Last month, the Hon. Virginia Phillips of the United States District Court for the Central District of California issued a nationwide injunction against enforcement of the discriminatory Don't Ask, Don't Tell law. On Monday, November 1, the United States Government convinced the Ninth Circuit to grant a stay of that order pending appeal, allowing the policy to be enforced in the meantime. Last Friday, the plaintiff Log Cabin Republicans petitioned Justice Anthony Kennedy to lift the stay and reimpose the ban.
(Each Justice is assigned 1-2 geographic circuits to be the point person for emergency applications; they can rule on them alone or refer matters to the full Court. Justice Kennedy, as a veteran of the Ninth Circuit, has long been assigned to these cases.)
Today, the government filed its response with Justice Kennedy, arguing for a continuation of the status quo ante pending appeal. Among other things, acting solicitor general Neal Katyal argues as a procedural matter that in order to merit such relief, LCR must show that at least four Justices would grant certiorari if the Ninth Circuit reverses the district court and finds the policy constitutional -- a showing LCR did not attempt in its pleadings. And since four Circuits have previously upheld DADT, it follows that if the Ninth joins them there's no circuit conflict and, therefore, likely no Supreme Court review.
What's of most interest to readers, though, is what the Obama Administration is saying about the substantive merits of DADT. As to that, the argument they make mostly isn't about the merits, but is more about the disruption that judicial repeal of DADT could cause. Yes, they argue that when it comes to military issues, the need of courts to defer to Congress is at its highest, and Congress determined "that the Act was necessary to preserve the military’s effectiveness as a fighting force .. and thus, to ensure national security.” And they maintain that as a matter of constitutional law, this isn't Lawrence v Texas, which declared sodomy bans illegal, because that case did not involve "a federal noncriminal statute involving military service," and therefore the same rights aren't in play.
Instead, the focus is on the breadth of the order below -- because this wasn't a class action, the brief argues, Judge Phillips shouldn't have given relief to anyone other than these two plaintiffs, and this was "an extraordinary and unwarranted intrusion into internal military affairs. Moreover, because acts of Congress are "presumptively constitutional," they should remain enforceable until some higher court strikes them down.
And in the meantime, the Working Group is really working on it, so let them spin down DADT in an "orderly," "thorough and deliberate" fashion:
As the government explained to the court of appeals, the Working Group has visited numerous military installations across the country and overseas, where it has interacted with tens of thousands of service members on this issue. It has also conducted an extensive survey of approximately 400,000 service members. The Working Group’s review will result in recommended changes to Department regulations and policies that would be necessary to implement an orderly and successful repeal of the statute. The Working Group is also developing guidance to properly train military commanders and service members with respect to any change in policy. Without sufficient time for such training and guidance, an immediate court-ordered repeal of the statute would risk disruption to military commanders and service members as they carry out their missions, especially in zones of active combat. There is thus nothing “exceptional” in the court of appeals’ conclusion that a momentous change in military policy should not occur overnight as the result of a global judicial decree.
(More below the fold ...)
And, finally, the Government insists that no one's getting discharged anytime soon (at least, not these plaintiffs), given the new procedures which require personal sign-off from top-level officers, including the Secretary of the Military Department concerned and the General Counsel of the Department of Defense.
An attached declaration from Working Group member Clifford Stanley, Under Secretary of Defense for Personnel and Readiness (and a retired Major General with 33 years experience in the Marine Corps) adds a few notes on what he believes the real-world implications are:
[A]n injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court's decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court's decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.
- For the tens of thousands of servicemembers serving in theaters of active conflict, there will be a tension between the requirement that the policy change take effect immediately and the need to avoid interference with ongoing operations. The exigencies of combat and other operations thus may delay the Department's ability to educate the forward-deployed servicemembers about a court-ordered change in policy.
- This is problematic because education and training will be essential to the implementation of any change in the DADT law and policy. It will be difficult, if not impossible, to provide timely education to forces engaged in combat operations. The Secretary of Defense specifically cited the need to avoid interfering with combat operations when charging the Working Group with developing a plan for implementing repeal of the DADT policy; the same concern applies to the judicial invalidation of the statute.
- Even for the hundreds of thousands of servicemembers not serving in forward-deployed areas, training and education will be essential to inform servicemembers of what is expected of them in this new environment. These training programs cannot be provided instantaneously.
- Invalidation of the DADT statute implicates dozens of DoD and Service policies and regulations that cover such disparate issues as housing, benefits, re-accession, military equal opportunity, anti-harassment, standards of conduct, rights and obligations of the Chaplain corps, and others. Amending these regulations would typically take several months. To change all of the implicated policies and underlying regulations will require a massive undertaking by the Department and cannot be done overnight.
And, finally, an argument that I can only describe as "haters gonna hate, and we've got to listen to 'em":
- A number of servicemembers have expressed concerns about, or opposition to, the repeal of DADT and its replacement with a policy that would permit gays and lesbians to serve openly. One of the purposes of the Working Group is to understand these concerns and to develop an implementation approach that adequately addresses them, through changes to policy where necessary and, more importantly, through education and training of the force. An immediate injunction would curtail the Working Group process and would send a very damaging message to our men and women in uniform that their views, concerns, and perspectives do not matter on an issue with a direct impact on their lives. This message would undermine the morale of the force – and not just among those servicemembers who oppose repeal, but of all servicemembers who have informed the Department of their concerns, insights, and suggestions.
- Overall, an abrupt change - without adequate planning or time to implement a plan - substantially increases the probability of failure or backlash in the early months of this transition, months that will be critical to our long-term success.
It's one thing to argue that there's a lot of policies which need to change, that it's not just about stopping the discharges. I get that. But that last paragraph seems to argue that members of our armed forces will have a problem obeying an order once handed down -- and that suggestion, as Rep. Patrick Murphy explained at a July 2008 hearing, is an insult to our men and women in uniform: