Thursday, October 21, 2010

DADT Emergency Stay: Analyzing the Law and Politics

The US Court of Appeals for the Ninth Circuit has issued an "emergency stay" of a US District Court ruling that enjoins enforcement of Don't Ask, Don't Tell. The stay is only temporary, and it maintains the status quo until the court can fully review the issues raised by the government's request.

Legal Issues
The legal issues related to this litigation combine many of my teaching and research specialities (e.g., Constitutional Law, LGBT rights, and Remedies). I have read all of the legal papers submitted in the case related to the stay (located on the Ninth Circuit website).

The government makes some valid points in its motion for a stay. Namely, an abundance of Supreme Court precedent dictates that courts must display deference to Congress when it regulates military affairs. The government argues that the District Court failed to show proper deference when it issued the injunction.

Some of the government's arguments, however, are very flawed. For example, the government continues to use the dramatic label "worldwide injunction" to describe the judge's order. That label is geared to catch the attention of the 24-hour news racket, but it has very little legal value.

The lower court's injunction properly enjoined the government from enforcing a statute that it had already determined was unconstitutional on its face. The only reason why the injunction is "worldwide" is because the military has a worldwide presence. Nothing is gained from making dramatic -- but baseless -- legal arguments.

Furthermore, the government contends that the injunction should only apply to the plaintiffs and not to all gays and lesbians currently in or who seek admission to the military. This argument is also flawed.

The District Court held that the law on its face violates the Constitution. While this conclusion is susceptible to reversal, once a court determines that a law is "facially" unconstitutional, it can enjoin enforcement of that law altogether. If, on the other hand, the court had only decided that the law was unconstitutional "as applied" to the plaintiff in this litigation (i.e., the Log Cabin Club), then a more limited injunction would have been appropriate.

Political Issues
The case is undoubtedly a political nightmare to Democrats. During his presidential campaign, Barack Obama described himself as a "fierce" advocate for LGBT rights. He has also repeatedly said that he opposes DADT. Nonetheless, his administration has defended the statute and has now obtained a temporary stay of a judicial order that bans enforcement of a law he claims to oppose.

Dan Choi -- a former member of the military who was discharged because he is gay -- was on the news circuit this morning expressing anger over the Obama administration's decision to pursue an appeal in the litigation. Choi also stated that he would not vote for Obama in 2012.

It is likely that many other LGBT rights advocates will express similar disdain for Obama and the Democrats. But Obama has clearly chosen to align himself with conservative interests on this subject, even as he attempts to support gay rights. He is not the first (and probably will not be the last) president to triangulate on this matter.

1 comment:

Bud Evans said...

Obama is also, like Bush, attaching Signing Statements to Bills passed by congress. Furthermore, Obama has instructed The US Immigration Service to ignore existing laws which would send foreign widows of dead U.S. citizens who marry them back to their homeland. That law was passed by Congress. His Justice Department is not defending those laws; point-in-fact, Obama is openly violating the aforementioned law.

Also, hypocritically, The Department of Justice decided recently not to appeal a Federal Court ruling brought by the anti-gay Alliance Fund that would allow them near unfettered, permit-less, religious mob gatherings and the “right” to proselytize and harass tourists in our national parks.

Got it? The Department of Justice decided NOT TO APPEAL a court decision against the federal law, passed by Congress, which gave the US Park Service regulatory powers over federal parks.

What’s this? Haven’t we all been led to believe (falsely) that it was DoJ’s obligation (and "tradition") to defend all laws passed by Congress?

…Hmmmmmmm. Were we lied to again? This recent federal court ruling the Obama sycophants at the DoJ DECLINED TO APPEAL because letting religious fanatics harass tourists in national parks is more important than allowing Gays and Lesbian soldiers the dignity of being who they are while fighting and dying for their ungrateful and undeserving country:

….From The Washington Post:

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