Log Cabin Republicans attorney Dan Woods
UPDATE: Dan Woods, attorney for the Log Cabin Republicans, says this new DOJ brief is “is a major change in the government’s position.” The Justice Department just filed their 59-page brief in the case of Log Cabin Republicans v USA. According to attorney and SLDN boardmember Tom Carpenter, the DOJ asked the 9th Circuit Court of Appeals to reverse the decision by District Court Judge Virginia Phillips, who has ruled that the antigay Don’t Ask, Don’t Tell is unconstitutional. The DOJ also asked the 9th Circuit to invalidate Phillip’s worldwide injunction against enforcement of DADT – which the 9th Circuit has stayed as the case continues. UPDATE: Dan Woods, lead attorney for the Log Cabin Republicans, just emailed this MAJOR UPDATE TO HIS EARLIER STATEMENT:
“The government’s brief is stunning for what it does not say. As we expected, it argues that Log Cabin Republicans lacked standing to bring the case and that Judge Phillips lacked authority to issue a world-wide injunction; Judge Phillips’s 85-page decision from October 2010 covered these points in great detail and we are confident that the government’s arguments on these points will be rejected. The government’s only other argument is that the recent repeal of Don’t Ask, Don’t Tell was constitutional but that was not an issue tried before Judge Phillips and was never part of the government’s case before. The government’s brief does not address the due process or first amendment issues on which Judge Phillips based her decision or the standard of review applicable to our challenge to the constitutionality of Don’t Ask, Don’t Tell. By not arguing merits of the constitutionality of Don’t Ask, Don’t Tell, the government’s brief, by its silence on these issues, is effectively conceding that Don’t Ask, Don’t Tell was and is unconstitutional. While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don’t Ask, Don’t Tell is constitutional. This is a major change in the government’s position.” (Emphasis mine)
R. Clarke Cooper, Log Cabin Republicans Executive Director, issued this statement:
“Once again, President Obama has abdicated his responsibility in ending the failed and unconstitutional ‘Don’t Ask, Don’t Tell’ policy. The Department of Justice’s continued defense of this case and its appellate tactics seek to obfuscate the issues and facts of this case. Log Cabin Republicans represents countless Active Duty, Reserve and National Guard servicemembers who are under the peril of a policy that seeks to advance discrimination over national security, which is why we went to court to argue this exact matter. This position is particularly difficult at a time when DOD commanders are ready to implement open service and open recruitment. When applying different standards between the government’s position in regards to the Defense of Marriage Act and ‘Don’t Ask, Don’t Tell,’ what makes one indefensible and the other appropriate discrimination.”
Carpenter says:
“I concur with Dan, that the Government in its open brief concedes the unconstitutionality of DADT by omitting to even address Judge Phillips’ decision on the most important issue in the case.”
Earlier Woods wrote:
“Am just now reading it. As expected, the government argues about standing at the beginning and, at the end, argues that the worldwide injunction exceeded the court’s authority. No surprises in those sections. What is odd is section II. It does not appear to argue that DADT is or was constitutional. It does not address the due process or first amendment issues. It does not even address, as far as I have been able to tell so far, the government’s position on the appropriate standard of review. Instead, it argues that the orderly repeal process is constitutional, which was not an issue before Judge Phillips.”
In a story earlier in the day in MetroWeekly, Chris Geidner reported that White House press secretary Jay Carney suggested that President Obama had not told the Justice Department to stop defending DADT in federal court. There has been speculation that Attorney General Eric Holder might tell DOJ attorneys to stand down in the same or similar fashion to the decision to no longer defend the Defense of Marriage Act.
UPDATE: GEIDNER HAS AN ANALYSIS OF THE DOJ’S BRIEF:
“As suggested this afternoon by White House Press Secretary Jay Carney, the Department of Justice has filed its brief defending “Don’t Ask, Don’t Tell” in Log Cabin Republicans v. United States.
