Log Cabin fires back at DoJ over scope of injunction against DADT

by on September 27, 2010  •  In Constitutional law, Military

Imagine that you are a Justice Department lawyer heading to work this morning, about to start a new week.  Only problem is that your job is to direct the government's legal strategy for defending Don't Ask Don't Tell. And given the three weeks you've just had, you're feeling like a chewed pencil.

First, you endured a week-long trial in federal court in Riverside CA, where lawyers representing Log Cabin Republicans made mincemeat of the arguments for retaining the policy. No surprise – the judge ruled against you. Then the LCR lawyers sought broad injunctive relief against your client, the United States, to prohibit any discharges under DADT anywhere in the world.

You responded with the best brief you could come up with, arguing that one federal judge couldn't order the entire federal government to do something, just because the entire federal government was before her as the defendant. But on Friday, the plaintiffs' lawyers filed their response.This new brief argued that the standard for the proper scope of injunctive relief was whatever is necessary to accord a full remedy to the prevailing party. It doesn't look good.

And then, of course, during the same time period, you endured yet another week-long trial in federal court in Tacoma, Washington, and lost again.  This time it was to lawyers for former Major Margaret Witt. You tried to weasel out of the obvious idiocy of forcing an ace flight nurse out of the Air Force by forcing her to admit that she had become involved with a married woman.  But, as he was ruling against you, the judge pointed out that she had been discharged because she was gay, not because the woman she slept with was married. That judge ordered you to process the plaintiff for reinstatement as soon as she passed re-entry tests.

Could things get worse? You betcha. You're going to have to brief the politicals on all the gory details, and they'll probably drag you along when they meet with White House Counsel's office to decide what to do next. How long can you stave off Judge Phillips' order in the Log Cabin Republicans case? Given how bad we looked at trial, do we even want to appeal the Witt case? If we don't appeal Witt, though, have we in effect conceded the whole ball game? Will a lame duck session pull our butts out of the fire?  This is really no fun.

Maybe criminal prosecution wouldn't be so bad after all…


2 Responses to Log Cabin fires back at DoJ over scope of injunction against DADT

  1. Jay September 30, 2010 at 7:47 PM

    Any estimate as to when Judge Phillips will issue her final judgment? Is it likely that she will enjoin the Department of Defense from enforcing DADT during an appeal?

  2. Nan Hunter October 5, 2010 at 1:53 PM

    i think it will be soon, although there is no way to know when. It’s just another guess, but my hunch is that she will stay the injunction pending appeal.

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