DADT Repeal, Not a Done Deal

Yesterday, U.S. District Court Judge Virginia A. Phelps overturned Don't Ask, Don't Tell after a trial, finding that allowing gays to serve does not damage military readiness. She used in her decision the practice of deploying people who were already under investigation and then moving with their discharges after they returned from battle. She will issue an injunction today enforcing her ruling.

Will that injunction be effective immediately? I doubt it. The Servicemembers Legal Defense Network already has a case in progress. They argued that DADT is unconstitutional on First and Fifth Amendment grounds in light of Lawrence v. Texas, which made consensual sodomy legal. That case, Cook v. Gates, was unsuccessful and the First Circuit Court of Appeals affirmed the lower court because it found that national command authorities deserve great deferrance in the area of military readiness. Of course, the plaintiffs in Cook did not challenge the readiness aspect of the law, so yesterday's decision certainly upsets the apple cart for the United States Government.

Will the Department of Justice appeal this decision? Considering that there is a conflicting Circuit Court decision, it pretty much has to. Indeed, the Government did not challenge the readiness agrument (factually, it really could not, since the Pentgon does what the plaintiffs allege) because it relied on the First Circuit's jurisdicational ruling. If the Ninth Circuit agrees with the Government, the case dies and the only hope for repeal is for one Republican member to vote to allow the Defense Authorization bill to come to a vote in the Senate and for all amendments to the managers language (which mirrors the House language repealing DADT) remains intact. If the bill passes and is signed, the President, Secretary of Defense and Chairman of the Joint Chiefs must certify that DADT repeal can go forward, with repeal effective 60 days later. Since nothing is certain, it would be better for yesterday's ruling to stay intact - if only as a safety valve.

If the Ninth Circuit affirms the District Court on Appeal, then two circuits will be in disagreement, which will fast track both cases for the Supreme Court. The Office of the Solicitor General is currently in opposition to having the Supreme Court hear Cook v. Gates, in an opinion signed by then Solicitor General Elena Kagan, however they will certainly change their minds if the Ninth Circuit disagrees with the First. Indeed, I suspect that all consideration of the Writ of Certiori, which is legalese for a decision to hear the case, will be held up while the Ninth Circuit hears the case. Cert takes four votes and because Kagan signed the motion to deny it in Cook, she will likely recuse herself - which is why the Ninth Circuit affirming the District is important if the Senate removes DADT repeal from the Defense bill. If DADT is not repealed and the Ninth Circuit affirms the First Circuit, then Roberts, Alito, Scalia, Thomas or Kennedy must agree to hear the case. This is possible, but not likely.

If DADT is repealed in the bill and the President, et al, certify that it should be, the case would be moot. Indeed, before briefs could even be filed before the Ninth Circuit (and the timing is up to the Justice Department), the Defense bill will likely be passed with or without repeal language. If I were the Acting Solictor General, I would stretch that decision out as long as possible, while asking for a stay of the injunction until any appeal has taken place or until Congress acts. Indeed, I would expect all parties will move to dismiss all appeals in all courts, since DADT would then be gone.

The case is mostly valuable as leverage at this point, although it could also be used by weak Democrats to justify acting - so it is a double edged sword at this point. The focus now moves to the Senate, with the Ninth Circuit waiting in the wings.