Justice Dept. defends 'Don't Ask' in court
Posted on Sep 27, 2010 | by Michael Foust
LOS ANGELES (BP)--The Obama Justice Department is asking a federal judge to keep the military's Don't Ask, Don't Tell policy on homosexuals in place, arguing that rulings in other circuits upholding the ban prevent the judge from issuing a nationwide injunction against the 17-year-old policy.
The 14-page brief makes clear that President Obama himself opposes the policy, but it also rejects arguments by the Log Cabin Republicans -- the homosexual group that filed the suit -- that the judge can prevent enforcement of the policy across the country.
The brief was filed two weeks after U.S. District Judge Virginia Phillips, who is based in California, issued a ruling overturning the policy, which prevents homosexuals from serving openly in the military. The Justice Department has not yet filed an appeal, which would go to the Ninth Circuit Court of Appeals.
Supporters of Don't Ask, Don't Tell (DADT) warn that reversing it would have a negative impact on military readiness, cohesion, recruitment, retention and religious freedom.
"If this Court were to enjoin all discharges under DADT throughout the world, it would not only effectively overrule the decisions of numerous other circuits that have upheld DADT, but also preclude consideration of similar challenges by courts in other circuits that have not addressed the issue (not to mention other district judges in the Central District of California) prior to any decision by the Ninth Circuit," the Justice Department's brief states. "This Court 'would in effect be imposing [its] view of the law on all the other circuits.' ... Such a result would ... unjustifiably elevate this Court, and ultimately the Ninth Circuit, to a status of first among equals."
The brief was filed Sept. 23, one day before another judge in the Ninth Circuit dealt another blow to the policy. On Sept. 24, U.S. District Judge Ronald B. Leighton ordered the Air Force Reserves to reinstate Maj. Margaret Witt, a lesbian who had been discharged. Leighton had ruled against Witt several years ago but the Ninth Circuit returned the case to him with new instructions, and he said he felt he had no choice but to reinstate her. Although Leighton's ruling is limited to Witt's case, it has the potential to allow military personnel who are expelled in the Ninth Circuit to filed suit.
But the case before Judge Phillips is seen as a more immediate threat to Don't Ask, Don't Tell, especially because she seemed ready to issue an injunction preventing its enforcement.
The Justice Department argued in its brief to Phillips that she should not compel the executive branch "to implement an immediate cessation of the seventeen year old policy without regard for any effect such an abrupt change might have on the military’s operations," particularly "when the military is engaged in combat operations and other demanding military activities around the globe."
The Justice Department also argued that an injunction would be improper because Congress is considering a repeal of Don't Ask, Don't Tell. The brief notes that such a repeal effort was filibustered recently in the Senate, although it says another effort to pass it "may well come up before the full Senate prior to the end of the current Congress."
"[T]he Court should defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches," the brief says.
Supporters of the policy say recent news events only strengthen their belief that Christian conservatives and other traditionalists will suffer if the policy is overturned.
One major flair-up involves Army Lt. Gen. Thomas Bostick, who allegedly told service members stationed in Europe that opponents of open homosexuality are comparable to opponents of blacks in the military, post-World War II. Bostick has denied saying it, although several people who were in attendance did not back down and told The Washington Times he indeed said it. Bostick is a three-star general.
Bostick was quoted as saying, "Unfortunately, we have a minority of service members who are still racists and bigoted and you will never be able to get rid of them. But these people opposing this new policy will need to get with the program, and if they can't, they need to get out. No matter how much training and education of those in opposition, you're always going to have those that oppose this on moral and religious grounds just like you still have racists today."
Popular singer Lady Gaga, who has 6.4 million Twitter followers, argued at a rally in Maine that "we're penalizing the wrong soldier." Instead, she said, the military should eject "the straight soldier whose performance in the military is affected because he is homophobic."
"I would like to propose a new law: a law that sends home the soldier that has the problem," she said to a cheering crowd. "Our new law is called, 'If You Don't Like It, Go Home.' ... It sends home the soldier who fights for some freedoms, for some equalities, but not for the equality of the gay."
More than 65 chaplains sent a letter recently to President Obama and Secretary of Defense Robert Gates arguing that religious freedom will suffer if the policy if overturned. Some of the chaplains were Southern Baptist.
"Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale," the chaplains' letter states. "Similarly, making orthodox Christians -- both chaplains and servicemen -- into second-class Soldiers, Sailors, Airmen, or Marines whose sincerely held religious beliefs are comparable to racism cannot help recruitment or retention."
Phillips was nominated by President Clinton, Leighton by President George W. Bush.
Michael Foust is an assistant editor of Baptist Press.