The Obama Justice Department, which decided this week not to stick up for the anti-gay Defense of Marriage Act any longer, isn't ready yet to entirely abandon Don't Ask Don't Tell, the other major law currently limiting gay rights.
Justice Department lawyers on Friday afternoon filed a brief with the Ninth Circuit Court of Appeals defending DADT against a legal challenge.
But the argument was largely on the grounds that a process to repeal DADT is already under way.
Rather than defend the law itself as constitutional, the department instead asserted that Congress acted constitutionally in December, when it decided to leave the policy in place even as the Pentagon prepares to abandon it. "[E]nacting this orderly process was well within Congress's considerable constitutional authority in crafting legislation concerning military affairs," the department said in its brief.
It was far from the same sort of clarion call against anti-gay discrimination issued on Wednesday. Then, the Obama administration dramatically reversed itself by announcing it had decided that DOMA, which bans federal recognition of same-sex marriages, isn't just bad policy, it's outright unconstitutional.
But the White House just wasn't willing to say the same about banning openly gay men and women from serving in the military.
Asked what differentiated the DOMA and the DADT decisions, a Justice Department spokesperson told HuffPost that "the constitutionality of DADT must be viewed in light of the special deference courts grant to the military."
In that context, the spokesperson said, the administration's conviction that laws regarding sexual orientation should be subject to a particularly rigorous legal standard still "does not therefore mean that DADT is unconstitutional."
Despite the big congressional vote in December to repeal DADT, the law is actually still in effect. The repeal legislation doesn't stop its implementation until 60 days after top Pentagon brass say they're ready -- and the brass say they're still working on it, and it could take a few more months.
Friday's brief came in response to a lawsuit from the Log Cabin Republicans that predates the repeal legislation.
In October, a federal judge in California, Virginia Phillips, ruled in favor of the gay Republican group and ordered the military to immediately stop enforcing the ban. But about a week later, a panel of the Ninth Circuit U.S. Court of Appeals stayed her injunction.
After Obama signed the repeal legislation, the DOJ asked the Ninth Circuit to hold off on the appeal, but the Log Cabin group argued that since the ban was still in effect, the suit should go on. The court agreed, and ordered the government to submit a brief by close of business Friday, explaining why the lower court's verdict should be overturned.
R. Clarke Cooper, the executive director of the Log Cabin Republicans, said Friday night that he was "disappointed and dumbfounded" by the Justice Department's insistence on pursuing its argument. "The fact that this is even alive in the courts at all is really a point of confusion for many of my peers," said Cooper, who is also a captain in the Army Reserve.
Even as the Justice Department keeps fighting, over at the Pentagon "the secretary of defense level all the way down is not only preparing but actually implementing" what's being called "open service" and "open recruitment," Cooper told HuffPost. "They're moving in a very expeditious fashion to get this done, and that is good news."
"The appeal is still alive and kicking because Don't Ask Don't Tell is still the law of the land," said Dan Woods, a lawyer representing the Log Cabin Republicans.
"On behalf of our client, we suggested to the government that we would be willing to stay the appeal on one condition: that the government agree not to discharge any service member under Don't Ask Don't Tell in the meantime," Woods told HuffPost. "And the government refused."
Woods said the Pentagon "is continuing to investigate and process discharges under Don't Ask Don't Tell."
The DOJ lawyers filed their brief Friday even though President Obama, speaking directly to gay service members when he signed the repeal legislation, hailed that December day as marking "the end of a particular struggle that has lasted almost two decades."
White House Press Secretary Jay Carney told reporters Friday afternoon, before the filing, that DOJ's view is "that the courts should not decide the case or the constitutional question, due to the pending repeal, which should be effective in a matter of months."
He added: "The repeal is proceeding smoothly and efficiently. Our goal was to have it repealed. It has been repealed. And that process of the repeal is now proceeding efficiently and smoothly, which is a good thing."
Asked by a reporter for gay Washington D.C. magazine Metro Weekly if, in light of his DOMA announcement, Obama had made any similar determination regarding DADT, Carney replied: "Not that I know of, no."
Ty Cobb, legislative counsel for the Human Rights Campaign, said his group was hoping the Justice Department would stop arguing on DADT's behalf. "We've been asking for the administration to stop defending the constitutionality of Don't Ask Don't Tell since this litigation began," he said. "We continue to believe that it's an unconstitutional law."
In December, Obama's message was of redemption "We are not a nation that says, 'Don't Ask, Don't Tell.'" He said. "We are a nation that says, 'Out of many, we are one.'"
He continued: "No longer will our country be denied the service of thousands of patriotic Americans who were forced to leave the military -- regardless of their skills, no matter their bravery or their zeal, no matter their years of exemplary performance -- because they happen to be gay. No longer will tens of thousands of Americans in uniform be asked to live a lie, or look over their shoulder, in order to serve the country that they love."
But apparently it will be a little bit longer.
In a more hopeful sign, the Navy Times reported Friday that at least at sea, it'll be smooth sailing for the repeal:
All-hands training on the new rules on gays serving openly is expected to hit the fleet within two weeks as the Navy prepares to put "don't ask, don't tell" in its wake, a sea change that the Navy's top officer called "easy" in an interview Thursday with Navy Times.
And the Army announced that it is implementing a training program for soldiers worldwide.
Army Chief of Staff Gen. George W. Casey Jr. and Secretary of the Army John McHugh sent a message to soldiers this week. "We are confident that you are up to the task, and that we can implement this change in policy by relying on the leadership, professionalism, discipline and respect for each other that have characterized our service for the past 235 years and remain at the core of the United States Army," Casey and McHugh said in the message.
Sam Stein contributed to this report.
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