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Don't Ask Don't Tell Repeal or Appeal?

By Kelly Thomas - Posted on 15 October 2010

From CNN. To the diappointment of many gay rights advocates, including me, the Department of Justice has decided to appeal the ruling by a federal judge that the policy of Don't Ask, Don't Tell must immediately end.

Washington (CNN) -- The Justice Department requested an emergency stay Thursday of a federal judge's injunction stopping enforcement of the military's policy that bars gay men and lesbians from serving openly.

Justice Department lawyers say they want the federal court in California to grant a stay of the injunction, which would remain in effect throughout the appeals process.

The government says the stay would allow for an orderly transition to a policy allowing openly gay men and women to serve in the U.S. military.

Log Cabin Republicans, a gay organization challenging the current law, said it wasn't surprised by the appeal and will promptly oppose the government's proposed stay.

"If this stay is granted, justice will be delayed, but it will not be denied," Log Cabin deputy executive director Christian Berle said in a statement. "Meanwhile, we urge Senate Majority Leader Harry Reid to do what it takes in the lame duck session to end 'don't ask, don't tell' legislatively."

U.S. District Court Judge Virginia Philips in California issued her injunction Tuesday.

Although President Barack Obama has stated his view that the current law is discriminatory, the administration also has said Congress, not the courts, should change the law allowing openly gay individuals to serve in the armed forces. The Justice Department says that it defends all laws of Congress in court.

"This is not a question of whether this policy will end. This policy will end, and on my watch," Obama said Thursday when asked about the issue at a town-hall-style meeting.

Meanwhile, senior military lawyers at the Department of Defense directed military lawyers to stop any proceedings related to "don't ask, don't tell," a Pentagon spokesman said.

On the surface, this seems like a slap in the face to the LGBT community, who has been patiently awaiting the repeal of this awful policy and has been pretty supportive of this President. However, President Obama may actually be advancing the cause by appealing now, rather than leaving future action open by anti-gay advocates. There are also good, necessary reasons to appeal based on separation of powers precedents and future implications. Basically, this is a standard and expected process and probably one that will help put DADT in the history books by the end of 2010. Confusing? Yes. Complicated? Yes.

Walter Dellinger, former Solicitor General under the Clinton administration, explains to Rachel Maddow the awkward legal path necessary to finally eliminate "Don't ask, don't tell" and how the White House can appeal the injunction against the policy while also opposing the policy in this interview. While still confusing, I think he puts things in perspective.

I just hope that this appeal of the repeal does not result in angry backlash from gay-rights supporters and the Demcoratic base via refusal to vote on November 2nd. Hopefully, word will spread that President Obama is looking at the big picture and the end game and may even be willing to take the fall for the good of the cause.




Pity Americans are extraordinarily bad at looking at the big picture.

I appreciate hearing that point of view.

From a Consitutional law professor I know:

"Please note that the issue moves well beyond DADT legislation. From a policy perspective, the military has always been treated differently by the courts as it relates to virtually every part of our legal system. This includes constitutional rights of citizens not applying to persons serving in the military (even the BIG 5). I can see why DOJ would want to not set a precedent of allowing a District Court Judge, in any jurisdiction, the ability to set policy limits at a national level. I have not read the decision, nor have I read the positions of the government and the petitioner. I am not justifying the government's decision to appeal, however I understand it from the perspective of needing to make sure all policy issues are considered, including the separation of powers, (should the courts interfere with military/national security policy) and as such litigation should be fully briefed and for lack of a better word, litigated. I suggest people view it from this perspective rather than that of an anti-gay stance by the DOJ or the administration." 


That's very similar to the explanation I heard on NPR this morning, and it made perfect sense to me. 


The judge should have no say in the repeal of the policy. The legislature is moving on it, albeit slowly.

People keep forgetting that DADT is actually an improvement on the policies that the military had before. Some would term DADT as progress.


And now it's Cindy McCain vs. John McCain? Come on, you stubborn fool-no more threats to fillibuster ending Don't Ask, Don't Tell!

Cindy McCain, the wife of Sen. John McCain (R-AZ), joined a number of celebrity supporters of the NoH8 Campaign -- originally designed to protest the passage of Proposition 8, California's anti-same sex marriage amendment -- in participating in a public service announcement about the bullying LGBT people face.

Ironically, her husband is currently at the center of the battle to prevent Democrats from repealing the military's Don't Ask Don't Tell policy (despite the results of the Pentagon's study that shows it would have little effect) during the upcoming lame duck session of Congress.

Cindy McCain and the other celebrities appearing in the PSA say unequivocally that government policies like DADT, the inability for same sex couples to marry and, in some states, the restrictions same sex couples face in adopting all contribute to a culture in which the intolerance, hatred and mockery of LGBT people remains acceptable.

Many of those who refused to support the defense authorization bill stated that they wanted to wait until the Pentagon Report came out. Well, it's here (official release date Dec. 1) and surprise, surprise, ending this discriminatory policy won't harm our military. Did they really need a year-long study to make that conclusion? Anyway, no more excuses for the GOP. Get rid of this policy! Apparently, the Long Cabin Republicans are working hard to get those votes, but I just wonder if it will make a difference. This is just another way to help Obama fail-how can they pass that up, even if it harms our military.

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