The Obama administration's Department of Justice is seeking to overturn the worldwide injunction against enforcment of the noxious "Don't Ask, Don't Tell" policy.
Though the president may personally object to the discriminatory strategies that have been used to hound thousands of gay and lesbian service members from the military, his administration is mounting the legal defense of those strategies.
There have been lots of objections, including ACLU Lesbian, Gay, Bisexual and Transgender Project director James Esseks's complaint that "the government's decision to appeal this ruling is extremely disappointing. 'Don't Ask, Don't Tell' is an unconstitutional and discriminatory policy that hurts military effectiveness. It is time to end this destructive policy."
But the loudest complaints are coming from Republicans. Not, unfortunately, all Republicans. But the Log Cabin Republicans—the gay and lesbian group that secured the injunction from a federal judge—are mounting the defense of the injunction.
"At the same time the Pentagon was complying with the injunction against enforcing 'Don't Ask, Don't Tell,' President Obama's attorneys were making the argument that compliance would be impossible," says Christian Berle, a leader of the group. "Log Cabin Republicans believes that the Department of Justice is severely underestimating the professionalism of our men and women in uniform. The United States military is the most powerful, most adaptable armed force in the world. It has dealt with racial integration and greatly expanded opportunities for women, and has grown stronger because of it. Open service for gay and lesbian Americans will be no different. Granting this stay would perpetuate a grave injustice against servicemembers whose only desire is to defend our country honorably and honestly."
Dan Woods, the lawyer who represented the group in the Log Cabin Republicans vs United States of America lawsuit—which led to a ruling by Federal Judge Virginia Phillips that the policy violated the First and Fifth Amendments of the Constitution and the October 12 decision by Judge Phillips to issue a world-wide immediate and permanent injunction against enforcement of "Don't Ask, Don't Tell."
"As our brief shows, the government has clearly failed to justify why a stay should be granted," says Woods. "The position of the government that the court's injunction will prove harmful to the nation's military strength and readiness is contradicted by the evidence in the case. In fact, because 'Don't Ask, Don't Tell' weakens our national security, as the judge's ruling found and as the President has repeatedly admitted, the effect of staying the injunction would be to continue to weaken our national security. The government should be ashamed to be seeking that result."
The Log Cabin lawyer is right: legally, logically and morally. The Department of Justice does have a responsibility to enforce the law, even when the law is objectionable. But it does not have a responsibility to defend a policy that a federal judge has soundly and unequivocally identified as an assault on the Constitution that violates the basic premises of a free and just society.
This is not a close call, legally or morally. Appealing this ruling is wrong. Failing to take Congressional action to sustain it is unconscionable.
As Rea Carey, executive director of the National Gay and Lesbian Task Force, notes: "In her ruling last month, Judge Phillips soundly concluded that 'Don’t ask, don’t tell' violates the due process and First Amendment rights of service members. She noted that, rather than being necessary for military readiness, the policy has a 'direct and deleterious effect' on the armed forces."
"'Don’t ask, don’t tell' is not only unfair, it is illogical. It is a mark of shame that this policy is still in place. The Obama administration and Congress should stop stalling and exercise some leadership by doing all they can to end this policy right now."