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Today was a day of celebration, with important provisions of the PPACA taking effect beneficially affecting millions of people.

And today was a day of relief, as millions of small business owners and self-employed persons got significant tax relief.

And today might have been a day that would have gone down in history.  Today could have been the end of Don't Ask, Don't Tell, a repugnant policy that has been disowned by the American people and left to rot in the halls of Congress. Regardless of the Senate's failure to clean up the rot Tuesday, today could have been that day.

Today, had the Obama Administration agreed with a Federal judge's ruling that the Don't Ask Don't Tell policy was unconstitutional, and had they agreed with the proposed injunction halting enforcement of Don't Ask, Don't Tell nationwide, the policy would have ceased once Judge Philips entered her decree.

Instead, today, the Obama Administration decided, once more, to diss the LGBT community.  By demanding that Judge Philips issue an injunction applied only to members of the Log Cabin Republicans (the group that brought suit); by asking for months to seek a stay of that injunction if it is issued; by saying that because of ongoing Congressional action and Department of Defense studies no injunction should be issued until those activities are resolved -- the administration made clear who they listen to (The Pentagon) and who they ignore (LGBTs, civil rights advocates, the 'professional left', The New York Times and anyone else calling for an immediate cessation of this policy rotting pile of stink left over from the 1990's).

Despite having pledged to end Don't Ask, Don't Tell legislatively and having failed spectacularly in that effort, and despite having insisted that it was wrong to suspend the policy by Executive order even though legal authority exists for the President to do so, the President was serendipitously given one last out:

On September 9th Judge Philips declared the policy unconstitutional.  

"Don't ask, don't tell's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals. For these reasons, Plaintiff is entitled to judgment on behalf of its members on its claim for violation of the First Amendment's guarantees of freedom of speech and petition."

Phillips found that the "sweeping reach" of the restrictions placed on the speech of LGBT military personnel by DADT is "far broader than is reasonably necessary to protect the substantial government interest at stake".

Phillips also found that DADT violates LGBT personnel's right of association, as it prohibits them from openly joining organizations like LRC for fear of reprisal, thereby depriving them of their ability to petition the government for redress of grievances.

Phillips further ruled that DADT violates the substantive due process  rights of LGBT personnel as it violates the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

All the President had to say was "I agree. We can no longer in good conscience enforce an unconstitutional law." and Don't Ask, Don't Tell would have been history.

But the President chose not to do so.  Late afternoon Pacific Time Administration lawyers filed their response to the plaintiffs' proposal for injunction:

  • BECAUSE OF THE UNIQUE CONSIDERATIONS INVOLVED WHEN THE FEDERAL GOVERNMENT IS ENFORCING AND DEFENDING THE CONSTITUTIONALITY OF A LAW, PLAINTIFF'S PROPOSED WORLDWIDE AND MILITARY-WIDE INJUNCTION IS UNTENABLE
    • Plaintiff's Proposed Injunction Would Foreclose the United States

      from Litigating the Constitutionality of DADT in Other Courts

    • Plaintiff's Proposed Injunction Also Improperly Seeks to Prevent

      the Government From Making the Showing Permitted by the
      Ninth Circuit in Witt

    • Plaintiff's Proposed Injunction Impermissibly Seeks to Effectively

      Negate Courts of Appeals' Rulings Upholding DADT


  • PLAINTIFF'S PROPOSED INJUNCTION SEEKS TO EXTEND BEYOND ENJOINING DADT
  • NO INJUNCTION SHOULD BE ENTERED OR MADE EFFECTIVE UNTIL THE GOVERNMENT HAS HAD AN OPPORTUNITY TO CONSIDER THE TERMS OF ANY INJUNCTION AND TO MOVE FOR A STAY

And worse, the Administration had the temerity to assert that their legislative failures and administrative delays in fact justify further inaction on the part of the Court:

Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy.  An injunction with immediate effect will put DoD in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.  

