An Appeal to Reason
In good news for LGBT rights, a federal court recently enjoined enforcement of the military’s “don’t ask, don’t tell” policy. However, the government may appeal the decision; a recent New York Times article notes that “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”
My colleague Bryan Wildenthal, who teaches constitutional law, disagrees, writing that:
The article mistakenly claims, in discussing whether the Obama, Administration is “likely” to appeal the injunction, that: “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”
This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice Department usually defends federal laws against court challenges. The Department has already fulfilled any claimed duty it may have had to defend the law in this case. The government is under no duty whatsoever to appeal a judicial decision following a full and fair trial. The government makes strategic decisions all the time about whether to appeal adverse rulings; it need not do so if it concludes a ruling was sound or an appeal would be a waste of time and resources. Both are true here.
If the Obama Administration chooses to needlessly prolong this litigation by fighting to reinstate the gay ban it claims to oppose, it should and will be held accountable for such an inexplicable waste of taxpayer resources and such an outrageous attack on the rights of gay Americans who only wish to serve our country.
This sounds right to me. The administration has already given this flawed policy all the defense that it deserves. By choosing not to appeal the lower court’s ruling, the administration would finally close an unfortunate chapter, and in the process send a message of support for the rights of all Americans, including the LGBT servicemen and women who risk their lives to serve their country.