What the DADT Litigation Is All About

BY ARTHUR S. LEONARD | The on-again, off-again federal court injunction against enforcement of the military’s Don’t Ask, Don’t Tell (DADT) policy may be headed into its final round given President Barack Obama’s commitment at a White House LGBT Pride reception last month that the certification required to implement last year’s repeal legislation would be made “in a matter of weeks, not months.”

Still, the recent dizzying pace of developments out of the US 9th Circuit Court of Appeals reflects not only the lingering politics of repeal on Capitol Hill but also the impact of a potential game-changer in gay rights constitutional litigation — one initiated by the Obama administration itself.

The most recent development on DADT is that a three-judge panel of the 9th Circuit agreed on July 15 to partially restore a stay of District Judge Virginia A. Phillips’ 2010 injunction blocking its enforcement. Just nine days earlier that same panel had lifted the stay, but responding to an emergency motion the Justice Department filed on July 14, it restored the stay and set oral arguments for September 1.

That decision was, however, for the most part symbolic. Phillips’ injunction against investigating service personnel, disciplining them, and discharging them remains in place. The panel allowed DADT to continue in name only.

What’s behind this seemingly arcane drama — and what does it all mean?

Perhaps the most significant aspect of the recent activity on DADT comes from its link to an Obama administration filing in a spousal benefits case, which argued the Defense of Marriage Act (DOMA) is unconstitutional.

In a July 1 filing in a case brought by Karen Golinski, a federal court employee in San Francisco who sued after her wife was denied spousal health benefits, the DOJ argued government policies that discriminate based on sexual orientation are subject to a heightened level of judicial scrutiny, and that DOMA’s Section 3, which denies federal recognition of marriages by same-sex couples, does not serve any important public interest, and so does not survive that constitutional scrutiny.

Five days later, on July 6, a 9th Circuit panel made up of Chief Judge Alex Kozinski and Judges Kim McLane Wardlaw and Richard A. Paez responded to a motion by the Log Cabin Republicans, who prevailed in their challenge to DADT before Phillips last year, that the stay on her ruling be lifted. The appeals panel, in approving that motion, stated that “the circumstances and balance of hardships have changed” since the stay was initially imposed last fall. And it specifically cited the Golinski brief.

Even before the DADT panel drew on Golinski, commentators were reacting to that brief as a watershed moment in gay civil rights history. Between February 23, when Attorney General Eric Holder announced the government would no longer defend DOMA, and July 1, the DOJ position evolved into active opposition to the 1996 statute.

The Golinski brief, then, reflects perhaps the Obama administration’s most decisive action on behalf of gay rights. It signals the government’s view that not only is DOMA unconstitutional, but potentially so too is all unequal treatment of gay people.

This shift comes as the Justice Department has also issued a directive that discretion be exercised when deciding whether to deport otherwise law-abiding undocumented immigrants who are same-sex spouses of US citizens, with some deportation orders canceled in response (see cover story).

The Golinski filing also suggests the government will make the same argument to the 1st Circuit Court of Appeals, which is considering an appeal of District Judge Joseph Tauro’s ruling last summer striking down the provision of DOMA that denies federal recognition of legal marriages by same-sex couples.

In September 2010, Phillips ruled that DADT violated the 5th Amendment’s equal protection rights of gays who sought to serve in the military, and issued a worldwide injunction against its enforcement. After she refused to stay that injunction pending appeal, the 9th Circuit accepted the government’s emergency appeal for a stay.

The Obama administration parlayed the threat of Phillips’ injunction in its DADT repeal lobbying effort late last year. Even though the repeal statute was signed on December 22, the policy will not end until 60 days after the president, the defense secretary, and the chair of the Joint Chiefs of Staff certify that sufficient planning has been completed to avoid any impairment of military readiness.

Even as the president was pledging that full repeal was imminent, however, his Justice Department was pressing to keep the stay of Phillips’ order in place.

The Log Cabin Republicans responded by arguing the government was no longer contending the policy is constitutional, and that every day it continued in effect inflicted a constitutional injury on gays in the services.

The sudden order on July 6 granting the Log Cabin motion was a surprise, but logical given the DOJ position on constitutionality. The 9th Circuit panel was brief and direct. After pointing out the government no longer asserts DADT is constitutional, and that DOJ now argues that “classifications based on sexual orientation should be subjected to heightened scrutiny,” the court observed that “the process of repealing” DADT “is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer.”

The grounds for staying the injunction, the court concluded, had dissipated.

The panel pointedly quoted DOJ’s concession in the Golinski brief that “there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities.”

Once a federal court has determined a government policy violates the constitutional rights of individuals, the government bears a high burden of showing it is necessary to keep that policy in effect while an appeal is going on. With the process of repeal nearly complete, the government’s argument about the potential for major disruption while the military wages two wars is no longer credible, the three judges concluded.

The day after the July 6 order, the Pentagon stated it would comply with the order to end enforcement of Don’t Ask, Don’t Tell.

Given the military’s compliance and Obama’s assurance that repeal certification is right around the corner, the Justice Department’s emergency motion on July 14 likely struck many as gratuitous. DOJ argued that the underlying issue had changed since Phillips made her ruling last year.

The question is not whether DADT is constitutional, the motion asserted, but rather whether Congress in December acted within its prerogatives in setting out the terms under which the policy would be ended. The motion appended an affidavit from Major General Steven A. Hummer, who is overseeing the implementation of repeal, who argued a smooth transition to a post-DADT military is more likely to be accomplished if the Pentagon owns the process rather than being forced to comply with a civilian court order.

With repeal so far along, however, it is hard to credit this as the source of the government’s “emergency.” It seems likely that the DOJ felt compelled to file its motion in response to the House Republican majority, which is eager to find any excuse to slow down the process of repeal — indeed, to reverse it — in order to placate its base.

The 9th Circuit panel, though willing to give the government an extension of DADT, if only in name, seemed to share doubts about the DOJ’s motivation. It asked the government to explain why the arguments it made on July 14 had not been articulated in the response it filed May 20 to the Log Cabin motion to lift the stay on Phillips’ injunction. This seems to be one ticked-off appellate panel, impatient as any of the rest of us with DADT’s slow death dance.

It seems doubtful that the government’s response — that the arguments it made last week reflected new developments in the repeal effort — will satisfy the 9th Circuit. Very telling, however, is DOJ’s request that the September 1 hearing be canceled given how close the president and top military officials are to certification. A definitive ruling on the constitutionality of DADT could expose the government to significant liability over past discharges and tuition monies recovered from ROTC and other service academy students later thrown out of the military because they were gay or lesbian.