Breaking: Obama’s DOJ Files Emergency Stay AGAINST DADT Injunction

Joe Sudbay at AmericaBlog reports the “Department of Justice has asked Judge Phillips to issue a stay of her DADT injunction and indicated that it will appeal the decision.” In other words, the DOJ will appeal the federal court’s ruling that “Don’t Ask, Don’t Tell” is unconstitutional, and is asking her to place a hold on her later decision, two days ago, ordering the government to immediately suspend any investigations or discharges that are DADT-related.

Sudbay adds,

“DOJ invoked the Pentagon Working Group as a reason for needing the delay:

In support of the President’s decision to seek a congressional repeal of the law, and as directed by the Secretary of Defense, the Department of Defense has established a high-level Working Group that is currently conducting a comprehensive review of the statute and how best to implement a change in policy in a prudent manner. The Working Group is nearing completion of its report to the Secretary, which is due on December 1. The immediate implementation of the injunction would disrupt this review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces.

“In the first sentence above, you’ll notice a footnote. This is what it states:

1 As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal. However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.

“Got that? Remember, DOJ does not have to appeal this decision. But it is going to do just that.”

Pam Spaulding adds, “With all of the chaos surrounding the administration leaving the military high and dry as to what to do about ceasing enforcement of DADT as a result of the federal ruling, this was inevitable.”

Via Andrew Harmon and Kerry Eleveld at The Advocate:

“But Richard Socarides, a New York lawyer and former LGBT adviser to President Bill Clinton, said getting the stay on the suspension of discharges was not guaranteed and that if the court of appeals failed to grant it, the Justice Department would have to appeal to the U.S. Supreme Court.

“In order to get the stay, Socarides said the government would have to prove it would suffer serious, irreversible damage if it were denied.

“It’s considered an extreme remedy,” Socarides said. “Just coming in and saying that it would be better to do it in a more orderly fashion isn’t enough.”

“Socarides explained that DOJ was also in a tricky situation given the president’s position that he believes gays and lesbians should ultimately be able to serve openly in the military.

“They have severe political restrictions on what they can say,” Socarides said, noting that the Justice Department cannot argue, for instance, that allowing gays to serve openly would be harmful to the military. “They’re now in difficult position of having to articulate a position as to why, on an emergency basis, an order that is wholly consistent the president’s position should be denied.”

Servicemembers Legal Defense Network (SLDN) Executive Director Aubrey Sarvis responded by saying,

“The President needs to deliver on his promise to end the law this year. Unfortunately, it is becoming more and more clear that the Obama Administration intends to seek a stay to this injunction and it is going to appeal the decision. DADT may well be in a state of flux. It will remain the law unless the U.S. Senate acts in December and we have certification by the White House and Pentagon shortly thereafter.”

Human Rights Campaign President Joe Solmonese added,

“It it certainly disappointing and frustrating that the administration has sought a stay. There is one simple way to put the endless legal wrangling behind us and do what the President and the American people want to strengthen our military: the administration and Congress need to finish the legislative work on ‘Don’t Ask, Don’t Tell’ repeal after the election. The interests of the administration, the military, and most importantly the American people are best served by doing the hard work of enacting a durable legislative repeal of this discriminatory law.”

Robin McGehee, co-founder and director of GetEQUAL, stated,

“Today’s appeal by President Obama’s Department of Justice is not only indefensible — it is yet another shocking lack of leadership from the White House on issues of equality for the LGBT community. Regardless of the White House’s claim that they had no choice in this matter, the fact is that there was no reason they had to move forward with appealing this decision today. For them to do so, particularly in the same week they also announced their appeal of the Defense of Marriage Act ruling that also found a section of that law unconstitutional, adds insult to injury for the relationship between President Obama and the lesbian, gay, bisexual and transgender community.

Yet again, we are faced with action by this Administration that stands in stark contrast to the campaign rhetoric and lofty speeches about equality that continue to be served up as progress to our community. We’d like to say we’re still hoping in the change promised to us two years ago, but that hope is fading away quickly — particularly when the lives and livelihoods of our brothers and sisters are on the line.”