Jarrod Chlapowski

A Quick Breakdown on Today's Injunction on DADT Discharges

Filed By Jarrod Chlapowski | October 12, 2010 6:00 PM | comments

Filed in: The Movement
Tags: Don't Ask Don't Tell, LCR v. USA, Servicemembers United

Well, maybe not so quick.

court_house.jpgAs of right now, "Don't Ask, Don't Tell" is not in effect. Tomorrow, next week, is another story. Maybe.

Today, Judge Virgina Phillips who is presiding over the case LCR v. USA in Riverside declared DADT unconstitutional on free speech and due process grounds, ordering both an end to implementation of DADT and a suspension of all currently pending DADT discharge cases.

What can prevent ruling from remaining in effect is if the 9th Circuit (within which the Riverside court resides) places a stay on discharges at the request of the Department of Justice, who has 60 days to do so. As it would be a disaster for the military to have DADT lifted for more than a few weeks before having a stay on the injunction (ie, discharges allowed to resume), if there were to be an appeal, you can expect it to occur very quickly, augmented by the context of election season.

The ruling comes at a moment when things are in a jumble in the DADT repeal movement. The September dilemma over procedural tactics prevented a decisive vote on DADT, effectively framing the debate as partisan and adding an extra dose of cynicism from our allies, and severely handicapping the fight for repeal through the midterm election cycle. A December lame-duck vote is looking less and less likely as attention is diverted from the issue and larger orgs abstain from pressuring the decision-makers and influencers on legislative scheduling for the sake of maintaining access. And, worst case scenario, should we fail this year, legislative repeal next year looks extremely unlikely at best, which will at least partly be fueled by the partisan mess that resulted from September's snafu. The best way out of this mess for all-involved would be if DOJ opted not to push for a stay on the injunction.

Now the White House has its own dilemma to deal with, facing (very generally) four options on DADT repeal:

1). Push for DOJ not to appeal the ruling, and effectively ending DADT;
2). Become very active in pushing for a lame-duck legislative repeal;
3). Halt discharges via executive order while the court case goes through the appeals process;
4). Don't do anything, and walk into the 2012 elections with DADT still on the books.

Any one of the four will cost political capital to varying degrees. Option 1 arguably expends the least capital, though at the least optimal time before election season. Option 2 is possible and spends a little more capital, though it would require a certain dedication above other legislative priorities in the very short lame-duck where even a positive outcome is not guaranteed. Option 3 is not even in the realm of consideration until we know the Congressional makeup next year, so counting on it is a gamble (though timing in the beginning of 2011 right after the review comes out in December and before 2012 election season really takes off might be ideal). Option 4 is a distinct possibility, though also a gamble when 82% of the population already is in favor of repeal.

What does this mean for us? Two things.

A). It is very likely this will be appealed, and very likely this appeal will be in the next few days. Though there is hope the White House will wise-up and realize what it's stepping into should DOJ aggressively push to appeal the injunction.

B). Instead of celebrating, we should be preparing for future action pressuring the White House. If a stay is placed on the injunction, we have our work cut out for us over the next few months, if not years. And the White House right now is the biggest player in how the fight to repeal DADT goes down in 2010.

Stay tuned.


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I don't see why option #1 is inherently tangled up with the election cycle. If they think killing the appeal is politically useful they can do it now, if not they can wait until after the election - they don't have to make a decision immediately.

We should "prepare for future action to pressure the White House?" Why? So they will finally use their "magic wand" and create 60 votes?

We don't have enough support in the US Senate. We have 56 LGBT-supportive US Senators. The other 44 are non-negotiable because for them this is a "moral" issue.

Immediately after the mid-terms at least two new Republicans will be sworn in, reducing our total to 54 LGBT-supportive votes. After the new Senators are sworn in we will likely have 51 or 52 LGBT-Supportive votes in the new Senate.

That's the painful but realistic math. That isn't going to change unless this election turns around and that doesn't look likely. I don't think Obama will help the Republicans by making any move before the mid-terms.

When the Democrats lose big they will blame us and claim we "withheld donations," "heckled the President," embarrassed Democrats and didn't turn out to vote. They will be correct.

You don't get it, do you? It's "UNCONSTITUTIONAL." Congress is out of the picture. They don't have shit to say. The only people who can change this is the 9th Circuit, then the Supreme Court after that. How many Senators support it and how many don't is a moot point now. If it is not appealed, then DADT is DEAD. You understand "DEAD," don't you? Why the fuck did you even bring up the Senate?

