DOJ Urges Continued Delay of LCR DADT Appeal, But Notes That Courts Have Found DADT To Be Constitutional

Posted by Chris Geidner
February 25, 2011 6:57 PM |

[UPDATE: For expanded analysis of tonight's filing, see "DOJ Avoids DADT Constitutionality Question, Argues DADT Repeal Act Changed LCR Case."]

As suggested this afternoon by White House Press Secretary Jay Carney, the Department of Justice has filed its brief defending "Don't Ask, Don't Tell" in Log Cabin Republicans v. United States.

On Thursday, I laid out the issues with how the Feb. 23 letter from Attorney General Eric Holder regarding the heightened scrutiny given to sexual orientation classifications might impact this DADT case. In summarizing the current circumstances, I wrote:

Friday, Feb. 25, is the deadline for the Department of Justice to file its opening brief before the U.S. Court of Appeals for the Ninth Circuit in its appeal in Log Cabin Republicans v. United States. In September, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order that halted enforcement of the law for several days.

The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set Friday as the deadline for the DOJ to file its brief defending DADT.

The government summarizes its argument advanced tonight in the Ninth Circuit as follows:

The government previously moved to hold this case in abeyance pending completion of the certification process established by Congress for repeal of § 654. A motions panel of this Court denied that motion. The government continues to believe that holding this case in abeyance would be appropriate, and the denial of the earlier motion is not binding on any panel that may be assigned this case for review on the merits. See, e.g., United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994). But should the Court press forward with this case, the judgment of the district court should be reversed for the reasons stated below.

As to the constitutionality of DADT, the government argues:

Before Congress enacted the Repeal Act and established an orderly process to repeal § 654, all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of § 654 against both substantive due process and First Amendment challenges.  As we noted in our stay motion, “the ‘detailed legislative record’ that Congress assembled in enacting § 654 ‘makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security.’” Gov’t Stay Mtn. 9 (quoting Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008)).

Read the brief: 9thCir-LCR-DOJBrf.pdf

[CLARIFICATION: Regarding a question raised about the headline. DOJ repeatedly makes clear in the brief that it wants the case to be held so that DADT repeal can be implemented. In that sense, they do not want the appeal to move forward. "Opposes," however, was probably not a good word to use in the headline as it suggested to some readers that DOJ was dropping its appeal of the LCR case. They have done no such thing, although, as I describe in my analysis piece, they have not exactly argued the DADT is constitutional either. It is a complex filing, and I apologize for any additional confusion that my headline created.

Accordingly, for further readers coming to this post, I have changed the headline from "DOJ Opposes Continued Appeal of LCR DADT Case, Notes That Courts Have Found DADT To Be Constitutional" to the current, "DOJ Urges Continued Delay of LCR DADT Appeal, But Notes That Courts Have Found DADT To Be Constitutional."]

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