BREAKING: Judge denies government’s request to resume enforcement of ‘don’t ask don’t tell’

As expected, a federal district judge in California on Tuesday denied the government’s request to delay her injunction from last week halting the military’s enforcement of “don’t ask don’t tell.”

The Associated Press reports:

U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

Phillips declared the “don’t ask, don’t tell” policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, issued the following statement in response to Phillips decision Tuesday to deny the government’s request:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Below is the full text of Phillips’ ruling:

LCR v USA – ORDER Emergency Stay Denied

—  John Wright

SLDN advises caution despite Pentagon announcement; Dan Choi attempts to re-enlist

Despite the Pentagon’s announcement Tuesday that military recruiters have been told they must accept gay applicants, the Servicemembers Legal Defense Network continues to advise caution.

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up,” SLDN Executive Director Aubrey Sarvis said in a statement Tuesday afternoon. “The ‘don’t ask, don’t tell’ law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Of course, if you’ve already been discharged for being gay, you don’t have much to lose. Among those who plan to try to re-enlist in the wake of the Pentagon announcement is Lt. Dan Choi, according to his Twitter feed:

—  John Wright

BREAKING: Pentagon tells recruiters DADT is suspended, they must accept gay applicants

The Associated Press is reporting that Pentagon spokeswoman Cynthia Smith has announced that “top-level” guidance has been issued to recruiting commands telling them that the “don’t ask, don’t tell” policy prohibiting openly gay and lesbian people from serving in the military has been suspended, at least for now.

But recruiters have also been told to tell possible LGBT recruits that the moratorium could be re-instated at any time.

The move comes in the wake of U.S. District Judge Virginia Phillips’ ruling, in a case brought by the Log Cabin Republicans, that DADT is unconstitutional, and the injunction she issued last week ordering the military to halt enforcement of the ban.

The Department of Justice, which is defending the ban in court, has asked Phillips to delay enforcement of her injunction pending appeal, but Phillips said Monday, Oct. 18, that it is unlikely she’ll suspend the injunction. If she doesn’t, the DOJ is expected to ask an appellate court to do so.

—  admin

DOJ appeals injunction halting DADT

Advocates warn LGBT servicemembers not to come out until questions are settled

From Staff and Wire Reports

The U.S. Department of Justice on Thursday, Oct. 14 asked a federal district judge to allow the military to continue enforcing “don’t ask, don’t tell” pending the government’s appeal of her ruling declaring the policy unconstitutional.

The request came two days after U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide.

The DOJ, which is defending the 17-year-old ban on open service, on Thursday asked Phillips to stay the injunction pending its appeal of her September ruling.

“As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal,” the justice department told Phillips. “However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”

If Phillips denies the request for a stay of the injunction, the DOJ can request an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear any appeal.

The DOJ has 60 days from the time of Phillips’ injunction to appeal her ruling.
Representatives from Log Cabin Republicans, which brought the lawsuit, and other groups advocating for DADT repeal warned LGBT servicemembers against coming out in the wake of Tuesday’s injunction.

Christian Berle, deputy executive director for Log Cabin Republicans issued a statement Thursday afternoon saying his organization had “expected that the Obama administration would continue to pull out all the stops to defend ‘don’t ask, don’t tell.’” But, Berle pledged, “Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution.  If this stay is granted, justice will be delayed, but it will not be denied.”

Berle said Log Cabin Republicans are urging Senate Majority Leader Harry Reid to “do what it takes” to repeal DADT when Congress reconvenes after the midterm elections in November.

“If Sen. Reid treats the minority party fairly, the votes will be there to end ‘don’t ask, don’t tell’ once and for all,” Berle said.

Although the House of Representatives voted this summer to repeal the policy, as an amendment to a Department of Defense spending bill, the measure died in the Senate last month when supporters could not get enough votes to end a Republican filibuster.

Republicans launched their filibuster in protest after Reid added an amendment to the bill dealing with immigration and refused to allow Republicans to add amendments from the Senate floor.

Even though Phillips’ injunction barring enforcement of DADT remains in force, at least for the time being, David Guy-Gainer of Forest Hills, a board member for Servicemembers Legal Defense Network, said his group is urging closeted servicemembers to act with caution.

“If you look at it in terms of gay marriage in California, you remember that sliver of time [between the Supreme Court ruling overturning the state’s ban on gay marriage] and the passage of Proposition 8 [which amended the Constitution], there were couples who were legally married in California. And even after Prop 8 passed, those marriages held up. They are still legal,” Guy-Gainer said.

“There is a chance there could be a window like that created in this case,” he continued. “But it’s too risky. If you have a gay servicemember who stands up while this injunction is in force and tells his commander, ‘Hey, I’m gay,’ and then the injunction is lifted, well the commander isn’t going to just forget that.

