DoJ Likely to Appeal DADT Injunction, Isn’t That Fun?!

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 And then Congress repealed DADT, but it was “taking forever”, and was “really confusing”, and then, finally, last week, “the Ninth lifted the stay, and once again the Pentagon was not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.

via Lucy Ravich

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?

Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?

Join AF+!


Grace has written 2 articles for us.


  1. ARGH too many acronyms I just can’t

    I have conflicted feelings about this whole DADT nonsense, of course it should be repealed asap, but also I don’t understand why anyone would want to join the military anyway. #toomanyfeelings

    • -“to uphold and defend the constitution of the united states of america against all enemies, foreign and domestic”

      -to have a family

      -to go to college

      -to learn and gain tools in order to be better able to care for people

      -so that, maybe, someday, someone else won’t have to

      i can see why you might not want to, and, in fact, there are times when i envy you (i’m really not so keen on killing…at all). we’re not all cold and heartless, though, i promise!

      • how does serving in the military allow you to have a family? As of now if you’re queer it seems to be the opposite.
        I’m not trying to start sh*t I really want to know your train of thought.

        • coming from a family who didn’t give a shit about me, i joined the army looking to be part of a larger “family,” of sorts.

          the other soldiers all go through the same training, live together, eat together, learn to take care of each other. i didn’t join thinking about starting my own family – i never wanted one because of how poorly i was treated. i just wanted to be part of something where we all could count on each other.

          i never really thought about dadt until i realized, heyyyy this applies to me and it really sucks. however, those soldiers, the family i’ve sort of built from the shared experiences, mostly care very little about whom i date or whatever…they just want to know if something happens to them, will i have their backs, and if something happens to me, i know they have mine.

          i didn’t phrase the point very well initially, so thanks for calling me on it :)

          • fucking truth.

            my battles were my family, we drew detailed family trees to prove it. and I still talk to them constantly. I miss how close we were, and I miss that feeling of being part of something.

            and yeah, they never gave a fuck about who i dated. a few were really curious and wanted to ask a lot of questions, which i never minded. but that was it, for the most part.

  2. Should the president opt to appeal this stay then he can forgo my vote. No more games with our lives.

  3. Without the judiciary to occasionally screw everyone’s heads back on, who FREAKING KNOWS where our country would be. And I actually understand what the President/DOJ is doing here, yes, this is slow, but then so is absolutely everything involving the bureaucracy (and let’s face it, our military has it’s own bureaucracy). Though this whole situation does suck balls.

  4. Can someone help me here? I have a legal IQ of like maybe 23, so from my mostly uninformed perspective, it looked like congress was stalling, so Philips was like “TOO SLOW LET ME DO IT.” Are there real honest to god non-stalling reasons that the repeal has been pending for an eternity? And how does a court-ordered injunction change the pre-existing support of congress and the pentagon? Did Philips change the terms of the repeal?

    • Yeah so I should probably have explained this better.

      Philips’s injunction, back in September, came when the DADT repeal had not yet been passed by Congress, and the legislation stalled. I like your description of it as “too slow let me do it” move, ha. I think it can be interpreted as a “get your shit together Congress” move, too.

      Since then, the DOJ appealed Philips’s decision in a higher court (the ninth), and the higher court put a stay on Philips’s injunction until the ninth actually heard the case and made an official decision (i think it’s now scheduled for september, but don’t remember exactly, so, y’know, around september). The Ninth’s stay meant that the Pentagon could go on with business as usual re: DADT, and still enforce it.

      Eventually, right, Congress did repeal DADT. Congress said that DADT will no longer be in force when Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the President all certify that the military is ready. 60 days after the certification, DADT will no longer be in force.

      Obama had been saying that certification would happen probs this month, but lots of gay rights people have been complaining it was taking too long. Plus, some assholes in Congress keeping on trying to add exceptions to/ stall the DADT repeal. So that’s a whole bunch more stalling/ accusations of stalling right there.


      The Ninth is still scheduled to hear the appeal on Philips’s September decision, and the stay on Philips’s injunction has remained in place as the Pentagon worked through its own process of preparing its people/ massive bureaucracy for the absence of DADT.

      Until last week, that is. Last week, the Ninth lifted the stay (citing the DOJ brief against DOMA), meaning that the Pentagon was no longer allowed to enforce DADT, even though the 3 dudes haven’t yet certified Pentagon implementation. And now it looks like the DOJ might again appeal, and ask for a stay.

      Either way, the Pentagon is (supposedly) still planning to do this certification thing soon, like in the next few weeks.

      One of the questions now is about the folks who are currently being investigated/ threatened under DADT — last week’s lifting of the stay ended all ongoing DADT investigations.

      It seems really shitty of Obama/ the DOJ to actually request that DADT be enforced, particularly after they just wrote this long brief on the history of government discrimination against gays (although in a different case, a DOMA case). Obama/ the DOJ could just not do anything, and that would mean DADT would effectively be gone now, and not in (hopefully) a few months.

      There’s also some concern about those assholes in Congress who keeping on trying to poke holes in the DADT repeal. Like check this out:

  5. Hey, thanks, rawrosaur, I really appreciate that. Particularly because after I posted that comment, I was like oh shit, I just posted a long-ass comment on my own post, I’m essentially having a long conversation with myself, in public, awesome.

    • It’s okay, Grace. I have conversations with myself in public all the time. That’s perfectly normal.

    • No, you’re not talking to yourself. You took the time to clarify the issue for your readers which is really super generous and wonderful. This helps boatloads. Thank you, Grace!

  6. IDK, it seems to me that the repeal of DADT has now been passed by both Congress *and* the courts, so the haters have no leg to stand on. They can’t argue that it’s just activist judges, because Congress agrees, and they can’t argue that politicians are being unreasonable so the judges should decide – because the judges agree.

    I thought when the latest court decision came out, it was because repeal was dragging in Congress and people kept trying to delay it, so it was a way of hustling things along and preventing any more delays. Now I still think it might be that, but that Obama is covering himself by doing things the accepted way (having been hated on for refusing to defend Section 3 of DOMA). He needs to be seen to be doing the ‘right thing’ because too many people probably genuinely think he had no right to stop defending Sec3 of DOMA, just because it’s been said so often.

    Hopefully, the haters won’t try too many more delay tactics anymore, now that they see they’ll be pushed to repeal even faster by the courts if they do.

    Maybe I’m just misunderstanding the whole situation, though…

Comments are closed.