Obama’s administration challenges. Obama’s recent promise via Twitter that DADT will end on his watch is of little consolation to those who would like to serve openly today.  I hope that someday I can reflect back on the impending appeal and recognize its wisdom, but right now it just feels like one more attack from someone who once promised to do better.p

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24 Comments

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    You know that scene in Harry Potter and the Goblet of Fire where Ron and Harry won’t stop talking so Snape is just like *FUUUUUUCK THIS* and shoves their heads down? I want us to be Snape and Harry and Ron to be DADT Supporters and the legal hangups that keep making a repeal so damn difficult, only instead of just pushing them into good behavior, I want to bash their heads together until they shut up.

    And then I kinda want Mad-Eye Moody to turn the Republican Congressmen/women into ferrets so we can actually get something done.

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    Really, I can’t say I expected any differently. Obama was a wild card in 2008 (I voted against McCain as much as for Obama). Right now that wild card is looking consistently like a two of hearts instead of an ace of spades.

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    Isn’t it smarter to let Congress repeal this law, because then later on when we have another conservative president/congress, they’ll actually have to pass another law in order to reinstate this crazy policy, which hopefully wouldn’t happen.
    If DADT can be stopped by a single judge’s injunction, why can’t it be started up again the same way?

    Maybe I don’t know what I’m talking about though. I hate that this is a thing we have to talk about.

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      The problem with waiting for Congress to do it is that you have to trust that Congress will do it. I’m not feeling very trusting these days.

      DADT can be stopped by a single judge’s injunction because unconstitutional laws cannot stand and there is a limited time for appeal (60 days).

      If Obama decided not to appeal today, the injunction will remain in place and this would be over. The military would be forced to stop discharging soldiers under Don’t Ask, Don’t Tell, in accordance with the injunction. Because of the time limit for appeal, the next President wouldn’t be able to simply pick up where Obama left off. Congress would have to pass a new law (and the new law would have to be constitutional).

      As a practical matter, this isn’t the sort of thing that could be picked up again. If lesbian, gay and bisexual soldiers were truly free to come out for any length of time, there wouldn’t be a way to take it back. The proverbial cat would be out of the bag. (Now doesn’t count, because despite the injunction, service members have been strongly encouraged not to come out).

      But instead, Obama has chosen to appeal. So the fight continues.

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      A practical example – the repeal of anti-miscegenation and anti-racial integration laws in the 60s was done through the courts, not the legislature. They both still stand.

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      Says Obama: “This policy will end, and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there.”

      You mean laws like, say, the Constitution? I’m a fan of that one.

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      Me too. I’m so done with Obama. Would things have been any different if Hillary had been in there? Tough to say. I do know Hillary is a fighter, as I grew up in Arkansas when she and Bill were there, and I’m familiar with her work as a Senator. I think it would have been different. But here it gets to be one of those games of “coulda, shoulda, woulda”.

      Obama is playing politics. Obama is thinking about placating a group of people, and they’re not the GLBT/allies/equal rights people. He’s trying to play an even field on a moderate ground, or at least seem that way to certain political groups, but in doing so he’s sacrificing an entire group of people. I just shudder when I think of how the nation would react if the rights of, say, African Americans or women were up, instead of the rights of gays and lesbians, and any president tossed them under a bus to play politics, they would catch hell. This is the 21st century and people know by now that 2nd class citizenship is an idea that should have died out a long time ago and in some third-world country. Not in the great, freedom-fighting US of A.

      Obama has us over a barrel and he knows it. Who we gonna vote for otherwise in 2012? Glen Beck? McCain? Palin? Holy mother of cheese. Those are the options? Hillary probs won’t run, although I’ve seen now that Biden may be out and Hillary may be in his place. More politics-playing! Biden is a ninny, but he’s not your problem, Mr. Pres…

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    This is such bullshit. I’m on leave right not but I bet the people at my unit are talking so much shit about gay people right now. If they even know anything about it.
    I just can’t wait for the day when I can be free to be myself at work, without the fear of losing my just because of the discrimination we all face in America. Isn’t this supposed to be the land of the “free”, home of the “brave”. If we were so free, we wouldn’t have to hide the biggest part of our selves just so those that spread hate wouldn’t feel uncomfortable. And if we were so brave, wouldn’t we have someone stand up for us that has the power, and let us be free? and yes rrrrrrrrrrrredhead (was that enough r’s? :)) I AM ANGRY. this has gone on for too long. And oh, I wanted to vote for McCain (I knew nothing of politics forgive me please) just because he came to my high school to dedicate our new football stadium to a marine from our school that had died. I thought it would be cool to say I met the president. So glad he failed.

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    Troubling thought – even if everything goes perfectly and DADT never gives anyone any more trouble, sodomy is still illegal and does not fall under an “honorable discharge” =/

    Sometimes it doesn’t seem like there’s any end to the homophobia =(

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    “If Congress repeals the law, it arguably indicates broader support for the change than the decree of a single brave judicial voice, and perhaps this will help get everyone in the military on board.”

    I know you’re just trying to explain what might be Obama’s reasoning besides simple political convenience, so please don’t take this as a criticism of your words but rather of the administration using this argument.

    WHAT?! Military policy isn’t democratic. It’s a chain of command and every soldier, sailor and marine is extensively trained to follow orders. We shouldn’t have to ask Congress to help convince soldiers that the equality guaranteed in the Constitution that they are sworn to support and defend is important. An order from the President, the commander of the armed forces, should be enough. Leadership needs to come from the top.

    Of course it won’t be easy. Women service still face harassment and worse from fellow soldiers, but the solution isn’t to stop allowing female soldiers. The solution is enforcing standards of conduct to show respect for all soldiers. All the current policy does is leave gay soldiers no open means of addressing harassment without risking losing their jobs.

    Saying the average soldier can’t deal with openly gay soldiers shows the same lack of faith in our military as it did when they said that racial integrating and allowing women to serve would be detrimental to moral. Is it that much easier to train someone to kill than it is to train someone to work alongside someone who is different? (Don’t answer that.)

    I’m 100% convinced Obama’s concern here is entirely political. And I’m pissed.

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      I agree 112 percent. When you’re in the military, you don’t have to support the orders you’re given, but you do have to follow them. It’s part of the deal.

      That said, if you have any interest in reading more about why it’s maybe a good idea that the Justice Department is continuing to pursue this litigation, I’d recommend reading Chris Geidner’s post, Equality and the Rule of Law.

      He persuasively argues that we don’t want to set a precedent allowing the Justice Department to selectively defend laws just because they don’t mesh with the views of the existing administration. It doesn’t really make the ongoing support of DADT any easier to accept, but it does provide an alternate explanation for Obama’s actions.

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        Yes, I agree that there are reasons for O.’s actions, here, but I think they still indicate that O. is a tool. As the Geidner dude concedes, the DOJ doesn’t always support existent law. This would be an excellent opportunity for O. to show that the executive has a role as an interpreter of the Constitution — this isn’t only Congress’s role, as O. seems to suggest in LGBT issues (but not re: all issues, like national security, oh how so convenient to pass off the hot topic of LGBT issues to Congress).
        That people think that Obama doesn’t have an option here, I think, is the most unfortunate thing. That’s what Obama wants you to think, but it’s not true at all.

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        When I don’t get to write about these things, I run around telling my very straight non-attorney friends about all of the terrible things happening in the legal world, and they graciously pretend to care. When I instead get to channel those frustrations into articles, it works better for everyone. Which is to say, thanks for letting me contribute.

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