DADT's Continued Consequences
By Andrew Harmon
As the legal team challenging the policy in court sees it: Gay service members will face continued investigations and discharges. And the armed forces will be weakened, not sustained, as a result.
In a Monday court filing, attorneys representing a gay Republican group that successfully sued the government in federal court asked a three-judge panel of the U.S. court of appeals for the ninth circuit to suspend dont ask, dont tell as the Justice Department appeals the case.
The group argued in its 39-page brief that the government has not met the criteria required for a stay of the lower court decision namely that it has not proven a likelihood of success upon appeal, nor has it shown that it will face irreparable injury or enormous consequences, as Defense secretary Robert Gates recently said of any abrupt demise of the policy if dont ask, dont tell is enjoined by the courts.
An injunction on DADT, the Log Cabin Republicans argued, does not negatively affect ongoing defense operations: It does not order the military to redesign its barracks, to retool its pay scales or benefits, to re-ordain its chaplains, to rewrite its already extensive anti-harassment or dignity and respect rules,' or anything else, they wrote.
In a ruling earlier this month, U.S. district judge Virginia A. Phillips, who struck down DADT as unconstitutional in September, ordered the Pentagon to suspend all enforcement of dont ask, dont tell, including ongoing discharge proceedings of gay service members; Phillips also denied a Justice Department request to block that decision. But last week the ninth circuit granted a temporary stay of Phillipss ruling upon a request by the Obama administration's Department of Justice.
Dan Woods, lead attorney for the Log Cabin Republicans and a partner at White and Case in Los Angeles, said in a statement following the filing.
Woods wrote to the court that the Justice Department in its arguments solely relied on case law preceding Lawrence v. Texas, the landmark 2003 U.S. Supreme Court case that struck down sodomy laws, establishing the right of private sexual relations for gays and lesbians. Nor did it take into account the ninth circuit's "Witt Standard," where the court in 2008 ruled the government must show that discharging a gay service member is vital to maintain a unit's "good order, morale, and discipline."
The Log Cabin Republicans were joined Monday by several gay organizations and service member advocacy groups, including Servicemembers United, Servicemembers Legal Defense Network, the Palm Center, and Lambda Legal, which filed friend-of-court briefs arguing against further DADT enforcement.
Lambda Legal staff attorney Peter Renn further pointed to the damage caused by "don't ask, don't tell" on the macro level: "We need to stop pretending that overt displays of antigay bias don't have real-world consequences. They do," Renn said.
Attorneys expect the ninth circuit to decide on the matter this week.