'Don't Ask, Don't Tell': Is Obama Administration Bound to Defend Law it Opposes?

WASHINGTON, Oct. 21, 2010— -- When it comes to gay rights, President Obama has been forceful in declaring where he stands, promising to bring an end to both the military's "don't ask, don't tell" policy and the Defense of Marriage Act, which denies federal recognition of same-sex couples.

Yet even after federal judges ruled separately that both laws are unconstitutional, the Obama administration's Justice Department has continued with appeals, saying it's bound by a "duty to defend" the laws even if it doesn't like them.

The Department's latest appeal came Wednesday when government lawyers asked a federal appeals court to reinstate the military's ban on openly gay service members after District Court Judge Virginia Phillips ruled it unconstitutional and issued an immediate, worldwide injunction against the policy.

A federal appeals court reinstated the policy late Wednesday. A three-judge panel granted the Justice Department's emergency request to allow the policy to remain on the books so that the appeals court could have more time to fully consider the issues presented.

The administration's handling of the case has angered critics on both sides of the issue. Gay rights advocates, infuriated by what they see as hypocrisy, and some legal scholars, insist the "duty to defend" has already been fulfilled and that there is ample precedent for the administration to let Judge Phillips' decision stand. Meanwhile, supporters of the law say the administration's invocation of their "duty" is a smokescreen for a halfhearted defense.

"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell,'" Olson said. "It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

No statutory or constitutional provision requires the Department of Justice to appeal a ruling striking down a federal law as unconstitutional. But the executive branch has traditionally continued legal defense when "a reasonable argument can be made in [the law's] support," according to DOJ guidelines.

The policy is designed to honor the spirit of the independent branches of government: Congress passes laws, presidents sign them, and only courts can ultimately decide whether or not they are constitutional.

"It is true the optimal situation would be for Congress to repeal 'don't ask, don't tell' and not rely on courts," conceded Aaron Belkin, director of the University of California'sPalm Center, a research institute which supports repeal. "But there is so much pressure to let this [court ruling] stand because Congress is going to have a difficult time" enacting a repeal.

The House approved a defense authorization bill last month, which included a repeal of the "don't ask, don't tell" policy, but a similar measure failed a vote in the Senate.