The Acting Solicitor General, Neal Kumar Katyal, has asked the U.S. Supreme Court to deny the Log Cabin Republican’s motion to vacate the stay of the DADT injunction:
Government lawyers asked the U.S. Supreme Court Wednesday to deny a request by the Log Cabin Republicans that the court lift a stay of the worldwide injunction a federal judge placed on the “don’t ask, don’t tell” policy in September after she rule the law unconstitutional.
The motion includes with a Declaration from Clifford Stanley, the Under Secretary of Defense for Personnel and Readiness who tells the Court:
I submit this declaration to make the following point: the Government intends to appeal the Court’s decision. During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas. The magnitude of repealing the DADT law and policy is demonstrated by the Department’s ongoing efforts to study the implications of repealing DADT, which I outline in detail below.
According to Stanley, the injunction would adversely impact “military readiness”:
As demonstrated below, in the event DADT is no longer in effect, an injunction with immediate and worldwide effect will have adverse effects on both military readiness and the Department’s ability to effect a smooth and lasting transition to a policy that accommodates the presence of openly gay and lesbian servicemembers. The stakes here are so high, and the potential harm so great, that caution is in order.
There’s has been an abundance of caution. Too much caution. DADT should be long gone by now.
Could this be a bigger mess for the Obama administration? They’ve so lost control of this process – and I don’t really think there is a strategy to fix it. That’s why this Log Cabin lawsuit keeps causing more and more problems for the administration.
Log Cabin’s Executive Director and the group’s attorney have issued statements.
First, really interesting background from R. Clarke Cooper, the Executive Director of Log Cabin Republicans:
“It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy. At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend ‘Don’t Ask, Don’t Tell’ in court. This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President’s call. The White House has been missing in action on Capitol Hill, undermining efforts to repeal ‘Don’t Ask, Don’t Tell’ in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform.”
The White House was also missing in action in September, when the Defense bill hit the Senate floor.
And, here’s the statement from Dan Woods, the lead attorney from White & Case:
“We have reviewed the government’s opposition to Log Cabin’s application to vacate the stay of Judge Phillips’s injunction by the Ninth Circuit. In our view, the government’s lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court. First, we argued that the premise of the government’s position–that it needs time to conduct an orderly process of repealing DADT–is entirely speculative because Congress has not and very well may never repeal DADT; the government’s filing today does not address that issue. Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government’s filing today does not respond to that point either. At this point, all we can do is to look forward to a favorable ruling from the Supreme Court.”
A favorable ruling from the Supreme Court would be a very good thing.