Notwithstanding the government's decision to stop defending Section 3 of the Defense of Marriage Act against constitutional challenges, White House press secretary Jay Carney suggested today that the Department of Justice will continue defending "Don't Ask, Don't Tell" in court.
Although President Obama signed the Don't Ask, Don't Tell Repeal Act into law on Dec. 22, 2010, the implementation of the repeal will not be complete until a 60-day congressional review period passes after the president, secretary of defense and chairman of the Joint Chiefs of Staff certify that DADT repeal will not negatively impact military readiness and other concerns. Because of this, the Log Cabin Republicans and other groups are still maintaining various challenges to DADT.
Facing a deadline of today for the government to file its appellate brief before the U.S. Court of Appeals for the Ninth Circuit in Log Cabin Republicans v. United States, Carney said that the administration has asked the court to hold off on considering the appeal so that the administration can implement the DADT Repeal Act and end the law.
Carney was asked by Metro Weekly today if the Feb. 23 legal determination that resulted in the decision to stop defending DOMA – that laws that classify people by sexual orientation deserve heightened scrutiny – will similarly put an end to the government's defense of DADT.
The letter that Attorney General Eric Holder sent on Feb. 23 to House Speaker John Boehner (R-Ohio) announcing that the administration would no long be defending Section 3 of DOMA in court was made in reference to two cases brought in the U.S. Court of Appeals for the Second Circuit. According to the letter, however, Holder wrote specifically that "pursuant to the President's instructions" the decision was to apply to other cases challenging Section 3 of DOMA.
Metro Weekly asked Carney whether -- in light of the heightened scrutiny the administration now applies to sexual orientation classifications -- Obama gave the Justice Department any similar "instructions" regarding his view of the constitutionality of DADT.
Carney initially only referenced the Justice Department's filing deadline in the LCR case and suggested that the DOJ would be submitting its filing, but did not answer whether the president had taken any action or given any instructions regarding the LCR case.
Pressed further as to whether Obama had made any similar determination that DADT was unconstitutional in light of the Feb. 23 announcement regarding DOMA, Carney said, "Not that I know of, no."
[UPDATE @ 5:45 PM: Told of the White House response, Log Cabin Republicans executive director Clarke Cooper wrote to Metro Weekly, "Good grief."
More substantatively, however, Cooper pointed out, "My colleagues in the Army are confused by the Obama administration decision to defend DADT court. It is especially frustrating to witness the defense of DADT at a time when commanders are being trained up by [Department of Defense] on open service and open recruitment."
Metro Weekly will have further comment from LCR if and when DOJ files its brief.]
[LATE UPDATE: DOJ filed its brief this evening. For more, read: "DOJ Avoids DADT Constitutionality Question, Argues DADT Repeal Act Changed LCR Case"]
[UPDATE @ 6:15 PM: The official White House transcript:
MR. CARNEY: Yes, I’m sorry -- with the glasses, sir.
Q Hi. Thank you, Jay. The President’s determination earlier in the week that sex orientation classifications lead to heightened scrutiny led him to determine that section three of DOMA was unconstitutional. In that letter that the attorney general sent to Speaker Boehner, he said that pursuant to the President’s instructions, this would be applied in other cases, which yesterday was applied to two cases in the Second Circuit. My question is, did the President give any instructions to the Justice Department regarding his view of the constitutionality of the status of “don’t ask, don’t tell,” the appeal of which, in Log Cabin versus -- Log Cabin Republicans is due today?
MR. CARNEY: As you mentioned, the appeal is due today. I don’t have -- we don’t have -- we have to wait for that final brief.
Q But did the President give any instructions?
MR. CARNEY: Not that I’m aware of. As you know, we are very supportive of and glad that Congress repealed “don’t ask, don’t tell” and we are monitoring and glad that the process is proceeding smoothly and efficiently, the process of repeal. But on the brief and the President’s instructions, I don’t have anything for you.
Q But what you had said regarding the DOMA briefs was that the President -- that the deadline had forced the administration’s hand. Did the -- has the administration in any way reacted to today’s deadline?
MR. CARNEY: Well, I think, as you’ve said, the Department of Justice is going to file a final brief. And we will see what that says. But we expect the brief to say the following: reiterate -- number one, reiterating that the courts should not decide the case or the constitutional question, due to the pending repeal, which should be effective in a matter of months. As I said, the repeal is proceeding smoothly and efficiently. Our goal was to have it repealed. It has been repealed. And that process of the repeal is now proceeding efficiently and smoothly, which is a good thing.
Q So the President has not said that he believes that --
MR. CARNEY: Again, I think I said --
Q -- “don’t ask, don’t tell” is unconstitutional?
MR. CARNEY: Not that I know of. No.
So, there's that.]