“Despite the injunction, we can’t confirm that they have actually stopped discharges, so it’s just too risky to actually come out,” Guy-Gainer said.

Rob Schlein, president of Log Cabin Republicans of Dallas, criticized the White House for appealing the injunction.

“I am very happy that the judge followed through on her decision and issued the injunction. But I think it is very sad that our ‘fierce advocate,’ President Obama, has filed an appeal, which is contradictory to his claims that he wants the law repealed,” Schlein said.

Rich Hisey, a former M.P. in the U.S. Army who is also a member of Log Cabin Dallas, said he feels “really good, very pleased” about Phillips’ ruling in the case and her injunction against DADT, despite the appeal.

“I think this is a big victory for Log Cabin Republicans, and a big victory for the gay community as a whole,” Hisey said. “It’s been a long, long road. But we’re finally getting close to the end.”

Still, Hisey said, he, too, warns gay and lesbian servicemembers to be “very, very cautious right now.”

“I served three years in the Army, in the military police, back in the 1980s. That was a very different time, and I was closeted the whole time I was in the military. Things are different now, but I think if I were in the military now, I would stay in the closet for a while longer at least. I think everything is still up in the air, and it is still too risky to come out,” Hisey said.

Hisey also echoed Schlein’s frustration with Democrats’ failure to repeal DADT, despite their pledges to do so.

“Obama has not shown any leadership, and he still continues to push the DOJ to appeal this ruling,” Hisey said.

“My real frustration is with the Democrats in the Senate. We had a golden opportunity last month to repeal DADT, but Harry Reid played politics with it and added the Dream Act to the bill, even though he knew it wouldn’t pass. That really bothers me.”

Senior White House officials have said the president wants to end DADT, but believes the change should come through Congress and not through the courts.

Shortly after the appeal was filed Thursday, President Obama sent out a notice on Twitter, reiterating his opposition to DADT and renewing his pledge to end the policy.

“Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to,” the president Tweeted. “DADT will end & it will end on my watch.”

The bill passed by the House calls for repeal of DADT, but only after the completion of a Pentagon study that includes a survey on how servicemembers and their family members feel about repealing the policy. That study is due Dec. 1.

This article appeared in the Dallas Voice print edition October 15, 2010.

—  Kevin Thomas

BREAKING: Government to request stay of injunction halting enfocement of DADT

The U.S. Department of Justice was expected to ask a federal judge on Thursday afternoon to allow the military to continue enforcing “don’t ask don’t tell” pending the government’s appeal of a September ruling declaring the policy unconstitutional.

U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide. In September, Phillips ruled that DADT violates servicemembers’ constitutional rights to free speech and due process.

The DOJ plans to appeal Phillips’ ruling to the U.S. Court of Appeals for the Ninth Circuit, and on Thursday government lawyers were expected to request a stay of the injunction pending the appeal, according to The Advocate. The appeal must be filed within 60 days.

If Phillips doesn’t grant their request for a stay, DOJ attorneys likely will ask for an emergency stay from the appeals court.

—  John Wright

BREAKING: Judge orders military to halt enforcement of ‘don’t ask don’t tell’

A federal judge in California has issued an injunction halting enforcement of “don’t ask don’t tell.”

Judge Virginia Phillips on Tuesday ordered the U.S. military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under DADT.

Phillips previously ruled that DADT violates servicemembers’ rights to due process and free speech. However, she delayed issuing an injunction in the lawsuit brought by the Log Cabin Republicans.

The Department of Justice now has 60 days to appeal the decision but has not said whether it will do so. In the meantime, the DOJ could also seek a stay of the decision from the U.S. Circuit Court of Appeals for the Ninth Circuit. DOJ has no obligation to appeal the ruling and could simply allow it to stand.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect.”

Christian Berle, acting executive director of Log Cabin Republicans, said in the wake of Phillips’ initial ruling, the injunction was the “only reasonable solution.”

“These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution,” Berle said. “It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination. The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible.”

Dan Woods, one of the attorneys representing Log Cabin, said he was “extremely pleased” with the injunction.

“The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” Woods said.

Other statements on Tuesday’s order:

Aaron Tax, legal director, Servicemembers Legal Defense Network:

“We applaud Judge Phillips for putting an immediate stop to all investigations and discharges under this unconstitutional law. As explained by the judge, this order applies across the military. This order bars the Department of Defense from enforcing or applying the ‘Don’t Ask, Don’t Tell’ law against any person under its command. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days. This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. The law still has a chance of being repealed in the lame duck session of Congress. Service members must proceed safely and should not come out at this time. Anyone in the armed forces with questions or concerns should call our hotline.”

—  John Wright

Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it dismissed the appeal of a gay couple who had sought a marriage license in Minnesota.

Dismissing an appeal has more significance than simply refusing to hear the appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

There is dispute within legal circles as to whether that dismissal means anything today.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas