Ethics & Public Policy Center

Don't Defend, Don't Tell

Published in Public Discourse on October 15, 2010



Earlier this week, a single federal district judge in California issued an injunction immediately and permanently barring the Department of Defense from enforcing the federal law, colloquially known as “Don't Ask, Don't Tell” (DADT), that authorizes the discharge of members of the armed forces on account of homosexual activity.

Judge Virginia A. Phillips's brazen and error-strewn ruling in Log Cabin Republicans v. United States provides a useful case study of the all-too-familiar phenomenon of liberal judicial activism — in brief, the wrongful judicial overriding of a democratic enactment in order to advance the agenda of the Left. As in many other recent and ongoing cases involving claims of gay rights, this case study needs to be broadened to expose the complicit actions of the officials who were duty-bound to defend the law but who instead acted to undermine it. In this DADT case, those officials include Attorney General Eric Holder and then-Solicitor General Elena Kagan.

Let's begin with the Ninth Circuit's rogue ruling in May 2008 in the case of Witt v. Department of Air Force. In that case, a Ninth Circuit panel ruled that the DADT law, rather than receiving deferential “rational basis” review, should instead be subjected to some ill-defined “heightened scrutiny.” Under the standard that the panel devised, the government would have to show that the application of Don't Ask, Don't Tell to a specific individual significantly furthered an important government interest and that less intrusive means could not achieve substantially the same end. Despite relevant Supreme Court precedent, the panel failed to consider whether the military context weighed in favor of deferential review.

In its petition for rehearing, the Department of Justice (DOJ) in the Bush administration argued that the Witt decision misconstrued Supreme Court precedent, conflicted with precedents from the Supreme Court and other circuits, and created an unworkable rule that would disrupt military affairs. When the Ninth Circuit, over vigorous dissents, denied DOJ's request for rehearing in December 2008, it was clear that DOJ's next step would be to seek Supreme Court reversal of the Witt decision.

Notwithstanding President Obama's policy stance in favor of repealing DADT, there was little reason to believe that the change of administrations in January 2009 would alter DOJ's direction on Witt. With the exceptions of laws that intrude on executive-branch prerogatives or that are unquestionably unconstitutional, DOJ's established practice is to vigorously defend federal laws. Indeed, in the course of her confirmation hearing to become Solicitor General, Elena Kagan, who as Harvard law school dean had vehemently condemned DADT as “a profound wrong — a moral injustice of the first order,” assured senators that she would set aside her own personal views on DADT and would “with vigor” “advance … the interests of the United States, as principally expressed in legislative enactments and executive policy.” “Under prevailing Equal Protection law,” she emphasized, DADT is “subject to rational basis scrutiny,” and “the rational basis standard is very easy to satisfy.” Indeed, “courts frequently grant Congress even greater deference than usual when military matters are involved.”

Yet when the time came to seek Supreme Court review of Witt, Kagan punted. In a letter to the Senate explaining Kagan's decision, Attorney General Holder implausibly explained that DOJ had decided not to seek Supreme Court review because there wasn't yet a final judgment in the case (the Ninth Circuit had sent the case back to the district court to apply its heightened scrutiny) and because of “practical litigation considerations.” But contrary to Holder's argument, there's ample reason to believe that the Supreme Court would have granted an Obama administration request for review of the rogue Ninth Circuit ruling, and the “practical litigation considerations” cut in favor of not subjecting the military — during a time of war, no less — to litigation burdens that would be eliminated by a reversal.

Political considerations provide a far more compelling explanation of the decision not to seek review of Witt. The gay-rights lobby would surely have seen an Obama administration appeal of a ruling by the notorious Ninth Circuit as a most unpromising vehicle for its constitutional attack on DADT. And a Solicitor General positioning herself for elevation to the Supreme Court would be eager to duck a highly controversial case that would put her at odds with an influential political constituency. Conversely, leaving the Ninth Circuit's decision in effect would offer numerous advantages. District-court proceedings (in Witt and other cases) under the Witt standard would predictably generate defeats for DADT (especially if senior political appointees at DOJ supervised the litigation), which defeats would then be affirmed by the Ninth Circuit. Those defeats would then be spun as bolstering the political case for repeal of DADT. Further, the passage of years might mean that DADT would be repealed before Holder or Kagan — or, better yet, their successors — would again face the question of seeking Supreme Court review of the Witt standard.

It is against this backdrop that Judge Phillips addressed the challenge to DADT brought by Log Cabin Republicans on behalf of its members. DOJ argued that the heightened-scrutiny standard that Witt set forth for so-called as-applied challenges (that is, challenges brought by individuals discharged, or facing discharge proceedings, under DADT) did not apply to the Log Cabin Republicans' claims that DADT is facially invalid. But Phillips rejected that argument and proceeded to trial.

At trial, as Judge Phillips notes several times (in slightly different formulations) in her opinion, DOJ “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of [DADT].” Why did DOJ fail to put on any real defense? Why did it refuse, for example, to call as witnesses some of the military leaders who continue to support DADT? Rank incompetence would be one possible explanation, but no one familiar with the quality of the career professionals at DOJ would credit that answer. The obvious — indeed, I would submit, the only plausible — explanation is that President Obama's political appointees at DOJ, who were deeply involved in the case (Solicitor General Elena Kagan even tended to the details of a discovery dispute), hamstrung the career lawyers from putting on their best case. For an administration seeking to placate gay-rights activists and to push Congress to repeal DADT, it would have been politically awkward to be presenting and crediting as witnesses the very folks who would be the administration's most visible opponents in the battle over DADT repeal.

Judge Phillips also deserves her ample share of blame. Under the Supreme Court's prevailing standard for facial challenges, a plaintiff can succeed in a facial challenge to a law only by establishing that the law is unconstitutional in all its applications. Under proper application of that standard, it is difficult to imagine how a facial challenge to DADT could possibly succeed, as DADT would surely permissibly apply, say, to a service member who engaged in a long series of homosexual acts by use of force. Oddly, Judge Phillips articulated this standard correctly in her order denying summary judgment, but by the time of her final ruling she had confused herself into thinking that the Supreme Court had lowered its standard. (Even then, she misapplied the lower standard.)

Judge Phillips's injunction purporting to bar the Department of Defense (DOD) from enforcing DADT “against any person” is also plainly overbroad. Log Cabin Republicans did not bring a class action, and the relief that Jud
ge Phillips is empowered to grant shouldn't directly benefit anyone who is not a member of (and not made known to DOD to be a member of) Log Cabin Republicans. And, like Judge Vaughn Walker in his anti-Proposition 8 ruling inventing a constitutional right to same-sex marriage, it's appalling that Judge Phillips, in overriding the resolution that a Democratic-dominated Congress and President Clinton reached seventeen years ago on a sensitive matter of military discipline, would decline to stay her judgment pending appeal and instead seek to implement it immediately.

In the immediate aftermath of Judge Phillips's ruling, there was a swirl of media speculation over whether DOJ would file an appeal. It would have been scandalous if DOJ had chosen not to appeal and if it had let a ruling by a single district judge bring an end to DADT. But given DOJ's appeal earlier this week of the rulings by a federal judge against the Defense of Marriage Act (another federal law that DOJ has been sabotaging), it is no surprise that DOJ has just filed a notice of appeal of Judge Phillips's ruling.

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. Unfortunately, you can expect that same charade to continue through the course of an appeal to the Ninth Circuit.

Ed Whelan is President of the Ethics and Public Policy Center and a regular contributor to National Review Online's Bench Memos blog on constitutional law and judicial nominations.

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