Tuesday, October 12, 2010

Legal Commentary: Gay Rights II

Following up on this update is today's story:

Brushing aside Obama Administration arguments that a federal judge could issue only a narrow, limited order against the Pentagon’s “don’t ask/don’t tell” policy against gays in the military services, U.S. District Judge Virginia A. Phillips on Tuesday issued a nationwide ban on any enforcement, ordering an immediate stop to any investigations of gays now going on and halting any discharges that were being planned. In a 15-page bench memo. she explained her rejection of most of the government’s arguments against a sweeping order. The text of her final order is here.

The judge, acting in the case of Log Cabin Republicans, v. U.S. and Gates (docket 04-8425), also refused an Administration request to postpone the effective date of her order to give officials more time to plan their reaction and to ask for a formal delay of the order while they pursue an appeal. The judge said she had three times turned down pleas for delay, and concluded that no new arguments had been made this time for a postponement. That left the government with the option of asking the Ninth Circuit Court to put the Phillips ruling on hold temporarily.

This is the second Federal ruling against Don't Ask Don't tell, and is a much broader repudiation of the law than the Witt ruling ordering the reinstatement of someone fired under the ban.

The important part of this story, however, is that there is a 60 day window for the Obama administration to appeal the decision:

Justice Department spokesperson Tracy Shmaler would only say the department is "reviewing the ruling." The department has 60 days to appeal, but is not required to do so.

Seeing as the Don't Ask Don't Tell repeal was lost under the threat of a filibuster from John McCain (Mr. "If the generals recommend it" and "that's not the policy"), and seeing as the Democrats will almost certainly have less seats in the Senate before the long-awaited policy review that Republicans have been using as a stalling measure, this is an open invitation for Obama to take quick action that Americans very much are in favor of (54% say it should be repealed, and 60% say we need it now because of the wars we're fighting).

In addition, as I pointed out before, there's a whole slew of decisions headed towards the Supreme Court about Gay Rights: Prop 8, DOMA, and DADT; DOMA and DADT have at least two major rulings against them each.

If I was in the military and I were gay, this is when I'd come out (even though the Log Cabin Republicans, who won this victory, advise caution). Imagine if the estimated 66,000 gay members of the military (2%) came out in the 60 day window that the Obama administration was using to consider whether or not to appeal. Since, legally, they are currently protected, the Obama administration would have, on the one side, an incredible logistical and legal crisis (attempting to discharge all of those soldiers, hundreds of counter-suits, etc.), or on the other side the new status quo that everyone except some 41 senators in Congress wants to bring into effect.