We still have no indication whether the Justice Department will appeal the US District Court ruling finding the military’s Don’t Ask Don’t Tell policy unconstitutional. In the meantime, Congress will try to put the finishing touches on a legislative repeal of the policy. But two Senators, mindful of using every avenue possible to end the discharges, are advocating that the Justice Department drop the lawsuit and let the ruling stand.
Sen. Mark Udall (D-CO) and Kirsten Gillibrand (D-NY) have written Attorney General Eric Holder to ask that his agency not appeal the decision from Judge Virginia Phillips. Several experts believe that the DoJ has no obligation to defend the policy, and all of the principals in the executive branch: the Secretary of Defense, the Chairman of the Joint Chiefs and the President – oppose it. Udall and Gillibrand agree, and use part of the judge’s ruling as part of their evidence:
The following quote from the judge’s decision captures the overwhelming reason why the decision should stand: “Among those discharged were many with critically needed skills … Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.” As one of many criteria that the Justice Department will examine in deciding whether to appeal a potential permanent injunction to this policy, we ask that you examine whether or not an appeal furthers a legitimate governmental interest. We would say any appeal does not.
This does not mean that Udall and Gillibrand now want to go a judicial rather than a legislative route; in fact, they say later that “only action by Congress can bring real finality to this issue.” But dropping the appeal would not only send a powerful message, it would help with the efforts in the Senate and move the country forward on a key civil rights issue.
The full letter is on the flip.
Dear Mr. Attorney General,
We are writing to bring to your attention the recently issued decision of Judge Virginia A. Phillips of the United States District Court of the Central District of California in Log Cabin Republicans v. United States, which declared that the “Don’t Ask, Don’t Tell” (DADT) underlying law violates the U.S. Constitution’s guarantees of due process and free speech, thereby rendering DADT unconstitutional. In light of important national security concerns, we respectfully request that you, in your capacity at the Department of Justice, refrain from appealing this decision or any permanent injunction which may be granted against this law in the near future.
The following quote from the judge’s decision captures the overwhelming reason why the decision should stand: “Among those discharged were many with critically needed skills … Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.” As one of many criteria that the Justice Department will examine in deciding whether to appeal a potential permanent injunction to this policy, we ask that you examine whether or not an appeal furthers a legitimate governmental interest. We would say any appeal does not.
Additionally, DADT harms military readiness, as well as the morale and the cohesiveness of our armed forces, at a time when our military’s resources are strained and unity is critically important. For every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. This not only weakens our military, but neither is it an effective use of our government resources or taxpayer monies.
President Obama, Defense Secretary Robert M. Gates and Admiral Mike Mullen, chairman of the Joint Chiefs, have all publicly advocated for the repeal of this harmful law. There is no legal or military justification and not one shred of credible evidence that supports continuing the discriminatory DADT law, and considering the guidance of the commander-in-chief and the nation’s top two defense officials, we urge you to refrain from seeking an appeal. The federal court decision was a step in the right direction, and we are confident that the Senate will take the ultimate step by voting this fall on the fiscal year 2011 National Defense Authorization Act to permanently lift the ban on gays in the military. Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts. Therefore, we request your assistance in ensuring that we can eradicate this discriminatory law permanently and urge the Justice Department to choose not to appeal any court decision that would keep this law in place.
Thank you for your attention to this urgent matter. We look forward to hearing from you.




12 Comments

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It would also tell the Democrats’ base that they’re serious about this issue.
That would make me vote for either of them, if only I lived in their district.
This is cheap and idiotic politics by Gillibrand and Udall. Total bullshit. If the DOJ does NOT appeal from this decision, the entire ruling will be limited and restricted, as far as controlling authority, to the CDCA (Central District of California) and VERY arguably only the Log Cabin Republicans at issue in the lawsuit. At best, it would be a citable, but probably not controlling, applicable case in the remainder of the 9th Circuit and not worth diddly shit anywhere else.
If you want this decision to NOT mean anything and be effectively useless, then you argue for no appeal and celebrate the moronic Gillibrand and Udall position to just leave the ruling where it is. People and politicians are stupid, and this probably sounds just dandy to them. It is a bunch of crap.
I’m not an attorney so I’m going to remain silent on the merits of your argument. The vehemence of it makes you sound like you have an axe to grind. I certainly and undeniably have an axe to grind on this subject and personally, I don’t see anything wrong with some Democrats going on record, especially during an election season, as being fully in favor of LGBT civil rights.
bmaz:
They aren’t just going on record, they are shutting down possible progress, no? Aren’t their positions already known?
How would I know? I’ve just said that I’m not qualified to make any judgments on the merits of the argument and I wasn’t addressing them.
Well, you can’t address what Udall and Gillbrand are saying, without addressing the case itself and the legal ramifications of not appealing. As it stands, a decision in the CDCA only applies to the CDCA. Demanding that the DOJ not appeal is essentially halting the process of striking down DADT for the entire nation.
If you have little faith in Congress repealing it, then you absolutely want the DOJ to appeal, since that would pave the road to a possible overturning of the law by the Supreme Court. Even if Congress is well on its way to repealing, the DOJ should still go forward as a failsafe. If Congress does repeal, the case becomes moot. If Congress fails to repeal, then, again, it’s very possible for the courts to do what Congress couldn’t.
Supporters of gay rights need to look past the facile headline of ‘DOJ appealing court’s decision to strike down DADT,’ and actually research the judicial process in the country, to realize that appealing is actually very much _in support of_ getting rid of DADT. Remember, the DOJ did as little as it could to defend the policy, so it’s pretty clear that the White House isn’t actually trying to uphold DADT as constitutional.
Exactly right on all accounts.
And if this case goes to the Roberts Court, how then? I do not believe we will see a favorable decision from that Court. Do you?
Yes.
Both Senator Levin and the judge who ruled DADT unconstitutional have publicly said this does NOT repeal DADT.
Why are you repeating the lies and propaganda of the Obama administration ?
Why? The Roberts Court is notorious for writing decisions which seem to be justifications for the conservatives prejudices. Why do you think this case would be decided differently?