Govt. Appeals DADT Injunction

The Department of Justice requested a stay Thursday of a federal judge's injunction barring enforcement of "don't ask, don't tell."

Justice Department attorneys filed the request to U.S. district judge Virginia A. Phillips in Riverside, Calif., this afternoon.

Should Phillips deny the request for a stay, government attorneys will file an emergency request to the U.S. court of appeals for the ninth circuit.

“At a minimum, this case raises serious legal questions, and without the entry of an order immediately staying the application of this Court’s judgment, defendants will be irreparably harmed before they can appeal this Court’s decision to the Ninth Circuit,” assistant U.S. attorney Paul G. Freeborne wrote.

Few were surprised by news, least of all the leadership of the Log Cabin Republicans, which will oppose the application for a stay of Phillips's injunction.

“After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend ‘don’t ask, don’t tell,’” said Christian Berle, deputy executive director of the organization. “Log Cabin Republicans will continue to advocate on behalf of the American service members who every day sacrifice in defense of our nation and our Constitution.”

But Richard Socarides, a New York lawyer and former LGBT adviser to President Bill Clinton, said getting the stay on the suspension of discharges was not guaranteed and that if the court of appeals failed to grant it, the Justice Department would have to appeal to the U.S. Supreme Court.

In order to get the stay, Socarides said the government would have to prove it would suffer serious, irreversible damage if it were denied.

“It’s considered an extreme remedy,” Socarides said. “Just coming in and saying that it would be better to do it in a more orderly fashion isn’t enough.”

Socarides explained that DOJ was also in a tricky situation given the president’s position that he believes gays and lesbians should ultimately be able to serve openly in the military.

“They have severe political restrictions on what they can say,” Socarides said, noting that the Justice Department cannot argue, for instance, that allowing gays to serve openly would be harmful to the military. “They’re now in difficult position of having to articulate a position as to why, on an emergency basis, an order that is wholly consistent the president’s position should be denied.”