‘DADT’ ruling gives White House a legal quandary
October 13, 2010
WASHINGTON — White House officials again this week insisted they’re committed to repealing the military’s “don’t ask, don’t tell” law. But government attorneys may now be forced to argue the opposite in court.
On Tuesday, U.S. District Judge Virginia Phillips issued an injunction to halt enforcement of the law, which bars gay troops from serving openly in the military. In her ruling, Phillips said the law “infringes the fundamental rights” of troops and recruits.
At the White House’s direction, Department of Justice officials had urged Phillips not to issue the injunction, and argued in defense of “don’t ask, don’t tell” when the law was challenged by the Log Cabin Republicans, a conservative gay-rights group.
Now that those efforts were unsuccessful, President Barack Obama will have to decide whether to appeal the injunction, effectively fighting against the repeal he has insisted he supports.
On Wednesday, White House Spokesman Robert Gibbs said that Obama wants to see the law end “in an orderly way,” and that the court’s injunction is not Obama’s preferred path to repeal.
“The best way to end it is for the Senate to follow the lead of the House,” he said.
In May, the House approved plans to repeal the law in early 2011, after completion of a Pentagon review into the impact of openly gay troops. But the Senate could not muster enough votes to pass the measure before its October break, and may not return to it in the lame-duck session later this year.
At press time, Justice Department officials had not yet announced whether they would appeal Phillips’ decision. Gay rights groups lobbied the White House not to do so, saying inaction could finally end the law.
“The Department of Justice is under no obligation to appeal this ruling,” said Aaron Belkin, director of the Palm Center, which supports open service for gay troops. “Should the administration continue to insist on waiting for Congressional action, we may have to wait many more years for the Pentagon to stop firing qualified men and women under this discriminatory policy.”
But Justice Department lawyers, under Obama and previous presidents, have argued that laws the administration dislikes -- as long as they are constitutionally sound -- must be upheld by the courts.
Defense Secretary Robert Gates said Wednesday that abruptly ending the law would have “enormous consequences” for troops, and that legislation should determine future policy instead of a court order.
Elaine Donnelly, president of the conservative Center for Military Readiness, said a decision not to appeal would “abandon fundamental constitutional principles allocating power and responsibility for military affairs to the legislative and executive branches.”
Her group blasted the California judge’s decision as shortsighted and ill-informed, and said that the court overstepped its bounds by issuing a sweeping order halting the law for U.S. military forces worldwide.
While Justice officials contemplate the next step, the California court injunction leaves closeted gay servicemembers in a quandary.
Without an appeal or a stay from a higher court, the “don’t ask, don’t tell” law is no longer enforceable, and Pentagon officials cannot dismiss troops for declaring their sexual orientation.
But if a higher court later overturns the ruling, gay troops won’t have any immunity from prosecution simply because an injunction was in place when they came out, according to Greg Rinckey, a Virginia attorney whose practice focuses on military issues.
“They could end up in even more trouble,” he said. “If the Justice Department does file an appeal and ask for a stay of the injunction, everything could go back to the way it was.”
Alexander Nicholson, director of the gay advocacy veterans group Servicemembers United, said they are urging gay troops “not to change anything” until the legal issues are finalized.
“It’s just another step in the process,” he said. “But it’s encouraging to see this judge take a courageous step forward, when Congress has been much slower to take that same action.”
Gibbs, while carefully not endorsing Phillips’ injunction, did say the court ruling was “a sign to Congress that time is running out on this policy.”
“It is not whether (the law) will be repealed, it’s the process of how,” he said.