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September 24, 2010

Justice Dept opposes nationwide injunction against DADT, signals that it will appeal Log Cabin Republicans case

The Justice Department filed its objections yesterday to the proposed nationwide injunction against enforcement of the Don't Ask Don't Tell policy that is being sought by lawyers for the Log Cabin Republicans (LCR). LCR won a District Court ruling two weeks ago that the policy is unconstitutional. It seems apparent from the objections that Justice plans to appeal the underlying decision. If there was any doubt, the White House issued a statement declaring that the President would "continue to [seek] a legislative repeal" of the policy. Whatever form of injunction is issued, the Justice Department will ask the Ninth Circuit for a stay of the order pending appeal.

The DoJ brief argues that it would be inappropriate for a single trial court judge to order an end to the policy which has been upheld by other federal courts several times. One of the courts that has declined to rule that it is facially unconstitutional is the Ninth Circuit, in which Judge Phillips sits. Ironically, a ruling is expected tomorrow in Witt v. Air Force, which is on remand before a federal district judge in Tacoma, WA. In Witt, the Ninth Circuit did not find the DADT policy unconstitutional on its face, but ruled that the government had to produce evidence as to each challenged discharge that retention of the gay service member harmed the efficacy of the military.

The Justice Department argued that the scope of an injunction in Log Cabin Republicans v. U.S. should be limited to "bona fide members" of plaintiff LCR. Wonder if LCR will use that as a recruiting tool? Jon Davidson points out that the feds must have thought of that, too, since the brief specifies that only those who are "current LCR members" should be covered by the injunction.

Should it ever take effect, DoJ's approach would lead, at least theoretically, to a goofy system. Person A has been told that she would be discharged under DADT, but wait! -- she has a defense.  She became a Log Cabin Republican before a certain date. Stupid, stupid, stupid. 

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