BREAKING NEWS: Justice Department asks judge to stay injunction, keep DADT policy in place

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RIVERSIDE – The Justice Department decided today to ask a district court judge in Riverside to stay her worldwide injunction that barred enforcement of the military’s discriminatory “Don’t Ask, Don’t Tell” policy.

On Tuesday, U.S. District Court Judge Virginia A. Phillips issued the injunction after finding during a trial that DADT was unconstitutional on First and First Amendment grounds.

The move by the Justice Department was widely expected by the legal community, including SDGLN Legal Expert Ari Ezra Waldman.

But it puts the Obama administration in an awkward position of defending a law that President Barack Obama seeks to repeal.

“The Government intends to appeal the Court’s decision. During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas,” said Clifford Stanley, Undersecretary of Defense for Personnel and Readiness in documents filed this afternoon in a California federal court.

“The magnitude of repealing the DADT law and policy is demonstrated by the Department’s ongoing efforts to study the implications of repealing DADT,” he wrote.

“An injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed,” Stanley said.

Log Cabin Republicans brought the lawsuit that led to the injunction, and its national leaders wasted no time playing politics in responding to today’s development.

“After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend ‘Don’t Ask, Don’t Tell,'” said Christian Berle, deputy executive director of Log Cabin Republicans.

“Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied. Meanwhile, we urge Senate Majority Leader Harry Reid to do what it takes in the lame duck session to end ‘Don’t Ask, Don’t Tell’ legislatively. If Senator Reid treats the minority party fairly, the votes will be there to end ‘Don’t Ask, Don’t Tell’ once and for all,” Berle said.

Dan Wood, a lawyer with White & Case that handled the Log Cabin Republicans v. United States lawsuit, also took a potshot at the Obama administration.

“We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘Don’t Ask, Don’t Tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” Woods said.

“Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic homosexuals are serving in our Armed Forces to fight for all of our constitutional rights while the government is denying them theirs,” Woods said.

It is not known when Judge Phillips will respond to the request.

The reaction was swift.

Army veteran and SLDN Executive Director Aubrey Sarvis:

“We are disappointed but not surprised to learn the Department of Justice appealed the decision by Judge Phillips and asked that the injunction not be enforced for now. Judge Phillips will need to decide if the injunction stopping the investigations and discharges is on hold. The earlier decision by the Staff Judge Advocate Generals from the Military Services to abide by the terms in the court’s order barring the military from investigating or discharging service members was an extraordinarily positive development. Until that changes, we are monitoring active-duty clients and fielding calls to our hotline.

“It is clear there is confusion and this interim period is dangerous for service members. Our service members need finality. The President needs to deliver on his promise to end the law this year. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington. Congress made this law over 17 years ago and Congress now has an affirmative responsibility to bring clarity and finality to ending this law.

“We need to put the safety and well being of gay and lesbian service members first. Service members continue to remain vulnerable under DADT. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days.”

Servicemembers United statement

“This request from the Obama administration asking Judge Phillips to stay her own injunction was expected, but it is nevertheless disappointing in light of the president’s claim that ‘Don’t Ask, Don’t Tell’ harms national security and impairs military readiness.” said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “As Americans, we all hope that our Commander-in-Chief will fiercely advocate for the immediate elimination anything that stands in the way of national security and military readiness.”

Human Rights Campaign President Joe Solmonese:

“It is certainly disappointing and frustrating that the administration has sought a stay. There is one simple way to put the endless legal wrangling behind us and do what the President and the American people want to strengthen our military: the administration and Congress need to finish the legislative work on ‘Don’t Ask, Don’t Tell’ repeal after the election. The interests of the administration, the military, and most importantly the American people are best served by doing the hard work of enacting a durable legislative repeal of this discriminatory law.”

“The President needs to deliver on his promise to end the law this year. Unfortunately, it is becoming more and more clear that the Obama Administration intends to seek a stay to this injunction and it is going to appeal the decision. DADT may well be in a state of flux. It will remain the law unless the U.S. Senate acts in December and we have certification by the White House and Pentagon shortly thereafter.”