Department of Justice to appeal DADT ruling

[terrya]

http://advocate.com/News/Daily_News/2010/09/23/DOJ_Counters_Log_Cabin_to_Keep_DADT/

Help me to understand this. How can you say you want to repeal DADT if you keep defending it in court? Explain that to me, please, because right now, I'm seriously, seriously pissed.

So, here we are. The Senate just voted against being in favor of DADT repeal. Because of some procedual bullshit. Meanwhile, we're to all wait for the famous Pentagon Study, which may come out in December and which might say, if we're lucky, that gay and lesbian servicemembers can serve openly, without "degrading the effectiveness of our armed forces" or whatever the benchmark is to the President and the Joint Chiefs. And then, after that, the Senate will have to vote again, which might lose again because we have to get at least 1 of the lying, deceitful Republicans to vote with us. And meanwhile, this President, who said he wants to repeal DADT "this year", is continuing to defend this in court.

Now I'll be accused of hating Obama and a traitor to the Democrats, etc. And of course, the "I want my pony NOW" thing. I don't really fucking care right now.

[davidinalameda]

1. once you find out, let the rest of us know

I just saw this and have no idea how they can defend it

[terrya]

4. DADT repeal is NOW entirely in the Pentagon's hands

The Congress had a chance to give SOME sort of input this week and we saw what happened.

So, now we wait for "THE STUDY".

Pardon me if I'm not exactly warm and fuzzy about that.

[msanthrope]

12. They aren't defending it....they are objecting to a stretch of associational standing.....

Read the brief.

They aren't appealing the ruling.

This is an objection to injunctive judgment/relief.

The LCR sued on behalf of its members, and now wants the ruling to extend to non-members......which isn't something the law generally allows.

[ruggerson]

28. they are asking the court not to order the military to stop enforcing DADT

across the board.

If they weren't intending to appeal this, what is the logic behind the motion?

[msanthrope]

34. That's not what they are asking for.

This motion asks that the LCR's injunctive relief not encompass non-parties.

The logic behind this is that 1) as a general rule, you don't want litigation (any litigation) to encompass non-parties, who will then be subject to improper collateral estoppel, and 2) it apparently can conflict with Witt.

In the former point, it is a highly technical argument that does not address the issues of DADT itself.

In the latter, read what the Administration wrote about complying with Witt--there's some great stuff there.

[BlueCheese]

31. But why bother with this?

If the judge feels that way, let her do it. Why bother arguing it?

[msanthrope]

35. Because it will affect other litigation--non-DADT stuff too.

A negative ruling on associational standing would create bad precedent for all litigants.

Sometimes, the SG may agree with the substance of the argument, but may not agree with process. Here, you have an argument about the latter.

[Solly Mack]

2. K&R

New Legal Analysis: White House Can Let Judge End Military Gay Ban
Sub-Heading:
Injunction from Judge Phillips could halt all ‘don’t ask, don’t tell’ discharges

http://www.palmcenter.org/press/dadt/releases/new_legal_analysis_white_house_can_let_judge_end_military_gay_ban

Today, the Palm Center released a new legal analysis prepared by Legal Co-Director and Law Professor Diane Mazur suggesting that the White House has a strong foundation for not filing an appeal to the recent case which declared "don't ask, don't tell" unconstitutional, Log Cabin Republicans v. United States.

[depakid]

3. Some doubtlessly will tell you that they "have a duty" to "defend"

an unconstitutional law.

When they do, ask them why Thomas Jefferson declined to enforce the Alien and Sedition Acts

or have them read this:

http://www.fas.org/irp/agency/doj/olc110294.html

[msanthrope]

18. If you read the brief, you'd realize this isn't an appeal of the ruling,

or a defense of DADT--in fact, I suggest you read some of the objections, particularly the one concerning Witt.

[depakid]

19. I'm just preemptively countering an assertion that gets made on nearly all of these sorts of threads

Not speaking to the substance or the merits of the filing.

