Justice Dept. to appeal 'Don't Ask' ruling

Baptist Press
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Posted: Oct 15, 2010 5:00 PM
Justice Dept. to appeal 'Don't Ask' ruling

WASHINGTON (BP)--The Obama Justice Department asked a federal judge Oct. 14 to suspend her injunction against the military's policy on homosexual service but made clear the president nevertheless opposes the law.

In a 12-page brief, the department asked U.S. District Judge Virginia Phillips to stay her Oct. 12 order that halted worldwide enforcement of the 17-year-old Don't Ask, Don't Tell policy, which prohibits homosexuals from serving openly. The department's brief also "respectfully" asked her to rule on its request by Monday at 3 p.m. Eastern, after which the department said it would ask the Ninth Circuit Court of Appeals to stay her injunction, assuming she does not rule by then. The brief made clear the department was appealing the ruling.

The brief asked her to consider the impact her injunction would have on the military if her injunction remains in place and a higher court later overturns her decision. In that scenario, the Justice Department argued, the military will have gone from enforcing the policy, to not enforcing it, to enforcing it again.

"Repeated and sudden changes in policy regarding DADT will be enormously disruptive and time-consuming, particularly at a time when this Nation is involved in combat operations overseas," the brief argued.

The brief also noted that Obama, Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Michael Mullen "strongly" oppose the policy and want to see it reversed. It did not mention the fact that all four service chiefs -- who are members of the Joint Chiefs of Staff -- apparently support the law.

"The Court should give deference to the considered judgment of the most senior leaders of the military -- the President, Secretary of Defense, and the Chairman of the Joint Chiefs of Staff -- that a repeal of the DADT statute and its implementing regulations should follow an orderly process," the brief said.

The Justice Department also noted that the Pentagon is conducting a worldwide survey to obtain the opinions of military personnel on "Don't Ask, Don't Tell." The report is due by Dec. 1.

"The immediate implementation of the injunction would disrupt this review and frustrate the Secretary's ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government's critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces," the brief said.

The tone of the brief may not have thrilled supporters of the law, but the fact that it was appealed still was good news.

After Phillips issued her Oct. 12 injunction, the head of the Southern Baptist chaplaincy unit expressed concern over the impact her ruling would "have on religious liberty in the military."

"In order to best serve soldiers, our chaplains need to be able to practice their faith freely," Chaplain (Col.) Keith Travis, chaplain team leader for the North American Mission Board, told Baptist Press. Travis is retired from the U.S. Army. "Under this order, there's a question as to whether our chaplains would be able to offer the full counsel of Scripture to soldiers who seek their guidance. We don't believe Judge Phillips has jurisdiction over this and if this order is appealed, it most likely won't hold up."

Travis was one of 60-plus chaplains who signed a letter to Obama and Gates urging them not to reverse the policy.

"Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale," the chaplains' letter states. "Similarly, making orthodox Christians -- both chaplains and servicemen -- into second-class Soldiers, Sailors, Airmen, or Marines whose sincerely held religious beliefs are comparable to racism cannot help recruitment or retention."

In August, General James Conway, the Marine Corps Commandant and a member of the Joint Chiefs of Staff, said privacy issues should be considered when reviewing the law.

"I can tell you that an overwhelming majority would like not to be roomed with a person who is openly homosexual," Conway said at a press conference.

The man who will replace the retiring Conway, James Amos, also supports the current policy and has said he is concerned over the disruption to unit cohesion if it is reversed. Of the six members of the Joint Chiefs of Staff, four have expressed concern over reversing the policy.

The 1993 law passed by Congress mentioned privacy concerns as one reason homosexuals should not be permitted to serve openly. It said "there is no constitutional right to serve in the armed forces" and that the policy is necessary because "living conditions and working conditions" in the military -- particularly in combat -- "are often spartan, primitive, and characterized by forced intimacy with little or no privacy." It further said, "The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service."

Compiled by Michael Foust, an assistant editor of Baptist Press.

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