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Federal Judge Strikes Down DADT Worldwide / Administration Appeals DOMA Ruling

by Professor Will Huhn on October 14, 2010

in Constitutional Law,Equal Protection,Freedom of Speech,Wilson Huhn

     Judge Virginia Phillips of the Central District of California has issued an injunction prohibiting the United States from enforcing "Don't Ask, Don't Tell" anywhere in the world.

     Judge Phillips based her original decision issued on September 9 on the ground that the law prohibiting gays and lesbians from serving openly in the military violates both the First and Fifth Amendments to the Constitution.  The judge then asked the parties to debate how broad the injunction should be – whether it should protect only the gay and lesbian soldiers who brought this action, or whether it should pertain to all soldiers serving anywhere in the world.  (I discussed that aspect of the case in a September 24 post entitled Should the President Appeal a Judicial Ruling Striking Down DADT? )  In the ruling issued on October 12, Judge Phillips made her choice, stating that the court:

(1) DECLARES that the act known as "Don't Ask, Don't Tell"1 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.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;

3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

     In my previous post about this case I took the position that the President should appeal the decision even though he agrees with it in order to defend the Rule of Law.  In light of the broad scope of the judge's ruling, I believe that an appeal is even more imperative. 

     In a related development, Jeremy Pelofsky of Reuters reports that the Obama administration has appealed the decision of Judge Joseph Tauro striking down the federal Defense of Marriage Act (DOMA) as unconstitutional.  I commented on Judge Tauro's decision in this post entitled Federal District Court Rules DOMA Unconstitutional.  Even though I am strongly opposed to DOMA and welcomed Judge Tauro's decision, I support the administration's decision to appeal the ruling.

     Those of you who disagree – who take the position that the President does not have the duty to defend the constitutionality of a federal law to which he or she is opposed – must be willing to accept the consequences of a political philosophy that does not respect the Rule of Law.  If you believe that President Obama need not defend a law that he considers unconstitutional, then you must have had no legitimate complaint when the administration of President George W. Bush authorized cruel and inhuman treatment of prisoners of war in violation of the  Geneva Convention and the Torture Act, laws that he thought unconstitutionally constrained the exercise of his powers as Commander-in-Chief.  (That principle also applies to those of you who supported the Bush administration's treatment of prisoners in violation of the Geneva Convention – you could have no complaint if the Obama administration were to fail to appeal these decisions!)  When a future administration refuses to defend or enforce a law that you support, including perhaps a law that prohibits discrimination on the basis of sexual orientation, you must concede that that is within the prerogative of the President. 

     The only sure and confident protection for individual rights and the rights of minorities is the Rule of Law.  The purpose of the gay rights movement like any other civil rights movement is to change the law – and once it is changed, it will have to be obeyed.

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.


Quidpro October 14, 2010 at 6:31 am

We are in agreement, Professor, that the Administration should appeal the recent decisions by district court judges stiking down the DADT and DOMA laws. As you may recall from prior posts we disagree on the substantive merits at issue in both cases. But, let me raise a slightly different issue. If DADT is unconstitutional, may the government go back to its previous policy of excluding homosexuals from serving in the armed forces?

Dave October 14, 2010 at 4:19 pm

Couldn't the same argument be made in the Prop 8 case in California?

You seemed to be ok with the Governor and AG not defending the rule of law in that case.

larry d. October 14, 2010 at 8:55 pm

The Rule of Law doesn't seem to be much of an issue in regard to illegal immigrants, either. Capitalizing Rule of Law feels pretty creepy, by the way.

P.O.L. October 14, 2010 at 10:37 pm

Dave, if I recall correctly, the professor did criticize the governor and AG for not appealing the Prop 8 decision. With that said, I don’t see how a decision not to appeal is hostile to the rule of law. The President has a duty to defend the constitution, a duty imposed by the supreme law of the land. How does the President’s decision to not take action that he believes is contrary to that duty hostile to the rule of law? To say the President has a duty to attempt to further actions he believes is unconstitutional is itself contrary to the rule of law.

larry d. October 15, 2010 at 7:40 am

So Obama doesn't think discriminating on the basis of sexual orientation is unconstitutional?

Professor Will Huhn October 20, 2010 at 6:15 pm

Thanks for the defense, P.O.L. I believe that there is a complex and sometimes competing set of duties on the President, just as obedience to the law is sometimes troublesome for the ordinary citizen. In Jurisprudence we read Martin Luther King, Jr.'s "Letter from a Birmingham Jail" and study Henry David Thorough's and Mohandos Gandhi's theories of civil disobedience. We also discuss the Underground Railroad and the Abwehr Conspiracy and the actions of people like Harriet Tubman and Raoul Wallenburg. There are extreme situations where our conscience calls upon us to disobey the law, either openly as defiant witnesses to truth, or, (and this is extremely rare) in secret to protect the innocent. I don't think that either of those situations applies to the President in this matter. I mention them simply as evidence that there are often competing demands upon our conscience between righteousness and the rule of law. In my opinion the President should almost always obey existing law and defend it in court, in accordance with the constitutional duty to "faithfully execute the laws." It is the duty of the courts, not the President, to "say what the law is" and to declare laws unconstitutional. But, P.O.L., you are correct to imply "never say never" – I am sure that there are situations where I would agree that the President would be justified in abandoning this principle. It is a matter of degree, not one of absolutes. It is just that I draw the line closer to enforcement of existing law and am generally against the President alone drawing conclusions about the constitutionality of laws. In my opinion, that tends to derogate the power of the people to enact laws to govern themselves – in that direction lies dictatorship.

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