[msanthrope]

21. "Not speaking to the substance or the merits of the filing."

Yes.

And that is the problem.

[depakid]

24. :sigh: The problem is that people have a false notion in their heads

which guides their thinking every time any issue like this comes up (whether DADT, due process or unconstitutional surveillance or something else).

[msanthrope]

36. Look in the mirror. n/t

[davidinalameda]

32. or what Ahnold and Jerry Brown did in California

with Prop 8

[G_j]

5. WTF?

:wtf:

I don't get it

[Newsjock]

6. Fuck 'em

I'm done with this administration. I hope you like President Palin; it's clearly what this sick nation deserves at this point.

[elias7]

7. Yeah, it's Obama's fault

You throwing in the towel already?

[Newsjock]

9. Already?

This is insult #54972 from this administration.

http://gay.americablog.com/2010/09/doj-responds-to-lcr-in-dadt-case-wants.html

... The DOJ also objects because "Plaintiff’s Proposed Injunction Would Foreclose the United States from Litigating the Constitutionality of DADT in Other Courts." Yes, DOJ wants to keep arguing that DADT is constitutional. And, DOJ wants to be able to move for a stay.

Finally, the DOJ seems awfully concerned that if LCR wins this case, then the Obama administration will no longer be able to find that gay servicemembers hurt morale and cohesion. Why is the Obama administration so concerned about losing the "right" to discriminate against gay and lesbian servicemembers?

This is not the brief of a party that wants to find a way out of this mess. The Obama administration is aggressively defending DADT when the Obama administration doesn't have to do this.

[msanthrope]

13. But it isn't an appeal of the ruling--do you even understand that?

It's an objection to extend injunctive relief to non-parties in litigation.

[Tesha]

27. IT DOESN'T MATTER.

The Obama Administration is arguing FOR something they
have repeatedly claimed to be against.

Either their words are lies or they are just inconceivably
stupid.

Tesha

[msanthrope]

37. Yes...it does matter.

They are not arguing against the substance of the ruling--the are disputing associational standing.

Why don't you read the brief--the section on Witt might give you some hope.

[ruggerson]

30. Why would they want to do that if their objective was to end DADT?

Are you actually implying that based on this motion, you think they AREN'T going to appeal?

[msanthrope]

38. Because stretcthing associational litigation wouldn't be good law.

What I am saying is that you CANNOT tell yet what the administration is going to do--they are arguing a process point that does need to be argued.

But read the Witt section--I don;t want to characterize it for you, but it gave me hope.

[Uzybone]

8. I hope the court tells them to get fucked

if there is a larger scheme to this, I sure hope someone in the govt can explain it.

[msanthrope]

15. Read the brief--it's self-explanatory--it isn't an appeal of the ruling.

Truly--it isn't.

It is an objection to extend relief to non-parties in litigation.

[msanthrope]

10. Your OP title is Incorrect. This isn't an appeal of the ruling, it's an objection to injunctive

relief.

What the Log cabin republicans did was sue only on behalf their own membership.

They are asking for associational standing to stretch, on behalf of non-parties.

Which the DOJ rightly says they can't do.

[msanthrope]

11. Your OP title is Incorrect. This isn't an appeal of the ruling, it's an objection to injunctive

relief.

What the Log cabin republicans did was sue only on behalf their own membership.

They are asking for associational standing to stretch, on behalf of non-parties.

Which the DOJ rightly says they can't do.

[terrya]

17. Fine, I stand corrected.

Pardon me for not putting 1,000% trust in the politicians. Both Democrats and Republicans.

As I said, however, this is entirely in the Pentagon's hands. There isn't a whole lot of warm fuzziness about repealing DADT over there. It's naive, in the extreme, to trust these people. I can't call my admirals and brigidier generals, like my Congresspeople, you know?

[msanthrope]

20. Well, you do raise an interesting point.....one that I agree with.

The study by the Pentagon will be pivotal.

It is the only way you address the findings of harm contained within the DADT statute, however....

