Thursday, October 14, 2010

DADT Injunction: Why the Sky Won't Fall

Jason Mazzone

Today, the Department of Justice filed an emergency application with Judge Virginia Phillips to stay, pending appeal, the injunction she issued on Tuesday against enforcement of Don't Ask, Don't Tell. The DOJ's basic argument is that DADT should be ended through the continuation of the repeal process that is already underway rather than by court decree. The DOJ says in its brief: "The precipitous changes required by the injunction would prevent the military from developing the necessary policies and regulations, and from conducting the necessary training and education of the force, to successfully adapt to the end of DADT." Among other things, the DOJ notes that ending DADT requires the Department of Defense to amend its policies governing personnel benefits, equal opportunity rules, and anti-harassment standards. And, the government says, if Judge Phillips is reversed on appeal, it will have to change all of those things again. According to the government, without a stay of the injunction there will therefore be disruption and confusion that will undermine military readiness.

Given that Judge Phillips hasn't thought much of the government's arguments so far, I think she will deny the application. The Administration will then go to the Ninth Circuit with the same request for a stay of the injunction.

Setting aside whether Judge Phillips' holding that DADT is unconstitutional was correct, the injunction might actually have little immediate effect. Here is why: It would be foolish for gay and lesbian service members to come out to their commanding officers before the case is reviewed on appeal (or before Congress ends DADT itself). Service members cannot be discharged while the injunction is in place. But given the reasonable possibility that Judge Phillips will be reversed on appeal (and that Congress will be slow to repeal the law), this reprieve may be temporary. In light of these uncertainties, gay and lesbian service members themselves have an interest in maintaining the status quo.

Immediately after Judge Phillips issued her injunction, the Servicemembers Legal Defense Network (a prominent organization seeking the end to DADT ) issued a notice that "Don't Ask, Don't Tell is still in effect" and advising service members not to do anything in response to the injunction because they remained in jeopardy of discharge. That's sound advice. Gay and lesbian service members will likely follow it while the process continues in the courts and in Congress. And so the sky won't fall.

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