On September 9, 2010, a judge of the Federal District Court ruled that the U.S. military's "don't ask don't tell" policy was unconstitutional. In her decision, Judge Virginia Phillips noted that the policy infringed "the fundamental rights of United States service members in many ways." It violated their guarantee of due process, and their free speech rights. [See: "Judge Rules That Military Policy Violates Rights of Gays, New York Times, September 9, 2010]
The judge's decision was followed by her ruling in October that the U.S. military must stop enforcing the "don't ask don't tell" policy. The judge ruled that this order was the only way "to prevent the continued violation of their (gay service members') rights". [See: "Judge orders don't ask don't tell injunction" Associated Press, October 12 2010]
Despite the opinion of some US legal experts that the Obama administration need not and might not appeal the order, the Obama administration did appeal. On October 20, a Federal Court of Appeal panel granted the Administration's request and stayed the order pending a full appeal of Judge Phillips' decision. Thus the unconstitutional discriminatory policy went back into effect. [See: "Appeal Court delays injunction against "don't ask don't tell" CNN US Oct. 21 2010]
President Obama promised in his campaign to end the "don't ask don't tell" policy. Despite progress towards achieving that result (recall it has been over 21 months since Obama went into office), the policy still is in effect. Obama is still in favour of ending the policy and has promised that it will be done "on his watch". This of course will happen. There is wide agreement that the policy should end, and after Judge Phillips' decision I would assume that there will be even fewer out there who will continue to defend it. There are of course reasons given for the Obama's administration's opposition to Judge Phillips' order, including respect for the roles of the judiciary and Congress, the need for an "orderly" end to the policy, and the need for the Department of Defense to finish its review of the policy.
It must be upsetting to many, as it is to me, that ending a policy which has been declared to be a breach of fundamental constitutional rights, which discriminates against gays, which few Americans support, and which will ultimately end anyway, will continue to be held up for the reasons given. Every day of delay means another day that the fundamental constitutional rights of gay service members will be denied.
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Lewis,
ReplyDeleteI'm puzzled. I just looked back through your archives, and could find no post demanding immediate remediation of what the Supreme Court nearly a year ago desribed as Canada's contribution to the violation of Omar Khadr's constitutional rights under s. 7 of the Charter. After all, "every day of delay means another day that the fundamental constitutional rights of [Omar Khadr]will be denied."
As an aside, I find it odd that an academic lawyer would criticize someone for exercising a right of appeal. Would you suggest that defendants should never appeal a trial judge's findings of tort liability? On a purely pragmatic level, Lew, you've surely been around the block more than enough times to know that merely because a lower court has declared a breach, doesn't mean that it will ultimately be found to be legally correct in having done so. Rights are never absolute. This isn't to say that the fact of the breach won't be affirmed on appeal, but rather that these issues can be more complicated than your post suggests.
Russ
Hi Professors Klar and Brown!
ReplyDelete1) Professor Klar, you mention, without commenting, the argument that the DoJ should appeal all rulings that strike down an act of Congress. What do you make of that? I think it's pretty specious, here, since the Holder DoJ recently declined to appeal Witt v. Air Force, the case that established heightened scrutiny for due process claims of discrimination against homosexuals. It's interesting that Schwarzenegger held his ground and decided not to appeal the Prop 8 ruling, while President Obama has appealed both the DADT and DOMA rulings.
2) President Obama's stance on Khadr isn't surprising. He's carried on all of the Bush administration's positions on national security litigation, mounting state secret defences in Jeppesen Dataplan (rendition), al-Aulaqi (execution of Americans abroad without trial), Padilla v. Yoo (the torture memos), Al-Haramain (wiretapping), and most painfully for Canadians, Maher Arar's tort suits.
3) Professor Brown, are the same ethical issues at stake in appealing a private tort judgment versus a ruling striking down an enactment as unconstitutional? If a successful ballot proposition declared that women do not have the right to vote, in clear violation of the 19th Amendment, would the executive have to appeal a ruling striking it down? Why?
-Scott