Department of Justice will No Longer Defend DOMA; Obama Says DOMA Is Unconstitutional

This is some good news. From the site, Prop 8 Tracker, they received a statement from the DOJ about DOMA.

Adam Bink highlighted this key piece:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.  We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.  I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.  The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

Also included in their post is a letter from Attorney General Holder to Speaker Boehner.

Now to be clear, this doesn't end DOMA. Congress will need to do that, but the DOJ will no longer defend it.

I'm sure there's more to come on this story.

Department of Justice filed its defense of DOMA

Yesterday, the Department of Justice filed its defense of DOMA in the U.S. Court of Appeals for the First Circuit.

Chris Geidner helps break it down:


In its defense of the 1996 law, the government today stated:

DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states.

When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society. That recognition has prompted ongoing dialogue and change in many states, with some states opting to authorize same-sex marriages and other states opting for other forms of legal recognition for same-sex couples, such as civil unions and domestic partnerships. Still other states have reexamined their legal systems and reaffirmed their support of their preexisting concept of marriage and provided that their constitution or laws authorize only marriages between a man and a woman. In the end, the large majority of states today do not recognize same-sex marriage.

Despite that "ongoing dialogue," the government asserts three reasons to justify DOMA's continued validity:

1.    Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2.    Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3.    Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

If you would like to read the brief, please go here

WATCH Valerie Jarrett explain the DOJ's stance of the DADT Injunciton

Valerie Jarrett tries explain the whole drama besetting around DADT, the laws and the crazy process

DADT Drama: 9th Circuit has issued a temporary stay of the DADT Injunction

There's no need to explain.
Here's the news from Metro Weekly

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay of U.S. District Judge Virginia Phillips's Oct. 12 order in Log Cabin Republicans v. United States halting all enforcement of the military's "Don't Ask, Don't Tell" policy.
After DADT had been halted from enforcement for nearly 200 hours, the Ninth Circuit order legally makes DADT enforceable again for the time being.

In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal.  The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010.  To expedite consideration of the motion, no reply shall be filed.

The judges' order means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide -- sometime after Oct. 25 -- whether to issue a stay pending the appeal of the case to the Ninth Circuit.

This does not immediately change the military's policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, "the Department of Defense will abide by the terms of the injunction" and stated that "additional guidance" would come if a stay is granted.

This also is not a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide -- sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request -- whether to issue a stay pending the outcome of the appeal. The decision will likely come soon after the Oct. 25 submission by LCR because the court will not hear oral arguments in the case and stated in its order that the government will not be allowed to file a reply brief, which would happen in the ordinary course of appellate briefing.

If a stay is granted pending the appeal, however, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

More to come, y'all, more to come.

DOJ Appeals the DADT Stay Request to the 9th Circuit

Not unexpected, the DOJ appealed the DADT stay request today. I will give you Chris Geidner's take on this measure:

In its filing -- in which DOJ lawyers say that Phillips's order is "at odds with basic principles of judicial restraint" -- they make the following request:

We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.

The request likely will be heard by the "motions panel" for October, which is Judges O'Scannlain, Trott, and W. Fletcher.

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.
DOJ then argues, "The government has also shown a likelihood of success in its argument that the district court erred in ruling § 654 [the DADT law] unconstitutional on its face."
Finally, DOJ argues that the remedy -- the worldwide injunction against all enforcement of DADT -- is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

Please read the file
DOJ DADT Stay Request

Judge Virginia A. Phillips ain't hearin' it, DOJ

Judge Virginia A. Phillips denied the DOJ’s request for a stay of the injunction against DADT.

The Advocate reports:

Phillips, who ruled DADT unconstitutional in September, wasted no time in rejecting the government's position that ending the policy immediately would be an undue burden on the military, calling the arguments "vague" and "insufficient."


Assistant U.S attorney Paul Freeborne asked the court for a five-day administrative stay so the government can pursue an appeal of Phillips's injunction with the U.S. court of appeals for the ninth circuit. He argued that a "precipitous implementation" of an injunction against the 17-year-old policy will have a significant negative impact on military readiness. 

She will dish the final ruling today.

The Justice Department has asked for a Stay on Judge's injunction barring DADT

Interesting news in Washington!

Moments ago, the Obama Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. From the Advocate’s Kerry Eleveld:


Sources said Justice Department attorneys are expected to file the request to U.S. district judge Virginia A. Phillips in Riverside, Calif. this afternoon.


Should Phillips deny the request for a stay, government attorneys are expected to file an emergency request to the U.S. court of appeals for the ninth circuit.


Repeal advocates have argued that while the Department of Justice has an obligation to defend existing law, “it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.”

We will continue to see how this goes.

