Judge Virginia Phillips of the Federal District Court for the Central District of California yesterday ordered a worldwide injunction banning enforcement of the military’s Don’t Ask Don’t Tell law.
The 17-year-old ban on open gays serving in the military “infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution,” Phillips wrote in the injunction.
The injunction came following her ruling last month that DADT is unconstitutional. Although the ruling and yesterday’s injunction has been hailed as a landmark for LGBT rights, the government has 60 days and is widely expected to appeal before the injunction takes effect. A stay will almost certainly be granted in the meantime. “The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so,” Dale Carpenter writes at the Volokh Conspiracy.
Jason Mazzone at Balkinization notes that the Obama administration could play both sides of this touchy issue.
The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”
University of Wisconsin law professor Ann Althouse disagrees on her blog. The timing is all off, she notes, and besides, Obama has proven wishy-washy on LGBT rights issues, something that could come back to haunt him and the Democrats in November’s midterm elections.
But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It’s such a bad issue for Obama. He hasn’t done what he promised, and he’s fought against constitutional rights that he ought to be actively pursuing, whether he’d made promises or not. He’s going to have to rest on the argument that he was always all about Congress making the change. But why hasn’t his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They’ve only made everyone unhappy — people who want DADT repealed and people who don’t. And then there’s the additional issue of “activist” judges.
Andrew Sullivan places some blame on Congressional Republicans, who successfully blocked legislative repeal of DADT several weeks ago. Although their public objection was that the repeal was tacked as a rider to the annual defense spending bill, Sullivan remains pessimistic about a legislative repeal moving forward.
Here’s the thing. We have no guarantee that the Senate will pass legislative repeal of DADT in this session; and there’s every chance that a radically Christianist GOP will win majorities in one or both Houses and definitely be able to sustain a filibuster against repeal in the next session if necessary. This is not because even most Republican voters back DADT; it is because it is a party hijacked by religious fundamentalists who cannot conceive of openly gay people serving their country. Look at the party of Paladino and DeMint and Palin. You think they will support anything that could remotely be deemed pro-gay?
The Department of Justice has 60 days, until Monday, December 13, to appeal, and if the administration plans to appeal they will likely wait until after the election in three weeks to do so.