Friday, October 15, 2010


Pentagon agrees to obey “Don’t Ask, Don’t Tell” ruling, but Justice Dept. to appeal

by Larry Geller

There’s an election just around the corner, and so Obama’s action, which will alienate LGBT voters and supporters, is somewhat inexplicable.

A federal judge has issued an injunction that Obama should celebrate, and the Pentagon agreed to obey despite some reservations that were expressed. Instead of rejoicing, Obama is asking for a stay of the injunction and will appeal the ruling. There may be some good reasons for his decision (i.e., defending US law), but that will not placate the electorate.

Here’s a short report from today’s Democracy Now:

Admin Seeks to Block "Don’t Ask, Don’t Tell" Repeal; Pentagon Vows Compliance

The Obama administration has asked a federal judge to suspend her ruling ordering the US military to stop enforcing the "Don’t Ask, Don’t Tell" law barring openly gay men and women from the armed forces. Judge Virginia Phillips of the Federal District Court for the Central District of California issued an injunction against the ban this week, one month after ruling it’s unconstitutional. On Thursday, the Justice Department asked Phillips to stay the injunction and said it would file an appeal to have it overturned. The administration claims it opposes the ban but wants it to remain in effect until the military concludes a review. The move came just as the Pentagon said it would obey Phillips’s order and immediately suspend any investigations or discharge proceedings against gay and lesbian soldiers.   [Democracy Now,  10/15/2010]

It’s not that Democrat voters will suddenly turn Republican, they know that Republicans in office would be worse. But more of them may stay home, increasingly disgusted with Obama’s choices and actions.

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I have denounced Obama on this point, saying he could end the policy by just asking Holder to not appeal. I believe Obama agrees the law IS unconstitutional and therefore, it would be absurd for the Justice Department to claim it IS constitutional.

But Rachel Maddow, taking the same view, interviewed a former Solicitor General of the US (forgot his name) on last night's program. He said it would be proper for Justice to appeal, even if they believe the law IS unconstitutional. His reasoning was that the power to declare an act of congress unconstitutional should not be decided by an individual federal judge. He set forth a scenario whereby a conservative Federal judge might find some law favored by Democrats to be unconstitutional in the future. And if there were a Republican president in charge of the Justice Department, you would not want a single conservative Federal judge, combined with a sitting GOP president, to be free to overturn progressive Federal legislation without having to go to either Congress or the Supreme Court.

He said the Justice Department COULD argue in an appellate court or the SCOTUS that they ageed the law is unconstitutional. But supporters of the law could file briefs as friends of the court and argue in FAVOR of the law, allowing for the Court to rule on the question of constitutionality. He agreed it is not clear how this Supreme Court might rule. And he can understand how this might be frustrating to advocates for gay equality. But he thought that would be the responsible way for the White House to proceed. And that it ensures a more stable, and deliberative, legal process.

He convinced me. And I do not hesitate to blast Obama when I think he is being cowardly or promoting the interests of the corporate elite over those of the people. (Too friggin' often, in my book). But in this case, I think Obama is right. (Damn!)

I am not sure how long Justice has for an appeal. Asking for a stay is usually immediate, but there are 60 days to file an appeal, well past the election. And the need to support the law would disappear if there were action to reverse DADT within that 60 days. He could have equivocated.

He may be (probably is) right, but in view of the Pentagon agreement, he'd lost ground among his base -- again.

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