That's the legal solution Monica. The post is about the legal and/or executive-political solution.

You're welcome.

It doesn't matter if Congress repeals it or not. It's an option that is meaningless, unless they repeal it. For Congress to keep it on the books, it will still have to go through the courts. They may repeal it sooner, but it still remains unconstitutional. So, my comment stays as is.

I hope that's what they say. It's the only way they'll take our concerns seriously next time.

Oh, look -- still out of touch with pragmatic realities!

Gotta love the way you try and make an action to pressure the white house seem like an action to affect congress, when the only person who seems to think congress is of any importance in an issues htat falls to the White House is you.

Separation of powers, Andrew. The WHite house is not the senate -- and when people talk about pressuring the white house, that means the President, not the Senate.

And since the Presdient has the legal, constitutional power of Commander in CHief to end this, ALL BY HIMSELF, your insistence ona legislative deal is, well, asinine and the way you've done it here -- literally ignroing what was said -- shows that you are seeking to decieve and misinform people, because you are misinformed yourself.

No. We need to prepare for future action to pressure the white house because they are the ones who decide on what cases to pursue and what one's don't. The buck stops there. They are the ones who have the power to end the discharges.

And they are not using that power, despite multiple years of promises to end this sort of thing.

Which you pointedly ignore, making your statement as a whole another falsehood, to join the donzens that you use every time you post.

THen you go off on your personal, priate world that no one else is sharing about the Senate. And call that painful but relaistic math, as if the Senate has any sort of jurisdiction over the Justice Department (it doesn't).

But you use that to make it seem as if the Senate is important in this, and that makes that all a fallacy.

Failure of logic, Andrew, deceit, and condemnation. That makes you a liability, Andrew.

And I'm calling you on it.

The President cannot "repeal" DADT or as you've said "end" DADT. It's a law and only the Courts or Congress can Repeal/end it.

The President can, by Executive Order, stop the enforcement of DADT and he could have done that 2 years ago. Two years of your faux "pressure" hasn't inspired him and probably has had the opposite effect.

DOJ is going to ask for a "stay" of the Injunction and they will appeal the ruling.

So, we are no where further politically than we were two years ago and the Court cases will be determined by the Supreme Court - possibly within two years.

What you and others seem to miss is that the President made a deal with the Military and that hinges on the "study" which is due in December. He isn't going to do anything before he has that study.

Right now we are in the middle of a very difficult election. Obama won't damage democrats even more by doing anything with DADT.

So, pressuring the White House is useless. It's even laughable.

The political makeup of the next Congress and Obama's desire for a second term will, coupled with that Defense Department study will determine the fate of DADT - not weather balloons and flash mobs.

It seems the Courts will likely handle the matter prior to politics, but even there it's not guaranteed.

My analysis and I didn't insult you. You try.

I pick option one. It's a win/win.

A). It is very likely this will be appealed, and very likely this appeal will be in the next few days. Though there is hope the White House will wise-up and realize what it's stepping into should DOJ aggressively push to appeal the injunction.

The DOJ just filed appeal in Gill, saying that they have to defend every law. I wasn't aware that the DOJ's obligation to defend laws meant they had to exhaust every appeal as well, but why not.

Yes, the best advice I could offer friends yesterday is to keep from popping that cork just yet and call their Senators instead. It's still gonna take support from Congress to repeal the law.

Option one isn't really an option because the law is still on the books and the DOJ is obligated to defend it.
Option two makes the most sense because the Constitution states clearly that military rules and regulations are to be determined by the Congress.
Option three isn't valid because the President would be in violation of his Constitutional oath if he sought to usurp the power given to the Congress by the Constitution.
Option 4 sucks but by the Constitution Congress is responsible for making military rules and regulation so it might come to that.
Option 5 push real hard to force the Republicans to change their position on LGBT issues.I believe there is a case to be made that their positions have caused undo hardship on LGBT Americans.There is also a case to be made that the Republicans have overstepped the boundaries of Separation of Church and State.Approach them out of court then take them to court if need be.

Teddy Partridge | October 13, 2010 1:54 PM

Every article on this injunction needs to clearly state, for the benefit of military servicemembers worldwide:

NOTHING HAS CHANGED.
DO NOT COME OUT AT WORK OR TO COLLEAGUES.

Thanks!