DoJ Still Defending DADT

The Department of Justice has appealed a federal court's decision to lift a stay allowing the military to continue implementing its Don't Ask Don't Tell policy. The court lifted the stay in part based on the government's own arguments for refusing to defend the Defense of Marriage Act.

A couple of points. It's really tempting to give the government a pass here--after all Congress voted to allow repeal, and the service chiefs have all submitted their evaluations. Repeal seems imminent, so why not let the government take their time?

For one thing, discharges are still happening, as Chris Geidner reports:

And, as has been seen, DADT does remain in effect, with administrative separation board hearings proceeding and discharges continuing under DADT. Although the emergency order states there only has been one DADT discharge since the passage of the repeal act, the Air Force has confirmed three discharges and one resignation related to 10 U.S.C. 654 in 2011.

This isn't really defensible. As David Dayen points out, it's even less defensible given that the military is complying with the court's ruling, which makes the notion that "real and immediate harm" is being done deeply implausible.

Politically, the move is easier to understand. The political calculus here for the administration hasn't changed--part of how DADT got repealed was that the administration promised to allow the military to get rid of the policy at its own pace. That's why the administration was so focused on Congress instead of acting through an executive order or any other means. That's not an excuse, but it helps explain why the administration is still defending the law. 

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