The Justice Department has unfortunately given notice that it intends to take the extra and unnecessary step of filing an emergency appeal in an attempt to get the only remaining legal challenge to the constitutionality of the “Don’t Ask, Don’t Tell” (DADT) law dismissed, despite a judge’s earlier ruling denying the government’s motion to dismiss. The case, Log Cabin Republicans v. United States of America, was the first legal challenge filed against the DADT law in the wake of the Lawrence v. Texas Supreme Court decision and is the only contemporary DADT lawsuit to survive the original motion to dismiss.
While it is understandable that the government usually has a duty to defend the laws of the United States, it is very disappointing that the Obama administration has gone beyond that duty in trying to thwart this case by way of this rare and unusual legal maneuver. In addition to the motion for interlocutory appeal, currently scheduled to be filed on November 16th, the administration is seeking to halt proceedings in the case and to block discovery by asserting the dubious claim that it would be burdensome to the Department of Defense.
The President’s stated desire to see the DADT law repealed is much appreciated and very encouraging. Indeed President Obama is squarely on the right side of history on this issue. However, putting all of our eggs in one basket – the legislative basket – is a risky proposition, as the political winds can quickly change in Washington and across the country. While we do not doubt the sincerity of the President’s desire to see this discriminatory policy overturned, we do strongly doubt the wisdom of the administration’s decision to go out of its way to thwart this sole remaining challenge to constitutionality of the DADT law.
Ultimately, this motion by the Justice Department is an affront to the tens of thousands of brave men and women in uniform who happen to be gay, lesbian, and bisexual. President Obama and his Justice Department should not file this unnecessary emergency appeal on November 16th, and the rest of the LGBT community should join in a united front in demanding the same.