I have a tiny bit of optimism, though...perhaps it's my faith in my country and my Constitution. Perhaps it is just HOPE.

Maybe, hopefully, the study comes out and no one (but a small minority of assholes) in the military cares if the person serving next to them is gay---and then the rationale for DADT is gone. All that is left is animus, which will not survive review.

[terrya]

22. Seriously, this is it.

EVERYTHING hinges on this study. And I've already read more than I care to about this "we're in 2 wars" thing. Hell, we'll ALWAYS be in some war, some military conflict, some combat operations, whatever. I'm 54 years old and I can't ever think of a time when the United States was ever at peace. And then finding out that not all of the Joint Chiefs are on board with DADT repeal. There's still significant opposition in the military to this. There are still a signficant group of very conservative, religious people in the Pentagon hierarchy.

It is not even close to being a "done deal" this year or any year. You'd be foolish to think that it is.

[QC]

14. You obviously don't appreciate fine chess. n/t

[msanthrope]

16. It isn't fine chess---it's an objection to proposed injunctive relief.

It's not an appeal of the ruling itself.

[FreeState]

23. Why would they file this if they dont plan to appeal the ruling? n/t

[msanthrope]

41. Because stretching associational standing would affect other cases and other litigants, and doesn't

make for good law.

[rusty fender]

43. I think that many of us non-lawyers don't understand what

"associational standing" means. I'm taking it to mean that only Log Cabin repubs can serve openly in the mil, but the Admin. doesn't want any non-Log Cabin members of the military serving while 'openly gay.'

Therefore, if there is no associational standing, then every military gay person could join the Log Cabins and would not have to worry about being kicked out because they would be protected.

And what do you mean by "good law?" Is it a "good law" when you agree with it?:shrug:

[msanthrope]

44. Associational standing refers to who is a party in litigation---

In this case, the LCR sued on behalf of itself and its members. This made their litigation 'easier.'

The judge declared they won, and on what basis.

She has not given a remedy, though, and that's why LCR and the government are briefing.

LCR wants to extend the ruling to non-members. The government says no.

Generally, when one has not sued on behalf of certain parties, the judgment does not extend to them. This is to protect the interests of those parties--why should litigation you have not been a part of affect you? Further, if you don't spend the money/effort in the initial phase of litigation, including parties, why should you reap a benefit that goes beyond the original scope of your litigation?

In fact, when those parties have their own interests/suits, you may not want to foreclose on their options.

When you lump everyone together, collateral estoppel applies. This cuts off the ability of others to sue...and here's the kicker---if this suit fails, then non-parties may not have the ability to file other suits.

That is not good law.

[rusty fender]

45. Thanks, now I understand--

:hi:

[terrya]

25. I guess it's time for me to shift into "Yes, We Can" mode.

Keep hope alive, tomorrow is another day, we can do anything if we set our minds to it, etc.

Am I missing anything?

Golly, why am I being such a sad, gloomy gus? My President will do the right thing. I just know it. It will be dark and cloudy, and suddenly our Fierce Advocate-in-Chief will ACT. And the sun will come out and gosh, gee whiz, it will be a bright new day for us GLBT Americans. Happy endings for all.

[davidinalameda]

33. the sun will come out tomorrow

bet your bottom dollar

:shrug:

[TheBigotBasher]

26. In order to get the Supreme Court to decide on it?

???

[ruggerson]

29. No - it can still be appealed up the food chain, even if the judge grants broad injuctive relief

and orders the government to stop enforcing DADT.

[Stinky The Clown]

39. I was hoping that those who always come to defend this sort of thing would be here schooling us.

But nope. No one is here telling us why, in a seventy two level chess game, this is the brilliant strategy.

[msanthrope]

42. It isn't brilliant strategy---it's hornbook law.

It's a dispute over associational standing.

but read the government's stance on Witt....I think it's pretty interesting.

[VMI Dem]

40. I don't think its a pony any more. Its beans now.

You are asking for too many beans.