Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?

Professor Nan Hunter has an interesting post on her blog, Hunter of Justice, which discusses a pending LGBT rights case. The case involves a challenge to the military's discharge of a woman who engaged in "homosexual conduct." The Court of Appeals for the Ninth Circuit held that the military could not discharge the individual unless it showed that "her conduct hurt morale or jeopardized another government interest." The case will likely present the first opportunity for the Obama administration to make policy on LGBT rights issues.

As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."

Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."

My Take
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.

Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.

Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.

Reactions to Reverend Rick Warren from My Blogger Buddies

I started a link list in my post on the Reverend Rick Warren controversy, but some of the arguments are so passionate and precise that they warrant special attention. For example, check out my "pal" Professor Nan Hunter's response on her blog Hunter of Justice:

Your election is over, pal. You won't lose any votes next time over this, but do you really believe you're going to gain any?

[]I know what you're banking on - the appeal to Americans of the anti-ideologue, the leader who solves problems, who "reaches across the aisle." But when principles are important, the public also wants a leader who has a few, who stands for something, who isn't constantly trying to please and accommodate.

I am reminded of one of Barney Frank's quips from a speech I heard him give a couple of weeks ago: "Every time Obama talks about post-partisan politics, I get post-partisan depression."

[]Historians may . . . compare your moves on this issue to how FDR mollified white racists in order to get his New Deal legislation through Congress. . . but . . . at least we got the New Deal.

What will we get from you?

[Editor's note: Strong words, Professor Hunter!]

And stop by new blog buddy Christal Phillips at the blog that shares her name. Phillips, who has a highly impressive resume (B.A. from Michigan in 2005, J.D. from Michigan in 2008, currently enrolled in Columbia University Graduate School of Journalism!), does not waste any time before dissecting this issue:

This election year has proven that it is easier for Obama to stand for nothing or remain silent on controversial issues such as gay marriage and affirmative action (because the majority of gays, women, and minorities will support him anyway) while he garners support from right-wing moderates and Libertarians.

Remaining silent is bad enough. But to invite someone like Warren to this historic inauguration speaks volumes about Obama’s commitment to GLBT rights. To allow someone like Jon Favreau to keep his job speaks volumes about Obama’s commitment to women’s rights. Until Democrats hold our leaders accountable things like this will continue because they know they can get away with it and still win.

[Editors note: I disagree with calls for Favreau to resign or for Obama to fire him, because I take my cues from Clinton on this one. I agree with everything else Phillips argues.]

And Heidi Li (both Li and Hunter teach at Georgetown Law Center) of Heidi Li's Potpourri offers a response right here on Dissenting Justice:

By choosing a clergymember whose views are homophobic Mr. Obama is affiliating himself with those views. I know Mr. Obama claims that having other clergy who are not homophobic sort of cancels out the affiliation, but that isn't how it works when it comes to affiliating oneself with haters. . . . Suppose we grant that not everything Strom Thurmond ever did was bad; he was still, in my view, irredeemable, because of the virulence of his racism against blacks. In general Mr. Obama shows an alarming tendency to think that everything is ethically equal - so one can balance keeping Bob Gates in office by making some other appointments of people who opposed the war in Iraq. But that is not how good ethical judgment works.

[Editor's note: See my response to Li in the comments section.]

Related Readings on Dissenting Justice:

The Fallacy of Obama's "Diversity" Defense: Rick Warren's Views Already Have a Place at the Table

New Obama Drama: GLBT Groups Upset That Rev. Rick Warren Speaking at Inauguration

Embracing Uncle Good-But-Homophobic: Why "Reaching Across the Aisle" to Rick Warren Does Not Feel Safe to Everyone