Such an injunction is all the more improper at a moment when the political branches are thoroughly engaged in considering the repeal of the DADT statute in a manner consistent with military operations.  The working group's comprehensive review, and the process associated with it, has the support of the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff, among other senior civilian and military officials, and is specifically referenced in identical provisions regarding repeal of DADT contained in the versions of the National Defense Authorization Act for 2011 (2011 NDAA) currently being considered by the Congress.  Under these provisions, repeal of the DADT statute would be effective 60 days after the issuance of a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating  

 (A) That the President, the Secretary of Defense, and the Chairman of the
Joint Chiefs of Staff have considered the recommendations contained in the
[working group's] report and the report's proposed plan of action;
 (B) That the Department of Defense has prepared the necessary policies and
regulations to exercise the discretion provided by the repeal of § 654; and
 (C) That the implementation of necessary policies and regulations pursuant
to the discretion provided by the repeal of § 654 is consistent with the
standards of military readiness, military effectiveness, unit cohesion, and
recruiting and retention of the Armed Forces.

A version of the 2011 NDAA containing this provision has passed the House of Representatives, and an identical provision is contained in the 2011 NDAA that was reported out of the Senate Armed Services Committee.  While, as of the submission of this filing, the full Senate has not yet proceeded to debate on the bill (and, indeed, a motion to do so failed on September 21), the 2011 NDAA may well come up before the full Senate prior to the end of the current Congress.  In light of the working group's review and the legislation pending in the Congress, the Court should defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches.

 

You can't make this stuff up: The LGBT community is once again expected to rely on promises already broken, legislation that is to be passed but in fact is never brought up, a study that cannot interview the persons most affected, and a Congress that cannot fart without licking Mitch McConnell's boots?

At this point very few in the LGBT community  believe that

the 2011 NDAA may well come up before the full Senate prior to the end of the current Congress.

and even if it were to, even fewer would expect it to pass.  Even if it did pass it would have to face a conference committee, and then go back to the House and Senate for final votes all before the 111th Congress adjourns for good.

There may be a Santa Claus, and he may even visit Virginia, but you can be sure that Congress will adjourn before St. Nikolas gets landing clearance from Dulles International for this particular mission of good cheer.

And so with the government's brief, this last, best chance to actually do something (by the simple principle of not doing anything) was rejected.

The President was heckled a day or two ago over LGBT policies, including Don't Ask, Don't Tell, and replied with irritation.  If nothing else, expect the heckling to continue and worsen. Expect the exchanges to get testier and testier.  

Will we again see servicemen and ex-servicewomen chained to the White House fence?  Might we see continual vigils at the White House, reading the names of the 13,000+ who have been shamefully discharged, many while President Obama has been Commander-in-Chief?  Will GetEqual and friends determine new and more effective ways of committing civil disobedience?

I don't personally have any knowledge of what is going to happen in the next few months.  But I suspect it's going to be neither pleasant nor pretty for anyone concerned.  

And a demographic which Democrats could have counted on as a solid, unwavering base for a generation has been squandered, impaled on a President who cannot find it in himself to say 'yes'.

=================================================

Update: Response to government's injunction brief:

Dan Woods from White & Case, the firm representing the Log Cabin Republicans:

   "The Justice Department’s objections fail to recognize the implications of the government’s defeat at the trial. It is as if the South announced that it won the Civil War. The objections also fail to mention that the court has previously denied the government’s requests for a stay on three prior occasions and nothing has changed to suggest that a stay is now appropriate; if anything, the Senate vote this week shows that the court was correct in denying the prior requests for a stay. What is most troubling is that the government’s request for a stay ignores the harm that Don’t Ask, Don’t Tell causes to current and potential members of our Armed Forces. That is the saddest, most disappointing, and, in light of the President’s position, most hypocritical part of the objections."

Originally posted to jpmassar on Thu Sep 23, 2010 at 08:34 PM PDT.

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