The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction

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Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, the Attorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains what this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom Read more →

California Supreme Court To Hear Perry Prop 8 Question

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The breaking news out of the California Supreme Court is that they WILL entertain a full merits consideration of the question certified to them by the 9th Circuit in the Perry v. Schwarzenegger appeal. From the LA times:

The California Supreme Court decided Wednesday to determine whether the sponsors of Proposition 8 have special authority to defend the anti-gay marriage initiative in court.

The state high court, meeting in closed session, agreed to a request by the U.S. 9th Circuit Court of Appeals to determine the status California law gives initiative sponsors.

The court was unanimous in deciding to accept the case. The court’s order set an expedited briefing schedule to permit a hearing by “as early as September.” The court must rule on a case 90 days after oral argument.

A panel of the 9th Circuit has indicated it would have to dismiss an appeal by proponents of Proposition 8 on procedural grounds unless the California court determines that the initiative’s sponsors have legal standing. A procedural ruling would not affect gay marriage outside of California.

This is fantastic news, even though it was pretty much expected in the legal community. The California supremes simply would have taken far too much grief if they had punted without answering the question at all and leaving the 9th Circuit hanging. That was not going to happen, and it didn’t.

Now the question is how will the Supreme Court decide the question of whether the Proposition 8 sponsors have standing? That is unclear, but the smart early money would be that the court will indeed find standing based on the tenor of their consideration of Strauss v. Horton. Strauss was a consolidated decision of three different suits originally filed after the passage of Proposition 8, and in it the court gave some weight and deference to the initiative’s sponsors and voters. giving standing to the Prop 8 sponsors would also seem to be in line with other cases that have upheld the initiative process in California over the years.

The full text of the order, including the briefing schedule, is as follows:

The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted.

For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively “Proponents”) are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).)

In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18.

Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011.

The court does not contemplate any extension of the above deadlines.

9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Teh Gay Are Stealing the Rainbows! Who Will Protect Richie Blackmore?

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Alright, this is a quick hit because it is so freaking absurd. And it flat out cracks me up. Do these dogmatic conservative religious nutjobs ever stop to think how completely insane they sound? No.

Via Jillian Rayfield at TPM:

Becky Yeh of right-wing American Family News Network’s OneNewsNow, a product of the American Family Association, writes that Morse says “the rainbow is a sign of God’s covenant with man.” Morse told ONN: “Proposition 8 was passed by a great grassroots coalition that included people from all across the religious traditions, and also people of every race and color. We are the real rainbow coalition. The gay lobby does not own the rainbow.”

Morse continued: “We can’t simply let that go by. Families put rainbows in their children’s nurseries. Little Christian preschools will have rainbows…Noah’s Ark and all the animals…. Those are great Christian symbols, great Jewish symbols.” She also described how she wore a rainbow scarf to the Prop 8 hearings to show that anti-gay marriage activists still own the symbol.

You know, I don’t recall them specifically citing the theft of rainbows, but this is literally about the same kind of stupid shit argued by Charles Cooper, Andy Pugno and their battery of genius bigots attorneys in and around the Perry v. Schwarzenegger Prop 8 trial.

They’re all ripping off Richie Blackmore.

Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog

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Liberty & Justice by Mirko Ilic

See bmaz’s intro explaining what will go on during the hearing here. Follow along on CSPAN and California Channel.

[This graphic is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

We’re doing the standing question now. Defendant-Intervenor’s Cooper is up. First question notes that the opinion they’re relying on preceded another opinion which shot it down.

Judge asks for a federal precedent.

“Your honor, I don’t have a case.”

Are you aware of any CA law which states that proponents do have standing?

Cooper: Strauss.

Strauss doesn’t talk about proponents as agent of the state.

Did you seek injunction to get AG to appeal?

Cooper: No.

If AG has power to do it wouldn’t that have been a way to ensure your ability to seek standing.

Reinhardt: Didn’t someone else do that?

Cooper: That wasn’t us.

Cooper explains how NJ Supreme Court decision led to standing in another federal case, Forsythe, which is the argument he’s making here.

