Today, the Log Cabin Republicans filed their response to the Department of Justice’s Emergency Order for a Stay. As we all know, the Ninth Circuit temporarily granted the DOJ’s motion last week. LCR had until today to respond.
Here’s the introduction:
The district court’s prohibitory permanent injunction was entered following a full two-week trial on the merits and supported by an 85-page Memorandum Opinion, an 84-page set of Findings of Fact and Conclusions of Law, and a 15- page reasoned Order Granting Permanent Injunction. It does not require the appellants to take any affirmative steps, nor does it require them to refrain from taking any of the steps they argue that they must take if they are to avoid irreparable injury. The district court’s injunction requires only one thing: that the government discontinue all investigations and discharge proceedings that have been commenced under the “Don’t Ask, Don’t Tell” statute, 10 U.S.C. § 654, and its implementing regulations (“DADT”).
The government made no showing to the district court, and makes no showing here, either that it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district court’s judgment remains in place pending determination of this appeal. By contrast, the district court conducted a careful, extensive analysis of the law, at every stage of the proceedings below. It concluded, after a full trial at which it heard testimony from over 20 witnesses and received over 100 exhibits in evidence, that DADT causes irreparable harm to servicemembers by its very existence and implementation, subjecting them to investigation and discharge, and chilling their First Amendment rights of free speech and petition, while actually impairing unit cohesion, morale, and discipline – the very factors that supposedly justify DADT. The district court’s decision was not a political one, nor an instance of “judicial activism”: it was compelled by the evidence before it, presented at a full trial conducted under our adversarial litigation system.
Every day that the government remains free to implement the Don’t Ask, Don’t Tell policy, American citizens’ Constitutional rights are violated. The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail. The motion does not meet any of the factors for a stay pending appeal, and it should be denied.
SLDN, Servicemembers United and Lambda Legal have filed an amicus brief supporting LCR’s position.
DOJ’s actions in this case have caused a huge backlash — and this issue has certainly captured the attention of the traditional media. The Obama administration and its DOJ do not have to defend DADT. They know it. We know it. They’ve lost control of this issue.