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What DADT Ruling Means

Federal judge Virginia Phillips has just issued a permanent (as in, “forever”) injunction against enforcement of the “don’t ask, don’t tell” law. Does this really mean that the discharges will stop? Can a lone judge in California really effect a change of this magnitude?

Yes. She just did, and there’s no legal — as opposed to political — reason preventing this step. Her decision on a question of federal law, absent appeal, holds for the entire nation. After reiterating her judgment that the law violates constitutional protections of fundamental rights, free speech, and the right to petition the government for redress of grievances, the brief order makes clear its reach and effect. The court:

(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.

This means what it says. The policy is gone, and even those DADT-based investigations or discharges that are in process are to stop. Immediately.

Before issuing this final ruling, Judge Phillips had solicited input from the Obama Department of Justice about the effect of her proposed injunction. But their arguments about the harm of such a ruling failed to persuade her, so the law is now history, unless the Obama Administration appeals. Even in that case, they would have to ask for and be granted a stay (both of which would be quite likely) for the injunction to  be lifted.

What to do? This is perhaps the worst-case scenario for Obama: If, as expected, he appeals, he gives the LGBT community and disgusted progressive voters another reason to stay home next month.

Should he take advantage of the sixty-day period allowed for appeal, putting off reckoning until after the mid-terms and counting on the lame-duck Senate to pass the repeal measure? Under ordinary circumstances, this approach might have some promise, but not in this case. The problem is that the repeal measure, even if it passes, isn’t a repeal at all, but the result of a compromise “vote-now-repeal-later-(maybe)” approach. (For the repeal to become effective, a host of actors and institutions, apparently including the local Rotary Club, would have to certify that repeal wouldn’t harm military readiness.) Even with this “repeal” law, DADT would remain in effect for the time being, so that the issue of whether to appeal Judge Phillips’s ruling would have to be confronted in any case.

Does it pain me to say that Obama has only himself to blame? To an extent, yes, because I still believe that his deepest instincts are grounded in a basic notion of equality. But too often, those instincts are submerged beneath a cautious political calculus that ends up deferring or defeating the very initiatives he backs. Still no ENDA, no reasonable prospect of DOMA repeal, and now this situation — where even if the Obama DOJ doesn’t appeal, he’ll get, and deserve, only limited and grudging credit.

Well, too bad. That even this flawed measure didn’t get through the Senate is nothing short of appalling, and a sad testament to Obama’s inability to bring his own party to heel (as by slapping down Harry Reid’s parliamentary tricks, which served only to alienate the few moderate Republicans he might otherwise have counted on).

If I’m a gay or lesbian service member, though, I’m not coming out: yet.

  1. Jay
    October 12th, 2010 at 18:11 | #1

    You write above concerning a stay: “Even in that case, they would have to ask for and be granted a stay (both of which would be quite likely) for the injunction to be lifted.” Do you really mean that a stay is quite likely to be granted? Or is that a typo for “unlikely”? If a stay is likely to be granted, why did she issue an injunction in the first place?

  2. October 12th, 2010 at 21:11 | #2

    No, it’s not a typo. The judge is just supposed to decide the case on what she thinks are the merits, and not worry about whether that action might be stayed or overturned by an appellate court. Of course, in reality many judges are quite attuned to the possibility of such second-guessing by appellate courts. But Judge Phillips apparently has the courage of her convictions.

  3. reddragon696
    October 13th, 2010 at 21:24 | #3

    Since Obama has repeatedly stated that DADT must be repealed by the Congress there is no way that he will stop the DOJ from seeking a stay on the injunction and pushing it further up the ladder towards the SCOTUS. I understand his reasoning behind requiring that DADT be overturned by Congress and not by Executive Order, which could be changed with the next sitting president, or by Judicial Order but I feel he has let Gay people down by not publicly pushing harder to get the Congress to do their job and enforce the U.S. Constitution. Even though the majority of citizens feel that DADT should be overturned I don’t really see either Congress or the Military doing it any time soon. I suspect that come December the Military will come up with some illogical reason why DADT should remain on the books.

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