Question about DADT repeal

[RoseMead]

A friend asked me this, and I wasn't sure of the answer: How can Congress be voting on DADT now when it was declared unconstitutional by a federal court? I suggested that it may be because the case hadn't gone to the Supreme Court yet. But this level of law is really an area I know nothing about.

Can anyone answer his question, or point me to a resource where I can find the answer? Thanks very much!

[sabbat hunter]

1. it is to make sure

that the SCOTUS does not need to rule one way or the other. I think the SCOTUS the way it is currently constituted might vote to uphold DADT.

[RoseMead]

3. Ah, ok I can see that

I understand wanting this to become law via Congress, rather than by SC decision or executive order (since that could be overturned by the next incoming president.

What we're wondering is, how can they vote on it at all, since it has already been declared unconstitutional? Wouldn't that negate any need for a vote one way or another?

[RoseMead]

2. Does it have something to do with the potential for appeal by the Obama administration?

I know there were a lot of calls for them to not appeal the decision, but I'm having trouble so far finding out if the DoJ did appeal this decision or not. Was there an appeal? Is that why voting on the issue is possible, because the decision is still potentially subject to being overturned?

Pardon my ignorance, and thanks again for any enlightenment.

[Tx4obama]

6. In addition to what Skinner said

1) Yes, the DoJ has appealed the court's ruling.

2) Also, the DoJ requested a 'stay' -
From TPM October 14, 2010: The Department of Justice today asked a federal judge to allow the military to continue enforcing Don't Ask, Don't Tell, pending the DOJ's appeal. The federal government filed the request with Judge Virginia Philips, who earlier this week ordered the military to stop enforcing DADT, to stay her injunction pending appeal. http://tpmmuckraker.talkingpointsmemo.com/2010/10/reports_doj_will_ask_for_stay_of_dadt_injunction_p.php

A 'temporary stay' was granted October 20, 2010: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay of U.S. District Judge Virginia Phillips's Oct. 12 order in Log Cabin Republicans v. United States halting all enforcement of the military's "Don't Ask, Don't Tell" policy. http://www.metroweekly.com/poliglot/2010/10/breaking-ninth-circuit-stays-d.html

[RoseMead]

7. Thank you! n/t

[Skinner]

4. A few reasons.

First: DADT is still being enforced, despite the court ruling.

Second: The court ruling does not apply to the entire country -- only to that circuit.

Third: The court ruling will not be the final answer until/unless it goes all the way to the Supreme Court. (At which point, I believe the conservative Supreme Court would overturn the lower court and uphold DADT.)

Fourth: Repealing DADT through an act of Congress will make the court ruling -- any court ruling -- irrelevant. It can't be appealed to the Supreme Court if it is no longer the law. This is why a statutory repeal is the gold standard.

[RoseMead]

5. Thank you!

That all makes sense, and I feel that I can confidently explain it to him. Thanks, Skinner!