'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.

'Longstanding Practice': DOJ Defends Appeal

Phillips' ruling in "don't ask, don't tell" follows a decision by Federal District Judge Joseph Tauro who separately ruled this year that the Defense of Marriage Act "plainly encroaches" on the right of the state to determine marriage." The administration has also appealed the decision in that case.

"They are not obligated to defend," said Belkin of the cases. "They already defended and failed."

Advocates say there is precedent, albeit limited, of administrations exercising discretion in declining to appeal the constitutionality of a law.

John Aravosis, author of AmericaBlog, noted one example from 1996 when President Clinton preemptively refused to defend in court a proposed law that would have banned HIV-positive soldiers from the military because he believed it unconstitutional. Aravosis argues Obama can and should now do the same.

"We were told that all hell would break loose if it ever happened," he wrote of Clinton's refusal to support the law. "All hell didn't break loose, a later Republican president didn't retaliate, and locusts didn't descend from on high."

When pressed to explain why the Justice Department has pursued an appeal of Judge Phillips' ruling, spokesperson Tracy Schmaler suggested the administration believes its obligation has not yet been fulfilled.

"The Administration does not support ['don't ask, don't tell'] as a matter of policy and strongly believes that Congress should repeal it," the Department writes in its brief. "The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality."

Schmaler said federal courts have been divided on the constitutionality of the law, making the question far from resolved.

Government lawyers have also argued that Phillips' worldwide injunction against the policy was too broad, necessitating an appeal for a narrower ruling to apply only to parties affected in the case.

"The 'duty to defend' is not in the Constitution, it's not in a statute, it's not in an executive order, but it is in the guidelines that govern the work of the president's legal counsel," said Beth Hillman, a constitutional law professor at the University of California Hastings College of Law and who also opposes "don't ask don't tell."

Hillman said the administration's actions could be reasonably viewed as an honest attempt to adhere to tradition. But she also said the administration may have taken this course to avoid setting a precedent that could imperil the new health care law, which is facing challenges on constitutional grounds.

"Let's say Obama is out of office before those legal challenges are resolved and then a president who follows Obama and opposes the health care reform bill and believes it not to be constitutional could fail to defend it. It's that argument that this would set a precedent in motion," she said.

Critics: DOJ Defense of 'Don't Ask' Not Vigorous

Some legal scholars have also speculated that the administration may be reluctant to halt its defense to afford the Supreme Court the chance to issue an ultimate decision on the constitutionality of a law, potentially rendering it null for good.

Either way, the legal defense the administration has mounted has drawn sharp criticism from supporters of "don't ask, don't tell," some of whom have suggested the administration has been complicit in the situation that led to Phillips' injunction ending the ban on openly gay troops.

"The fact that DOJ has filed a formal notice of appeal shouldn't distract from the deeper scandal that the political appointees at DOJ have been only pretending to mount a vigorous defense of DADT while in fact operating to undermine it," wrote Ed Whelan, president of the conservative Ethics and Public Policy Center, in an online essay published on the Witherspoon Institute's Public Discourse.

"This is the president's agenda," said Elaine Donnelly, president of the Center for Military Readiness, which supports "don't ask don't tell." "I have no explanation for why they haven't more forcefully appealed. It's political. The president is determined to deliver on his campaign promise."

Even Judge Phillips noted that the government "had an opportunity to, but did not, present any of the evidence or arguments" during trial over why ending the policy would be harmful to military readiness. "They provided no evidence regarding the alleged disruption," wrote Phillips of the DOJ, in rejecting their request to stay an injunction.

It's now up to the 9th Circuit Court of Appeals to decide whether to grant the administration's request for a stay of the injunction and take up an appeal of the judgment against the law.

White House press secretary Robert Gibbs said Monday that the president would press lawmakers to approve a repeal during the lame-duck session after the November elections.