DOJ offers full-throated defense of DADT in court

There’s no indication that the Obama administration is moving forward on the President’s promise to repeal Don’t Ask, Don’t Tell this year. In fact, all of the evidence is to the contrary – Barney Frank recently said about the White House’s approach to repealing DADT: ”They’re ducking. Basically, yeah, they’re not being supportive.” But, the Department of Justice is aggressively defending the constitutionality of the law, even though they don’t have to. The latest example is a case brought by Log Cabin Republicans (LCR) back in 2004.

DOJ asked for summary judgment, in order to throw the case out. It’s strongest argument is a challenge to the standing of LCR. But, as in the DOMA brief (that invoked incest and pedophilia as a reason the court shouldn’t overturn DOMA), DOJ had to go the extra mile to show just how valid the DADT law is. It’s hard to miss the section titled:

Because Congress Could Rationally Have Concluded That The DADT Policy Is Necessary To Maintain Unit Cohesion, Accommodate Personal Privacy, and Reduce Sexual Tension For Military Effectiveness, LCR’s Facial Due Process Challenge Fails

They only right-wing talking point they left out is the “we’re in two wars” argument.

You’d think by now the Obama administration would have figured out a way to finesse its legal arguments on issues like this this. In fact, you’d think the President would be using his Dept of Justice to fight the constitutionality of DOMA and other legislation that impinged on the civil rights of our citizens. Remember what we learned during the DOMA brief debacle — the administration can oppose laws that it finds unconstitutional. But when it comes to gays and lesbians, the administration chooses not.

John and I are going through the brief right now, but on particularly egregious portion cites the 1993 testimony of Colin Powell:

General Powell testified that homosexual conduct in units “involves matters of privacy and human sexuality that, . . . if allowed to exist openly in the military, would affect the cohesion and well-being of the force.” 1993 WL 2866446 at 281. He further testified that “it would be prejudicial to good order and discipline” if the military required heterosexuals and persons who demonstrate that they do or are likely to engage in homosexual acts “to share the most private facilities together,” id. at 283, and that “[c]ohesion is strengthened or weakened in the intimate living arrangements we force upon our people. . . . In our society gender differences are not considered conducive to bonding and cohesion within barracks living spaces.” Id. at 278.

That was 1993. Now, the Obama administration’s Dept. of Justice may be stuck in 1993, but in 2010, General Powell thinks the law should be repealed:

“In the almost 17 years since the ‘don’t ask, don’t tell’ legislation was passed, attitudes and circumstances have changed,” General Powell said in a statement issued by his office. He added: “I fully support the new approach presented to the Senate Armed Services Committee this week by Secretary of Defense Gates and Admiral Mullen.”

“Attitudes and circumstances have changed.” But, the President Obama’s DOJ is still vigorously defending the underlying policies from 1993 to make its legal case — they’re still arguing that gay service members hurt unit cohesion at the same time they claim they want to lift the ban. And they’re using people who have already recanted on their previous bigotry.

Here’s another example where the administration is happy to parrot the bigoted arguments used to pass DADT in the first place:

The Ninth Circuit in Philips continued by acknowledging that “we cannot say that the Navy’s concerns are based on ‘mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable’ by the military. Nor can
we say that avoiding sexual tensions lacks any ‘footing in the realities’ of the Naval environment in which Philips served.”

Ah, so anti-gay prejudice isn’t just based on fear or negative attitudes. That’s helpful.

Then there’s the “barracks and showers” argument, aka “forced intimacy. The Obama administration had a field day with that one.

These rules are necessitated by, among other things, “[t]he worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely [which] make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.” Id. § 654(a)(12). Congress’s policy judgment culminated, as noted, in its finding that “[t]he presence in the armed forces of
persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

It goes on, a lot. Like the pages where the Obama administration tries to minimize the impact of the historic Lawrence v. Texas case. It’s probably our most significantly legal victory in decades, if not ever. Just as in the DOMA brief, the administration is attempting to limit our ability to use other legal victories to expand our civil rights. That is simply unacceptable. They should be on our side, not fighting to thwart our civil rights challeneges.

If only the people charged with ending DADT, starting with White House Deputy Chief of Staff Jim Messina, were as assertive and aggressive as the lawyers at DOJ who defend the law. As Richard Socarides, a former senior advisers to President Clinton put it:

They seem to have a pretty strong plan to defend the law, and no plan whatsoever to repeal it.

The DOJ brief is below. I’m sure the usual apologists will jump to the defense of the Obama administration, even as it becomes more and more clear that the Obama administration has no intention of working to repeal DADT, or enacting ENDA, or repealing DOMA. This also begs the question of what the DOJ’s LGBT liaison, Matt Nosanchuk, does all day. Didn’t this set off some warning bells? Perhaps he has as much sway as the LGBT liaison at the White House, Brian Bond — which isn’t much.

We did not elect a Democratic president so that he could go to court and undercut our most important civil rights cases.

Dept. of Justice Defends Don’t Ask, Don’t Tell policy http://d1.scribdassets.com/ScribdViewer.swf

Don’t Ask, Don’t Give.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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