Breaking: DOJ Asks Supreme Court To Keep Don’t Ask, Don’t Tell In Effect

Last week, the Log Cabin Republicans went to the U.S. Supreme Court to request that the stay the Ninth Circuit Court of Appeals invoked against federal court Judge Phillips’ October 12 ruling demanding the government stop all “Don’t Ask, Don’t Tell” related actions, including investigations and discharges, be dismissed.

In other words, last week the Log Cabin Republicans asked the Supreme Court to make respect Judge Phillips’ ruling and throw DADT to the curb.

Today, the Department of Justice asked the Supreme Court to keep “Don’t Ask, Don’t Tell” in effect. Read the text of the brief.)

This DADT dance is not unexpected.

☞ Read: “Don’t Ask, Don’t Tell” Repeal Dead — Unless Reid Acts Immediately ☜

The Log Cabin Republicans responded, saying, “Log Cabin Republicans are once again matched up against the President as his Justice Department is defending enforcement of ‘Don’t Ask, Don’t Tell’ before the United States Supreme Court. This decision comes after the Ninth Circuit imposed a stay resurrecting the policy, which was declared unconstitutional in September.

“It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy,” said R. Clarke Cooper, Executive Director of the Log Cabin Republicans.  “At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend ‘Don’t Ask, Don’t Tell’ in court.  This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President’s call.  The White House has been missing in action on Capitol Hill, undermining efforts to repeal ‘Don’t Ask, Don’t Tell’ in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform.”

The Washington Blade writes, “The decision on whether to vacate the stay is now before U.S. Associate Justice Anthony Kennedy, who’s the circuit justice for the Ninth Circuit. Whether the entire Supreme Court will be involved in the decision on vacating the order is up to Kennedy. The justice may decide for himself of refer the application to his colleagues on the bench.

“A source familiar with the case, who spoke on condition of anonymity, estimated that the Supreme Court would make a decision on whether or not to vacate the stay in a week.

Doug NeJaine, who’s gay and a law professor at Loyola Law School, predicted that the Supreme Court would side in favor of the U.S. government and allow the stay to continue.

“Preserving the status quo — both in affirming the Ninth Circuit and maintaining the stay pending litigation on the merits — is the least controversial thing to do,” NeJaime said. “Plus, I doubt that the Court wants to get involved in the merits of the policy at this point, which is what analyzing the stay question (and particularly the likelihood of success on the merits prong) would require.”

“Fred Sainz, the Human Rights Campaign”s vice president of communications, said Log Cabin “did the right thing” by asking the Supreme Court to lift the stay on the injunction against “Don’t Ask, Don’t Tell” and said the organization and its attorneys “have a responsibility to use every tool in their legal arsenal.”

“At the very least, it continues to bring attention to this issue and puts the Justice Department under enormous pressure if they choose to continue defending a law that has [now] been ruled unconstitutional,” Sainz said.”