Yesterday, federal district judge Virginia Phillips told the federal government that she would not let its policy against gays in the military to continue until their appeal of her ruling reached a higher court. There was rejoicing, and gays and lesbians, for the first time, were able to walk into recruiting stations and enlist.
And then, this evening, the rejoicing stopped, at least for now. A three-judge panel from the 9th Circuit Court of Appeals issued a temporary stay of Judge Phillips’ ruling “in order to provide this court with an opportunity to consider fully the issues presented.” The court will hear the government’s full appeal in February, and tonight’s decision buys them a bit of time.
What exactly is the White House doing here? Politico’s Josh Gerstein notes that the Justice Department made clear in its filing that the administration “does not believe in [the “don’t ask” statute] as a matter of policy and strongly believes that Congress should repeal it,” but the Department is following a tradition of “defending the constitutionality of federal statutes as long as reasonable arguments can be made in support.” Obama is silent on whether or not he believes the law is constitutional; he just says that defenders can make a “reasonable argument” in its favor.
This position has angered liberals, but it does set a clear precedent. If a conservative district judge strikes down something like the health-care bill, the administration might be able to temporarily keep the New Deal alive by pointing to its decision to support “don’t ask, don’t tell.” At that point, though, they’ll have much bigger problems than inconsistency.