It has done so, though, in a rather remarkable way: It changed the question of what the lawsuit is. Noting that “[t]he repeal process is well under way,” the government argues that the appellate court should not be deciding whether DADT is constitutional but should instead be deciding whether the DADT repeal process is constitutional.
The government, in fact, doesn’t even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.”
AP’s Lisa Leff has posted her story as well. Here’s an excerpt:
“The request was made in the government’s opening brief challenging a Southern California trial judge who in September declared the “don’t ask, don’t tell” policy unconstitutional.
“This case is thus now in a different posture,” Assistant Attorney General Tony West wrote for the administration. “That statute is now undergoing a repeal process subject to a more recent law duly enacted by Congress and signed by the President.”
The relevant question now before the 9th Circuit, West maintained, is not whether “don’t ask, don’t tell” is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal.”
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With great respect for Mr. Woods, WHY would they include a single SENTENCE about the “constitutionality” of DADT in this brief, let alone the following paragraph, if it was their intent to, therein, assert the contrary?
“Before Congress enacted the Repeal Act and established an orderly process to repeal § 654, all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of § 654 against both substantive due process and First Amendment challenges. As we noted in our stay motion, “the ‘detailed legislative record’ that Congress assembled in enacting § 654 ‘makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security.’” Gov’t Stay Mtn. 9 (quoting Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008)). As our stay motion also noted, this Court sustained the facial constitutionality of the prior, more restrictive version of the policy in Beller, and the validity of that holding was not altered by this Court’s later decision to apply heightened scrutiny to § 654 in Witt, which involved an as-applied challenge. See Gov’t Stay Mtn. 10-11.”
ENOUGH trying to read between the lines of what Obama, Inc., “means.” They have finally been unequivocal in saying they believe DOMA is unconstitutional [despite shamelessly choosing to continue to enforce it even more broadly than the Circuit judge in the Karen Golinski case said they need do]. Until they at least explicitly say the same re the ban, I’ll have none of this mindreading, thank you.
Regardless of what they THINK, as gay retired Rear Adm. Al Steinman has noted, it is vital that we attempt to get the unconstitutionality of the ban nailed down by THE COURTS not just the maybe opinion of a temporal DOJ in order to prevent future administrations from reinstituting the ban in some form. And, no, we must NOT forget that the only reason that is necessary is that Obama, Inc., insisted the Military Readiness Enhancement Act which would have created a FEDERAL LAW banning gay discrimination of any kind by the military be gutted.
This bizarre brief is but further evidence of the pandemic of Multiple Personality Disorder in the Obama Administration.
I wonder why the part about the constitutionality of the repeal process… Are they saying the Court should find it unconstitutional that the Congress has not actually repealed the law itself, but set up the process and said to the armed forces “Repeal it if you want to”??? Is the White House implying its unconstitutional?
A smart friend of mine just wrote me this in response to your question:
“There is no issue regarding the constitutionality of the repeal process raised by the government’s brief. That cannot be addressed by the 9th Circuit Court of Appeals because the Congressional repeal process happened after the LCR trial and is not part of the record. Remember the Court of Appeals only looks at the written record of the trial court and briefs submitted by the parities and any amici(friends of the court). This court takes no testimony, considers no outside evidence and doesn’t address issues that were not part of the underlying trial.”
Hi, Karen!
See rule 15.2. Nothing similar for the Federal Courts (that I know, but what do I know, right? LOL!)
http://www.law.cornell.edu/rules/supct/15.html
Thanks for the added info!
You can find the brief here:
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000492
Basic argument of DOJ:
Doesn’t matter whether the law is substantively constitutional or not, because of pending repeal. That is, whatever the court ruled on that question, we’d just ask for a stay, until such time as we completed an orderly transition to The New World Order for men and women in uniform (which is going to be the best evah!). So, the court doesn’t really need to rule on that question.
So, walk with us, a little while longer, M. Justice, and Ce-Lo forget-you those piggy plantiffs, who shouldn’t have shown up to court dressed like they have standing and that Other Judge who was having a bad hair day when she tried to rule the world with her injunction.
QED.