As well could be expected, yesterday the Department of Justice asked for a stay on the appeals trial for the Log Cabin Republican's Constitutional challenge of the military's "Don't Ask, Don't Tell" policy.
This is but one suit that gay organizations have promised to keep alive until actual repeal of DADT becomes a reality.
I certainly think it's reasonable that the DOJ would ask the court to stay this. But I also think it's reasonable that the plaintiffs should oppose the motion.
Ninth Circuit docket notice, courtesy FogCityJohn.
Notice of Docket Activity
The following transaction was entered on 12/29/2010 at 5:36:05 PM PST and filed on 12/29/2010
Case Name: Log Cabin Republicans v. USA, et al
Case Number: 10-56634
Document(s): Document(s)
Docket Text:
Filed (ECF) Appellants Robert M. Gates and USA in 10-56634, Appellees Robert M. Gates and USA in 10-56813 Motion to stay proceedings. Date of service: 12/29/2010. [7595842] [10-56634, 10-56813] (AJS)
The following document(s) are associated with this transaction:
Document Description: Main Document
Original Filename: Govt Abey Motion w Attachs.pdf
The following information is for the use of court personnel:
DOCKET ENTRY ID: 7595842
RELIEF(S) DOCKETED:
motion to stay proceedings
DOCKET PART(S) ADDED: 7422893, 7422895, 7422898, 7422897
So it seems the DOJ would like to stay the case, likely indefinitely. for 90 days. We know the Log Cabin Republicans want to go forward, but why? Well, there are still a lot of loose ends surrounding this issue.
- When will the DADT law actually be repealed?
- Under what circumstances will gay servicemembers "be allowed" to serve?
- Will gay servicemembers be guaranteed an environment of non-discrimination?
Post Senate vote, Log Cabin Republican Executive Director Clarke Cooper made clear their intention was to move forward with the suit:
"However, as long as servicemembers still face the threat of discharge, Log Cabin Republicans will continue our fight in court to protect the fundamental constitutional rights of our men and women in uniform."
Speaking at the Signing Ceremony to Miami Herald's Steve Rothaus, LCR lead attorney Dan Woods said:
"Unfortunately, 'Don't Ask, Don't Tell' remains in force at this time and will continue to harm gay and lesbian servicemembers until sixty days after certification by the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff. As there is no set timeline for certification and the government remains legally able to discharge servicemembers for their sexual orientation, our case is alive and kicking until the promise signed today becomes a reality."
Judge Virginia Fields herself acknowledged the problems with the legislation before it was passed, when she refused to stay the trial in July, she wrote:
“In other words,” wrote Phillips, “the currently contemplated legislation, were it to become law, would not result in imminent repeal of the DADT Policy. Given the many contingencies involved—including the threshold contingency of Congressional approval—and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative.”
While the chances of full and open service are far less remote and less speculative--having crossed the high bar of Senate passage--the concerns about the lack of a timeline and multiple contingencies remain.
Following the Bill Signing Ceremony, Secretary of Defense Robert Gates clarified that, indeed, gay servicemembers remain at risk:
"In order to prevent any confusion, I want to be perfectly clear: at this time, there are no new changes to any existing Department or Service policies," said the memo, released [December 23, 2010].
"Service members who alter their personal conduct during this period may face adverse consequences," Gates wrote.
"Adverse consequences?" Sounds like a euphemism for something, but what?
In truth, the bill that passed through Congress provides no timeline mandate for actually repealing the law (or, actually, that DADT be repealed at all). When questioned on the time table, Gates has been vague, refusing to even speculate on the roughest of time frames:
"My personal approach to this would be that until all the training has been completed that until all the service chiefs are comfortable that the risks to unit cohesion and combat effectiveness ... had been addressed to their satisfaction and to my satisfaction, I would not sign the certification," Gates said.
"So that could be four months or four years?" asked Senator Scott Brown (R, Mass.).
"That has been exactly why I have been careful not to talk about how long I think this will take to implement," Gates replied.
One contingency of concern is "all the service chiefs are comfortable," (which they're not, right now). This would include General Amos, given to spontaneous eruptions of anti-gay bigotry. President Obama did clarify he had "a strong sense" it would be months, not years.
As the Senate vote approached, on multiple occasions Secretary Gates, President Obama and others cited the court verdicts as a reason to hurry along the legislative process.
Now, pragmatically, there exists little incentive for the DOD to move swiftly. All the political and populous pressure has been relieved. With the swift swipe of his pen, President Obama declared, "This is done." And most people believe that to be true, and have turned their attention elsewhere. The threat of the Log Cabin Republicans' DADT challenge continuing could provide an impetus for hurrying along the implementation and certification process, and make what is already a political reality a reality for our troops on the ground as well.
As LCR's Cooper said:
"President Obama today promised that implementation would move 'swiftly,' and Log Cabin plans to hold him to that promise."
Key dates for the continuing LCR DADT case, as they stood before this motion:
- January 24, 2011: Government's deadline to file Ninth Circuit appeal brief
- February 22, 2011: Plaintiffs' deadline to file response to Government's brief
- March 8, 2011: Government's deadline to respond to plaintiff's response
We'll see if they remain.
Update: Adam B has some comments, and has read the motion. The DOJ has offered to advise the courts in 90 days of the process.