Less than a week before the Obama administration's Department of Justice appealed a judge's ruling that the military's Don't Ask Don't Tell policy is unconstitutional, it elected to let stand a court ruling allowing religious groups to proselytize in federal parks.
In a little-noticed decision last Thursday, the DoJ let stand a U.S. Court of Appeals ruling that small groups wishing to gather and demonstrate at national parks no longer have to obtain a permit from the National Park Service. The Department's decision to let that ruling stand while challenging, days later, U.S. District Judge Virginia Phillips' decision to overturn DADT on constitutional grounds are not topically related. But it did spur another round of criticism that the administration is either insensitive or hypocritical when it comes to gay rights.
"In the very same week, the administration says that it absolutely must appeal a federal court's decision on 'Don't Ask, Don't Tell' while it orders the Justice Department not to appeal a federal court's ruling in favor of the conservative Alliance Defense Fund. This contradiction is simply incomprehensible and insulting," said Alexander Nicholson, Executive Director of Servicemembers United.
Nicholson's statement echoed similar arguments from gay-rights activists (including Ted Olson, the Bush administration's solicitor general) who have challenged the notion that the DoJ must defend the laws on the books, regardless of how objectionable they are. But there is an important political nuance that separates DADT from the park service's regulation and guided the department's thinking with respect to both.
As a DoJ official points out: "one key difference is that the park service is a regulation (not a statute) as opposed to DADT," which was an act of Congress. " A regulation is an executive branch creation, as such, the president is able to modify or rescind [it]."
"DADT falls within the obligation to defend/follow laws passed by Congress that are reasonable deemed constitutional."
This is not a distinction without a difference. On Wednesday, the Associated Press quoted a number of prominent legal figures, including former solicitor generals (though not Olson), who affirmed that the Department of Justice has to execute acts of Congress or risk open legal quarreling between the executive and legislative branches. There are exemptions. But they are rare.
Speaking to the Huffington Post on condition of anonymity, a top legal scholar stressed that the DoJ is acting consistently with respect to DADT and the park service laws. The same informal guidelines that guide department policy with respect to congressional law don't necessarily hold true with respect to administration regulations or orders.
"My hunch would be that the clue is the idea of a regulation," said the scholar. "DADT is a law passed by the Congress of the United States. And the park service was an administration regulation, which has been promulgated by administrative procedures. My hunch would be, that that differentiation is significant."