According to an anonymous source in The Washington Blade, “The Obama administration is “’likely’ to appeal an injunction barring the enforcement of “Don’t Ask, Don’t Tell” to the U.S. Supreme Court.”
In other words, this source is saying, the Obama administration will probably ask the Supreme Court to allow DADT to be enforced until Congress’s repeal process is complete.
Remember how, way back when, in a case brought by the Log Cabin Republicans, “Judge Philips declared DADT unconstitutional”, and issued an injunction, prohibiting the enforcement of DADT? But then the Ninth Circuit issued a stay on Judge Philip’s injunction, allowing the Pentagon to continue to enforce DADT? And then Congress repealed DADT, but it was “taking forever”, and was “really confusing”, and then, finally, last week, “the Ninth lifted the stay, and once again the Pentagon was not allowed to enforce DADT”?
So now it appears quite possible that the DOJ is going to appeal this most recent injunction, with the goal of allowing the repeal process to resume, according to the plan Congress approved.
It’s an awful situation for the soldiers involved.
It’s also kind of weird, because, when the Ninth lifted the stay last week, they cited “a brief the DOJ filed arguing against the constitutionality of DOMA.” Maybe some of you read it?
So, you might be wondering, why would the DOJ appeal?
Well, the Obama administration spent all this time and effort crafting a deal whereby Congress would repeal DADT (mostly) on its own volition, and the Pentagon would be given (some) time and space to figure out its own approach to managing the repeal process. Many people might think that a Congress- and Pentagon-supported repeal of DADT has greater legitimacy than a court-ordered injunction, especially when the court ordering the injunction is not the Supreme Court, but the liberal Ninth Circuit, or some crazy U.S. judge way out in California (that is, Judge Philips).
Also, there is some evidence that the DOJ did not want their argument against the constitutionality of DOMA to be applied to DADT. One legal scholar has pointed out a footnote in the DOJ’s brief against DOMA saying “[c]lassifications in the military context . . . present different questions from classifications in the civilian context.” Since the DOJ’s argument against DOMA was based on the claim that sexual orientation is a suspect classification, the brief’s attempt to distinguish between military and civilian classification contexts could be interpreted as an attempt to exclude DADT from the Equal Protection argument the DOJ mounted against DOMA.
We should hear whether or not the DOJ will appeal the injunction against DADT soon because on Monday, the Ninth Circuit ordered the DOJ to make its decision within the next ten days.
What do you all think? Do you think the DOJ will appeal? Are you concerned about the appearance of “activist courts”? Or do you think the involvement of the judiciary is necessary and important?