DOJ appeals DOMA

DOJ appealed DOMA yesterday. Here's the scoop from Metro Weekly:

In a move expected by most legal observers, the U.S. Department of Justice this afternoon filed notices of appeal in two cases striking down the federal definition of marriage, contained in the Defense of Marriage Act, as unconstitutional.

U.S. District Court Judge Joseph Tauro had ruled on July 8 in the cases, Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services, that Section 3 of DOMA was unconstitutional on several grounds, finding that the marriage definition violated the equal protection and due process guarantees, as well as the Spending Clause and Tenth Amendment.

Gay & Lesbian Advocates & Defenders, which argued the Gill case on behalf of the plaintiffs, issued a statement moments after the government's filing.
"We fully expected an appeal and are more than ready to meet it head on," Mary L. Bonauto, GLAD’s Civil Rights Project Director, said in the statement. "DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits. We are confident in the strength of our case."

The White House issued no comment on the filing and directed questions to DOJ.
The filing of the notice means that the record of the trial court case will be sent to the U.S. Court of Appeals for the First Circuit. Once the record is complete, DOJ will have 40 days to file its brief. GLAD or Massachusetts, depending on the case, will then have 30 days to file its brief. The government then has 14 days to file a reply brief.

Okay, got it. However, this is causing gays to fall out in fits. The National Stonewall Democrats laid some Real Talk carpet on this cold floor.

“Today’s filing is just that: a filing. No new legal arguments were made and nothing was argued before the court. There are those in the community who will call for the Department of Justice to not appeal the lower court ruling on the Defense of Marriage Act (DOMA) at all, but doing so would mean that the ruling would stand and affect only people living within the District of Massachusetts. In order for the ruling to overturn DOMA nationwide, it needs to be won in a higher court and the way for it to be heard in the higher court is for it to be appealed by the Department of Justice.

“The midterm elections in three weeks offer a stark reality for LGBT and ally voters. We can elect candidates who believe, like we do, that DOMA should be repealed or we can elect those who don’t. The fastest way for DOMA to be repealed is to elect pro-equality candidates committed to its repeal. And given the fact that the Republicans stated in their ‘Pledge to America’ that they are against marriage equality, I think it’s fair to assert that only pro-equality Democrats will get the job done.”

We will see how this turns out. But y'all know me, I'm not throwing a fit until the fat lady sings.

Federal Judge Virginia A. Phillips tells Department of Defense to suspend DADT enforcement

District judge Virginia A. Phillips has ordered the Defense Department to "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding" of gay soldiers. Here's the low down from The Advocate.

The text of Phillips's order:

(1) DECLARES that the act known as "Don't Ask, Don't Tell" infringes
the fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights
guaranteed under the Fifth Amendment to the United States Constitution, and
(b) the rights to freedom of speech and to petition the Government for redress
of grievances guaranteed by the First Amendment to the United States
Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America
and the Secretary of Defense, their agents, servants, officers, employees,
and attorneys, and all persons acting in participation or concert with them or
under their direction or command, from enforcing or applying the "Don't Ask,
Don't Tell" Act and implementing regulations, against any person under their
jurisdiction or command; 
(3) ORDERS Defendants United States of America and the Secretary of
Defense immediately to suspend and discontinue any investigation, or
discharge, separation, or other proceeding, that may have been commenced
under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its
implementing regulations, on or prior to the date of this Judgment. 
(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for
attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412; and
(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion
for costs of suit, to the extent allowed by law. 

 The next step is from the DOJ.

Robert Gibbs responds to DOJ/DADT issue

Today, the Department of Justice made a filing in a legal challenge to the Don’t Ask, Don’t tell (DADT) policy, as it traditionally does when acts of Congress are challenged. This filing in no way diminishes the President’s firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy. The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold. The President spoke out against DADT in his first State of the Union Address, and the Secretary of Defense and the Chairman of the Joint Chiefs have both testified in support of repeal. And the Department of Defense continues to work on a plan on how to implement repeal. The President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall.

source

DOJ Response to Log Cabin Republicans suit against DADT

From The Advocate:

The Department of Justice issued a request Thursday to a U.S. district court judge asking to keep enforcing the military's ban on gay and lesbian service members, challenging a request to stop its enforcement.

In a 14-page brief, Justice Department attorneys argued a permanent injunction against enforcing the 17-year-old law —one supported by Log Cabin Republicans, which challenged DADT in federal court —would be "untenable."

"[A]ny injunction in this case must be limited to plaintiff LCR and the claims it asserts on behalf of its members – and cannot extend to non-parties – plaintiff’s requested  world-wide injunction of the statute fails as a threshold matter," assistant U.S. attorney Paul Freeborne wrote.

Freeborne also argued that an injunction would preclude the government both from litigating other legal challenges to DADT or considering the terms of a stay barring discharges of gay and lesbian servicemembers. 

Here's the brief
DOJ's Response to LCR's DADT Injunction More to come