DADT appeal a good thing? Queer blogger Poliglot weighs in.

[agentS]

http://metroweekly.com/poliglot/2010/10/examining-the-doj-request-for.html

What's more, Stanley writes that, in part, this is done for the benefit of "gay and lesbian servicemembers." He writes:

Further, an injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court's decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court's decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.

The reason why DOJ apparently believes an appeal is justified is referenced most directly in the Memorandum of Law's argument that a stay should be entered because "At A Minimum, This Case Raises Serious Legal Questions."

In this section, DOJ attorney Paul Freeborne writes:

DADT has been challenged myriad times since it was enacted in 1993, and several appellate courts have upheld the constitutionality of this statute. Indeed, the Ninth Circuit in Witt rejected as inappropriate a facial challenge to the statute. Witt v. Dep’t of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Therefore, at a minimum, this Court’s opinion holding DADT facially unconstitutional presents serious legal questions that favor entering a stay pending the resolution of this case by appellate courts.

It's a snip of the article, but it looks like from DOJ's perspective that to press forward is a better idea than to leave an opening for a later president or Congress to reverse the decision legislatively or thru 'activist judges' in the mold of Uncle Clarence and Darth Roberts.

[ruggerson]

1. The courts ruling cannot "later be reversed"

If the administration decided not to appeal, the statute is dead. No one else has standing to appeal.

This article is based on a flawed premise.

[Unvanguard]

2. That's not really what's being said.

The argument, rather, is that not staying the injunction will cause disruption because DADT will not be ended in an "orderly" way (that's Obama's word, they quote him and others in their filing), and that it will cause uncertainty because it will be unclear what happens to gay and lesbian servicepeople in the event that an appeal is successful, the injunction is overturned, and a lot of people have come out in the interim period. The second harm comes to nothing if the Administration does not appeal, and since DADT is over if they don't appeal, the Supreme Court can't do anything about it. (Congress can, but it is extremely unlikely that Congress could pass a statute like DADT again.)

Edit: What bears watching here is how much they seriously challenge the substantive parts of Judge Phillips' opinion. Their emergency motion for a stay does effectively nothing toward that end, merely noting that there exists contrary precedent, and hence "serious legal issues" are raised by the case.

[bluestateguy]

3. How about a deliberately sham defense in Court

Have that lawyer from the Simpsons, Lionel Hutz represent the Administration, to ensure the government loses.

[CTLawGuy]

4. makes sense

the supreme court exists for a reason and that is to be the final word on what the constitution means. Important cases dealing with novel issues of law should end up there rather than being finally decided by district court judges.

[ClarkUSA]

5. There is no easy out. Walter Dellinger was on the Rachel Maddow Show making this case.

The Justice Dep't.'s orderly defenses of laws passed by Congress is constitutionally sound. Dellinger was Clinton's Acting Solicitor General. He's saying that it's wrong to allow a single district judge to overturn a law passed by Congress. He gave an example of a future Republican president finding one district judge to rule against HCR and deciding not to appeal. He also said that President Obama has done alot to move the repeal of DADT forward by making the military get on board, which is a big deal. Dellinger said that ultimately, Congress really needs to repeal DADT but that President Obama is doing a "delicate" dance to set the stage for that to happen.