The Justice Department will seek a short-term emergency stay to the bar on the military’s Don’t Ask Don’t Tell policy at the Ninth Circuit Court of Appeals, a puzzling twist to a court case that appeared to end the policy outright.
In the brief, DoJ seeks reinstatement of the policy by close of business today, July 15. It says that DoJ continues to defend the constitutionality of Don’t Ask Don’t Tell, which the President opposes and which was repealed by Congress late last year.
This appears to be a case about separation of powers and timing more than anything. The Pentagon is ready to certify repeal; all of the service chiefs, service secretaries and combatant commanders have submitted their final assessments. Repeal is scheduled to be certified by the end of the month or the beginning of next month, and after certification there is a 60-day Congressional review period (put in to earn Robert Byrd’s vote).
But the Justice Department says that the injunction banning the policy, coming just weeks before the Pentagon’s own certification process, will cause “real and immediate harm.” If that’s the case, why did the Pentagon meekly implement the injunction worldwide, allowing for the acceptance of gay and lesbian recruits, along with an end to all discharges? Maybe DoJ and DoD aren’t speaking to one another, but ending the policy only to fight to start it up again will cause a supreme amount of confusion and could lead to actual harm to the lives of soldiers.
What’s more, the Ninth Circuit denied the injunction because of the DoJ’s own policies on the Defense of Marriage Act, where it calls for heightened scrutiny for discrimination based on sexual orientation. DoJ in its brief says that the court “misapprehended the significance” of their DOMA policy. I don’t see how. Sexual orientation either gets heightened scrutiny or it doesn’t, you cannot pick and choose when to scrutinize.
The meat of the DoJ order is right here:
In sum, the government argues that lifting the stay unjustifiably takes the authority for repealing DADT away from the executive branch and it does so, at least in part, because of confusion by the Ninth Circuit panel regarding the DOJ’s view of whether DADT is constitutional after the passage of the repeal act and regarding the application of the DOJ’s DOMA decisions to military laws like DADT.
The executive branch wants to defend its policy work and doesn’t want the court bigfooting around finding its laws unconstitutional. Unless we’re talking about DOMA, where that’s precisely what DoJ has requested.
It looks like a question of who gets the power to overturn DADT. The President wants his signing ceremony.