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Should the President Appeal a Judicial Ruling Striking Down DADT?

by Professor Will Huhn on September 24, 2010

in Constitutional Law,Wilson Huhn

     The Log Cabin Republicans sued the United States in federal court in California asking for a declaratory judgment that the federal statute prohibiting gays and lesbians from serving openly in the military – the "Don't Ask, Don't Tell" law – is unconstitutional.  On September 9 Judge Virginia A. Phillips of the Central District of California issued a ruling in favor of the group striking down the law.  The plaintiffs requested the judge to enter an injunction that would have applied the court's ruling to the entire United States military, and not just the members of the Log Cabin Republicans in the military service.  Yesterday, the White House announced that the Justice Department had taken steps to limit the scope of the order that the Judge might issue.  This filing also kept open the government's option to appeal the judge's ruling.  Many gay rights advocates have called upon President Obama not to appeal the judge's ruling, just as Governor Schwarzenegger decided not to appeal the Prop 8 decision.  What should the President do?

     Here is White House Press Secretary Robert Gibbs' statement about yesterday's filing:

Today, the Department of Justice made a filing in a legal challenge to the Don't Ask, Don't tell (DADT) policy, as it traditionally does when acts of Congress are challenged. This filing in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy. The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold. The President spoke out against DADT in his first State of the Union Address, and the Secretary of Defense and the Chairman of the Joint Chiefs have both testified in support of repeal. And the Department of Defense continues to work on a plan on how to implement repeal. The President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall.

     Here is the DOJ filing itself, a fourteen-page brief.  The government makes this key argument in opposition to the injunction requested by the Log Cabin plaintiffs:

     After more than six years of litigation during which time plaintiff Log Cabin Republicans (âLCRâ) sought only to vindicate the rights of its members,LCR has now filed a proposed judgment that seeks a worldwide, military-wide injunction of the âDonât Ask, Donât Tellâ (DADT) statute.

     As the Supreme Court has made clear, the United States is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress, or defend its constitutionality in other tribunals. This is especially true where, as is the case here, the law at issue has been found constitutional in numerous other courts throughout the country. See Cook v. Gates, 528 F.3d 42, 65 (1st Cir. 2008); Able v. United States, 155 F.3d 628, 631-36 (2d Cir. 1998); Richenberg v. Perry, 7 F.3d 256, 260-63 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 926-34 (4th Cir. 1996) (en banc). Caution is even more appropriate where the law involves regulation of our military, an area where the Supreme Court has instructed courts to proceed with substantial deference to military judgment. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981).

     The Human Rights Campaign, as well as other gay rights supporters, has called upon President Obama not to appeal Judge Phillips' decision.  Here is an excerpt from the HRC's open letter to Attorney General Holder:

We understand that the DOJ is currently evaluating whether to appeal this decision to the U.S. Court of Appeals for the Ninth Circuit. The facts presented in the case add to the ever-growing list of evidence illustrating that Congress lacked even a rational basis for enacting DADT. Based on the mounting evidence, we urge the DOJ to refrain from appealing the case to the Ninth Circuit.

This decision affirms what the vast majority of the American people know to be true â that it's time for DADT to be sent to the dustbin of history. We appreciate the Administration's support of the legislative efforts to repeal DADT, but we expect the DOJ to recognize the overwhelming evidence that proves DADT is unconstitutional. Thank you for your attention this matter. We look forward to a day when DADT no longer exists in our nation's laws.

     I am in complete agreement with the HRC's ultimate goal.  I too "look forward to a day when DADT no longer exists in our nation's laws."  It is appropriate to note that but for the recent filibuster of DADT repeal, that day would have already arrived. 

     But that's the point, isn't it?  The gay rights movement, like any civil rights movement, seeks equality under the law.  The entire purpose of their sacrifices and their hard work is to change the law.  It is not sufficient to win a temporary victory.  A district court ruling does not enjoy the respect that a decision of the Supreme Court would command, nor the legitimacy of a statutory repeal.  Neither lawmakers nor military leaders nor the American public as a whole would consider Judge Phillips' ruling, by itself, to be a definitive statement of the law on the validity of DADT. 

     Governor Schwarzenegger was wrong not to appeal the District Court's decision in the Prop 8 case, and President Obama is right to challenge the ruling of the District Court in the DADT case.  Under the Constitution, the President is obliged to "faithfully execute the laws."   That includes the responsibility to defend the laws of the United States in court.  Some have noted that past Presidents have not always followed this practice.  Richard Socarides, a former top aide to President Clinton, made this point last year in arguing that President Obama should not have defended the Defense of Marriage Act in court.  He states,

     From my experience, in a case where, as here, there are important political and social issues at stake, the presidentâs relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the presidentâs policy decision, the policy decision should always win out.

I could not disagree more.  Laws trump policies.  As our chief law enforcement officer, the President is chiefly responsible for exemplifying respect for the Rule of Law.  That includes the duty to defend laws that are in conflict with his preferred policies so long any rational argument can be raised in support of the law.

     I am confident that DADT will soon be repealed or definitively overturned.  When that happens, future administrations will, whatever their political beliefs, be obliged to "faithfully execute the laws" and to treat all persons equally regardless of sexual orientation.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.


John Aravosis September 24, 2010 at 9:58 pm

Socarides published that article on my blog. And with all due respect, it's not entirely relevant whether you like or don't like Richard's accurate description of how previous White House's have operated. It's a fact. You may not like it, but it's the way the White House operates when dealing with appeals. Except in this case, because the President is afraid to stir up controversy, he's defending the law when he doesn't have to. Mind you, this White House has had no problem ignoring other laws it has found convenient. Only when the gays are involved does the President suddenly become a stickler for defending and enforcing all laws. I've detailed a few here.

The Reverend September 25, 2010 at 9:49 am

I think that another way to look at this would be to consider how many votes the Senate had to repeal DADT. 56.

Only Senate filibuster rules, rules not found in the Constitution or any national law, prevented DADT from being repealed.

The Professor is correct in principle, Aravosis is correct in practice.

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