And, pressure has begun building within the Democratic ranks for President Obama to do more to stop enforcement of the law, with Rep. Barney Frank (D-Mass.) on Wednesday releasing a statement saying, “President Obama made a mistake in appealing” the lower court decision in the case.
The stay brings to an end eight days in which the military did not enforce the 16-year-old ban on gays in the military — a period during which at least some openly gay former service members, including former Army Lieutenant Dan Choi on Tuesday, were allowed to re-enlist. It is not clear what impact the stay, which is temporary, might have on their re-enlistment.
The 9th Circuit’s order on Wednesday was in response to two emergency motions filed by the U.S. Department of Justice. One sought the temporary stay of the injunction against DADT until DOJ and attorneys for Log Cabin Republicans can submit briefs regarding a more lasting injunction. The 9th Circuit granted the temporary stay and it will remain in place until the 9th Circuit rules on the second motion. Briefs on the second motion are due Oct. 25.
The second DOJ motion seeks a more lasting stay on the injunction — one that would remain in place until the 9th Circuit can rule on the merits of the underlying lawsuit, Log Cabin Republicans v. U.S.
In Log Cabin v. U.S., U.S. District Court Judge Virginia Phillips ruled Sept. 9 that DADT violates the First Amendment right to free speech and the Fifth Amendment right to due process in the federal constitution.
Rep. Frank, a Democratic Party loyalist and not one prone to quick criticism of a Democratic president, said Wednesday that, while President Obama does have an “obligation to defend even laws they dislike,” DADT has been repudiated not only by Obama but also by a “decisive majority of the House” and a majority of the Senate.
“The president must use every available tool he has to press the Senate” to pass the DADT repeal legislation, said Frank.
Judge Phillips formally entered her opinion in Log Cabin v. U.S. on Oct. 12 and issued an injunction, ordering the federal government to stop enforcement of DADT.
DOJ filed a motion with Judge Phillips on Oct. 14, asking her to issue a stay of her injunction while it appeals the decision to the 9th Circuit. But, on Oct. 19, Phillips denied that request.
In her six-page order Tuesday, Phillips noted that, before she issued the injunction, DOJ “provided no evidence regarding the alleged disruption” to military readiness or regarding the “need to revise dozens of policies and regulations” that DOJ claimed would be associated with compliance with the injunction.
And at a hearing on the injunction Oct. 18, she said, DOJ’s evidence was “unpersuasive” and “belied by the uncontroverted evidence presented at trial regarding the Don’t Ask, Don’t Tell Act’s effect on military readiness and unit cohesion.”
The Log Cabin Republicans presented its lawsuit, which was heard by Phillips in July, during two weeks of testimony at the U.S. District Court for Central California, in Riverside. Phillips noted that, at trial, DOJ “chose not to rebut” evidence submitted by LCR.
“So, to the extent [DOJ attorneys] now argue that stopping discharge under the [DADT] Act will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial,” wrote Phillips.
DOJ “did not do so” and the evidence it “belatedly present now does not meet their burden to obtain a stay.”
Phillips agreed with DOJ that the “public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights” and that preserving the status quo and enforcing laws are “important” interests. But, she said, “these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.”
Log Cabin praised Phillips’ order.
“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, executive director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.”
The road to repeal
The House has already passed a measure that includes repeal of DADT, but the Senate last month failed to break a Republican-led filibuster largely aimed at stopping the repeal. Senate Majority Leader Harry Reid has indicated he plans to bring the defense spending bill, which includes the repeal measure, to the floor when the Senate reconvenes following mid-term elections next month.
Lt. Dan Choi, who has been active in staging protests to the Obama administration over DADT and who was discharged under the law in June, went to a recruitment center in Times Square Tuesday to re-enlist. He said the process took more than two hours but that recruiters conducted themselves “very professionally” and allowed him to re-enlist.
Meanwhile, even a national gay Democratic group is beginning to show impatience with the Obama administration’s actions concerning DADT.
“If the Obama administration is going to appeal this decision to higher courts,” said National Stonewall Democrats Executive Director Michael Mitchell, “then we need to hear the President say that he believes DADT is unconstitutional. We need to hear it in a context of a plan [for eradicating DADT] that includes several back-ups, especially if Senator [John] McCain is serious about his churlish and misguided threat of another filibuster in the lame duck session.”
McCain, speaking to an NBC affiliate station in Arizona Sunday, Oct. 17, said, “Absolutely I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness.”
McCain led filibuster efforts last month that derailed a defense spending bill that included DADT repeal language. That spending bill, an annual defense authorization bill, is critical to funding operations of the Department of Defense. Democrats have said they have the 55 votes needed to stop any effort to strip the DADT repeal language from the bill, but they did not have the 60 votes they needed to break the filibuster. The mid-term elections are expected to weaken their ability to break a filibuster even further.
Rep. Frank, in the statement he issued Wednesday, said that, if Republicans again mount a filibuster, “the President should reconsider the decision to appeal” Log Cabin v. U.S. “and should also state clearly that any member of the military who acts in accord with the injunction…will remain protected against any disciplinary action in the future.”
“While the president does not have the authority unilaterally to repeal a statute,” said Frank, “he clearly has the discretion to order that no subsequent retroactive application of the policy be imposed.”