Justice Dept does the obvious thing in second DADT case

by on May 7, 2009  •  In Military, Supreme Court

Yesterday, the Justice Department filed its opposition to certiorari in the DADT case involving one of the plaintiffs in Cook v Gates, 528 F.3d 42 (1st Cir. 2008), who had asked the Supreme Court to review the Court of Appeals decision upholding the military's policy. The other 11 plaintiffs asked that the Court not grant review, even though they had  lost. (See below for why)

There is virtually no chance that the Court will take the case, since the precedent for rejecting facial challenges to this policy is unanimous.  Nonetheless, the Department, through the office of the solicitor general, had to respond to the petition.

The most interesting thing about the opp cert brief is that it is the first document related to an lgbt rights issue filed with the Supreme Court by the Obama Justice Department, and so it provides the first glimpse of how the new team will approach gay issues. The answer seems to be – with political savvy.

The brief can perhaps be best described as minimalist. It was clearly crafted to do the least possible damage to future efforts to eliminate DADT either in the courts or in Congress. Although it does state that "[t]he decision of the court of appeals is correct," it successfully ducks the issue of which standard of review the Court should apply in testing laws that discriminate based on sexual orientation, by arguing that military cases are unique. 

The plaintiff had asked the Court to take the case to address what the standard of review should be post-Lawrence v. Texas. The Department argued that "[a]pplying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals properly upheld the statute. …The court's decision upholding [DADT] rested not on its choice of a formal standard of review, but on its strong deference to Congress's judgments on matters relating to the armed forces."

The other plaintiffs in this case asked the Court to deny review so that a better case in a different circuit (Witt v. United States) would not be cut off from further factual development, a strategy that Justice has enabled by declining to seek Supreme Court review of the 9th Circuit decision that the government lost in Witt. Details here.


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