New Legal Analysis: White House Can Let Judge End Military Gay Ban

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Injunction from Judge Phillips could halt all "don’t ask, don’t tell" discharges

When Congress debated 'don't ask, don't tell' in 1993, the constitutional landscape was different than it is today

Today, the Palm Center released a new legal analysis prepared by Legal Co-Director and Law Professor Diane Mazur suggesting that the White House has a strong foundation for not filing an appeal to the recent case which declared “don’t ask, don’t tell” unconstitutional, Log Cabin Republicans v. United States.

The memo concludes: “The Department of Justice has discretion to decline appeal of Judge Phillips’s September 9, 2010 Memorandum Opinion in Log Cabin Republicans v. United States holding 'don’t ask, don’t tell' unconstitutional. No mandatory duty or obligation requires the government to appeal.”

"When Congress debated 'don't ask, don't tell' in 1993, the constitutional landscape was different than it is today,” stated Professor Mazur, adding: “In 2003, the Supreme Court held in Lawrence v. Texas that the Constitution protects the liberty of all persons, straight and gay, to choose their personal relationships without interference from the government, unless the government has a good reason. In the Log Cabin Republicans case, the government was unable to produce any such reason. Judge Phillips recognized that ‘don't ask, don't tell’ can no longer be justified under current constitutional doctrine, and President Obama is not required to argue otherwise. He need not defend laws that are based on old, discredited constitutional assumptions."

This analysis comes one day after a Senate vote failed to override a filibuster on a motion to proceed to consideration of the National Defense Authorization Act of FY2011. The vote failed due to the inclusion of language within the bill to conditionally repeal the "don’t ask, don’t tell" law. “Professor Mazur’s analysis delivers the final argument on whether the White House has the option to let Judge Phillips' ruling on ‘don’t ask, don’t tell’ stand,” stated Christopher Neff, Deputy Executive Director of the Palm Center. He added: “The answer is clear: the Obama Administration can end ‘don’t ask, don’t tell’ by not appealing this ruling.”

The Palm Center is a research institute of the University of California, Santa Barbara, committed to sponsoring state-of-the-art scholarship to enhance the quality of public dialogue about critical and controversial issues of the day. For the past decade, the Palm Center's research on sexual minorities in the military has been published in leading social scientific journals. The Palm Center seeks to be a resource for university-affiliated as well as independent scholars, students, journalists, opinion leaders, and members of the public. For more information see http://www.palmcenter.org.

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Cathy Renna

Christopher Neff
Palm Center
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