How to End Don’t Ask Don’t Tell–Without Republican Cooperation.

In the UK, gays can both marry and serve in the military. This did not prevent them from fighting alongside Americans in Iraq and Afghanistan.

:: Edit 10/12/10 :: Judge Phillips issued a worldwide injunction on the enforcement of Don’t Ask Don’t Tell. “U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.”

It comes as no surprise to me that the Senate failed to make any headway in abolishing ‘Don’t Ask, Don’t Tell‘ this week. Yesterday, a successful Republican filibuster foreclosed a vote on a bill that would include the conditional ending of DADT, pending a military study and approval by the military and the president. For one, this policy was created and perpetuated by Congress. Federal law, in this case the National Defense Authorization Act of 1993 and subsequent iterations, prohibit anyone who “demonstrate(s) a propensity or intent to engage in homosexual acts” from serving in the military because “it 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.” This is notwithstanding the fact that 22 out of 26 NATO countries allow gays to openly serve in the military, and we trusted those countries to support and back-up our troops in Iraq and Afghanistan.

Second, advancements in civil rights in this country have often come out of the judiciary before legislatures, and popular sentiment, followed. It was the courts, after all, that desegregated schools for African-American children. It was the courts that struck down anti-miscegenation laws (my favorite case) and laws that discriminated against women. We turn to the courts to protect our homes from illegal searches and seizures, and the courts to uphold a woman’s right to an abortion. The courts protect our freedom of speech and of the press. In the arena of gay rights, it was the courts that struck down sodomy laws. It is not a shock that the courts should have to take up the rainbow standard once more and end discrimination against gays in the military.

Earlier this month, federal judge Virginia Phillips of the U.S. District Court for the Central District of California ruled, in Log Cabin Republicans v. United States, that the Don’t Ask Don’t Tell policy is unconstitutional and violates the 1st and 5th amendments after applying an intermediate scrutiny standard. In the absence of Congress affirmatively repealing DADT, this case presents an interesting legal avenue for getting rid of it–the U.S. Government should decline to appeal this ruling.

Two senators, Kristin Gillibrand (D-NY) and Mark Udall (D-CO) have already written Attorney General Eric Holder, urging him to not challenge the ruling (though perhaps the more appropriate target for their letter is Acting Solicitor General Neal Katyal). The idea is that if the ruling is not appealed by the Justice Department, then the judge’s injunction will effectively end Don’t Ask Don’t Tell. This strategy is particularly appealing given the Senate’s inability to move on the issue, and the Republicans cannot filibuster a judicial decision. This would not be the first time this tactic of failing to appeal was used in the service of gay rights. In the Perry v. Schwarzenegger case involving California’s Prop 8 ballot initiative, California officials (though the named parties in the suit) disagreed with the ballot initiative and declined to even defend Prop 8 at trial; instead, the proponents of Prop 8 were allowed to defend it. After Prop 8 was declared unconstitutional by Judge Walker under even the least-stringent rational-basis standard, Schwarzenegger did not appeal the decision that he agreed with from the beginning, and it is possible that the proponents of Prop 8, lacking Article III standing of “personally [suffering] some actual or threatened injury as a result of the other party’s allegedly illegal conduct” (Diamond v. Charles), will not be allowed to appeal Judge Walker’s ruling.

There are a few questions that must be posed regarding this strategy as applied to DADT. First, as the Wall Street Journal asks (but oddly fails to answer), “Does Judge Phillips in fact have the authority to order a nationwide ban on enforcement of the law? According to the LAT article, White & Case’s Dan Woods, who’s representing the plaintiffs, said she does. Others, however, have questioned whether an order can take effect throughout the country, as opposed to just her judicial district in California.” Second, should the Justice Department appeal the ruling? Third, if the Justice Department fails to appeal, does anyone else have standing to appeal it?

Regarding the first question, I’ve found differing opinions. The White & Case lawyer cited above thinks a nationwide injunction would be OK, and presumably if Phillips does in fact issue one, she thinks so as well. According to Law.com, Edwin Chemerinksy, famed constitutional law scholar and current Dean of UC Irvine’s new law school, says that Judge Phillips does not have authority for a nationwide ban.

“Given the position of the Obama administration, there’s a great likelihood he will not appeal the ruling,” Chemerinsky said. “If it isn’t appealed to the 9th Circuit, it has an excellent chance of standing.”

At the same time, he said, the ruling carries no precedential value outside the 9th Circuit’s jurisdiction. As a result, the government could argue that enforcement of the policy is allowed, as long as servicemembers live or are stationed outside the 9th Circuit’s West Coast region.

Moreover, judges in other circuits are not required to follow the order and could rule differently if deciding a challenge to the law, he said.

“She can’t bind other districts or other circuits,” Chemerinsky said.

It would be very unlikely that a third party would have standing to pursue an appeal, he noted, since the case was defended by the actual defendant, the U.S. government.

We know that according to legal hierarchies of authority a district court decision only has precedential value in that district, and a circuit court’s opinion only has precedential value in that circuit. Yet even if other judges are not required to follow her legal reasoning, when would they be in a position to rule differently? It’s unclear whether, as in the Perry case, anyone else would have standing (or if a current military service person could be induced) to sue in order to not serve with homosexual members of the military. I’m also not sure that nationwide injunctions are invalid per se; here are a few examples where district courts have successfully issued nationwide injunctions:

–In overruling Monsanto v. Geerston this spring, the Supreme Court did not mention the inappropriateness of a nationwide injunction as exceeding the district court’s authority. The injunction was overturned because the Court found the lower court did not satisfy the four standards for an injunction.