Cooper: No one else would defend constitutionality of the statute in Strauss were these proponents. In that case, I hasten to add, CA SC denied intervention status to another group. In Strauss case, at Court of Appeals level, not in Strauss cases, marriage cases, the court of appeals denied intervention to a group that was not the official proponents but stated that “we make no ruling wrt whether under our law official proponents would be authorized in default of state officials would be authorized in representing state’s interests in state statute.”

Reinhardt: One more detail about court ruling–did court deny?

Cooper: I don’t know.

Reinhardt: better to say you don’t know than to guess.

Robert Tyler: Plaintiffs think justice served where appellate rule is frustrated. Read more →

Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more →

Prop 8 Judge Tells H8ters to Get Lost; Denies Motion to Disqualify

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Liberty & Justice by Mirko Ilic

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
…
It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an Read more →

Excellent Panel Announced for Perry Prop 8 Appeal

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When the appeal in Perry v. Scwarzenegger was initially lodged, I put forth the possibility that the panel assigned to hear the full merits appeal in December might be the earlier panel of Judges Wardlaw, Fisher and Berzon, which had heard substantive interlocutory appeals from the trial portion of the case when it was in Judge Vaughn Walker’s court. This was an exciting possibility as it would be a very favorable panel. That is not to be; however, the panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling.

Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith. Stephen Reinhardt is the living epitome of an old school dyed in the wool liberal; you simply could not ask for a better man. Mike Hawkins is also an excellent judge and, although not quite as liberal as Reinhardt, should be expected to have little patience for the poorly fleshed out case the defendant-intervenors put on in the trial in front of Walker or that they belligerently reargue on appeal as if they never lost. N. Randy Smith, on the other hand, is a very conservative judge from Idaho, of Brigham Young University heritage both undergraduate and law school, and was appointed by George W. Bush. Smith is not so promising.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

As a reminder, the oral argument on the Perry appeal is scheduled for 10:00 am PST Monday December 6, 2010 – one week from today. Marcy and I will be live blogging it and, incredibly, it is currently set to be televised on, among other stations, CSPAN. So, one and all can watch this historic argument and join in the discussion!

Ballots and the Bench: The Iowa Judges

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In a devastating night for Democrats, there was a notable and disturbing loss that did not draw enough attention, that of the so called “Iowa Judges”. From NPR:

Iowa voters decided to remove three State Supreme Court justices who’d overturned an Iowa ban on same sex marriage last year. Out are Iowa Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. The full seven member panel unanimously rejected the law but not all members faced a retention vote.

No, not all seven Iowa Supreme Court judges were removed, but of the only three that were up for retention votes, all were ousted. Last year, all seven members of the Iowa Supreme Court voted unanimously to overturn the Iowa law restricting marriage to between a man and a woman as violative of the constitutional right of equal protection. The conservative effort to remove the judges who had the courage to protect equality under the Constitution was an astounding result in what are normally perfunctory state judicial retention votes. So perfunctory, in fact, that no Supreme Court justice had ever been removed in Iowa since the advent of the retention vote system in 1962.

The effort to oust the Iowa Judges was heavily financed, to the tune of approximately a combined million dollars, by aggressive national anti-marriage equality groups such as the American Family Association. The Campaign for Working Families and the Washington-based Family Research Council, as well as a plethora of local fundamentalist and religious groups in Iowa.

Sadly, this is probably one of the least discussed, yet most pernicious, aspects of monetary influence in political campaigns in the wake of the much discussed Citizens United decision by the US Supreme Court. Although judicial retention elections, being non-partisan in nature, were not directly affected by the Citizens United decision to the degree normal partisan elections were, the sheer scope of large money injected will clearly have an increasing impact on them, as will this remarkable result in Iowa.

Courtrooms, especially those of the appellate level, should be places where constitutions, both state and federal, reign supreme and the rights of all citizens are respected and protected without regard to the vagaries and whims of interst groups and fundamentalist bigots of any striping. The wild success of the conservative effort to remove the Iowa Judges signals a disturbing trend in the wrong direction.

Obama DOJ Moves 9th Circuit To Stay DADT Ban

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Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than Read more →