–In the recent embryonic stem cell case, the judge’s injunction stopped NIH funding nationwide. Maybe that’s because the DHHS is based in D.C. but does that mean if it the trial happened in D.C./NoVa the judge would have been able to issue a national injunction?

–In Ali Ali v. Ashcroft, the 9th Circuit affirmed a Seattle court’s nationwide permanent injunction prohibiting the government from conducting deportations to Somalia.

–In Summers et al. v. Earth Island, the 9th Circuit affirmed a lower court’s nationwide injunction on several Forest Service regulations. The Supreme Court overturned the decision based on standing, and did not reach the question of whether a “nationwide injunction would be appropriate” relief. Still, I feel this shows that a nationwide injunction is not invalid per se; it seems a plausible and not uncommon practice.

–Here are the cases Dan Woods cited as precedent for nationwide injunctions issued by federal district courts (I haven’t looked at them): Lemon v. Kurtzman, NRDC v. Evans (Naval use of sonar), Mukasy v. ACLU (Child Online Protection Act), Rothe Development Co. v DoD.

Of course, I’m not an expert, so I welcome the actual lawyers/law students who may be reading this to chime in. I feel like this issue of nationwide injunctions should be very black and white, and not the open question the media makes it appear it to be. Regardless, even an injunction that covers the 9th Circuit*, including some of the largest military bases–San Diego and Pearl Harbor (Navy), 29 Palms and Camp Pendleton (Marines), Edwards Air Base (Air Force), Fort Irwin (Army), as well nearly half of the Coast Guard districts–would be a good symbolic start.

If the Attorney General is thought of as the prosecutor for the United States, then the Solicitor General may be thought of as her defense attorney. The Attorney General delegates to the Solicitor General the responsibility for supervising all Supreme Court cases for the government; the Solicitor General’s office will represent the government in all those (v.) United States (v.) cases, and file the government’s amicus curiae briefs where the government merely has an interest. Additionally, as LBJ and Nixon SG Erwin Griswold explains, “the Solicitor General must pass upon every case in which a decision is rendered in any court against the government, to determine whether or not to authorize an appeal to some higher court… by far the greater volume consists of cases which the government has lost in district court; the Solicitor General must then decide whether the decision should be appealed to a court of appeals.” Traditionally the SG has enjoyed a great deal of autonomy in making these decisions, and independence from the Attorney General and the President. In this case, of course, their legal ideologies are probably the same.

Although the Solicitor General is charged with defending the laws of the United States, there are two situations in which the SG will not defend an act on Congress, as explained by Clinton administration SG Drew S. Days. The first, which does not apply here, is in cases involving disputes between Congress and the Executive on executive authority; in these cases the SG will traditionally side with the President. The second is when he determines that a law is patently unconstitutional.  Carter administration Solicitor General Wade McCree wrote, “In such cases, the Solicitor General’s Office is called upon to give full faith and credit to the fundamental law embodied in the Constitution, even at the expense of the federal statute.” According to the Ethics in Government Act of 1978, “The Attorney General shall notify the [Office of Senate Legal] Counsel with respect to any proceeding in which… the Attorney General or Solicitor General [chooses] not to appeal any court decision affecting the constitutionality of an Act… within such time as will enable the Senate to direct the Counsel to intervene as a party…” The House may also represent itself in court, with the House Speaker’s legal counsel the functional equivalent of the OSLC. Although there may be some good legal reasons to appeal on unrelated technical matters (in particular, whether the court may hear witnesses/evidence in a facial challenge of constitutionality instead of relying only on the legislative text/history), I think the issue of gay rights is important enough, and has been delayed long enough, that the government should let those slide; after all, this district court’s reasoning will not be binding elsewhere, and the government may appeal in the next circumstance if it comes up.

In a happy coincidence, currently the Democrats control all three interested parties: the Executive/Justice Department, the Senate/Office of Senate Legal Counsel, and the House/Speaker’s legal counsel. If the AG and SG decide, as a matter of law, that DADT is unconstitutional, and choose not to appeal, the Senate and House should also find themselves passing on the opportunity. Thus, the Republican filibuster to prevent the repeal of Don’t Ask Don’t Tell can be circumvented through the courts.

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Misc. Notes: I do have one open question on whether an individual Republican senator may appeal the ruling if the Senate and House do not. There was one case in 1928, Myers v. U.S., where the Court allowed an individual senator to submit an amicus brief opposing the S.G., but he actually represented the Senate majority, and that was before they created the Office of Senate Legal Counsel.

Interestingly, this isn’t the first time a district court has invalidated DADT. In 1994, a district court issued a nationwide permanent injunction against the DoD from discharging personnel on the basis of sexual orientation alone. The Circuit court vacated that injunction, except for the purposes of the plaintiff’s discharge. (Meinhold v. DoD).

*On whether in the absence of a nationwide injunction the District court’s ruling is binding throughout the 9th Circuit, I am assuming here that Chemerinsky was correct. However, I see where people would think that it applies only to the district (as I assumed), so I suppose this argument could be downgraded to the Central District. The symbolism still stands, however.

HT to Grace C., Stephanie D., Rob G., Thomas M., and Matthew S. for their help.

3 thoughts on “How to End Don’t Ask Don’t Tell–Without Republican Cooperation.

  1. Pingback: Declining empire, and saying “no” to exceptionalism. « stone soup

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