By: Josh Gerstein
July 10, 2010 07:03 AM EDT
When President Barack Obama agreed to back legislation in May that could eventually repeal the military’s "don’t ask, don’t tell" policy, the resolution seemed to offer twin benefits for the White House:
Quell the anger of gay activists who accused Obama of foot-dragging on the issue, and allow the question of gays in the military to cool for a while, perhaps until after the November election.
That didn’t last long.
The issue leapt back into the news this week after the Pentagon sent a survey to 400,000 troops to assess their attitudes on whether openly gay soldiers should be allowed to serve — with questions being criticized by gay rights advocates as inaccurate, inflammatory and biased.
Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California — and Obama’s Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.
Some gay rights activists who were cheered by Obama’s decision in May now say they’re frustrated by what feels like a two steps forward, one step back approach to the issue — especially in light of Obama’s delay in seeking to repeal of the policy in the first place.
“This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays,” said Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues. “I want the Democrats to keep both houses of Congress more than most. It’s very important that we do that if gay rights are important to you. So I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. … It’s incomprehensible.”
Spokespeople for the Justice Department and the White House declined to comment for this story. However, officials have said that Justice is obligated to defend any law Congress passes as long as there is a plausible legal basis to do so, even if the current administration disagrees with the statute.
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
For the attorneys from the Justice Department’s Civil Division assigned to handle the Log Cabin case, it’s essentially a Catch-22. If they get tough or confrontational with the ex-service-members or experts called to testify, the government lawyers risk being accused of insensitivity.
If they hold back, Republicans and social conservatives could accuse the administration of taking a dive in a case it never really wanted to win.
“This is a pincer” for the government’s lawyers, said Stephen Gillers, a law professor at New York University. However, he didn’t have much sympathy. “It comes with the territory,” he said.
Even ahead of the Log Cabin case, conservative Republicans have been attacking Obama on gay rights as well, insisting that the Justice Department isn’t really trying very hard to defend the "don’t ask, don’t tell" policy.
During the confirmation hearings for Supreme Court nominee Elena Kagan last week, Sen. Chuck Grassley (R-Iowa) and Sen. Jeff Sessions (R-Ala.) suggested that the Justice Department wasn’t going all-out to fight lawsuits against the gays-in-the-military policy, and over a law denying federal recognition to same-sex marriages, the Defense of Marriage Act.
Kagan denied the charge. “I have acted in the solicitor general's office consistently with the responsibility, which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,” Kagan said.
A federal judge’s rulings Thursday holding part of the Defense of Marriage Act unconstitutional triggered a round of complaints from conservatives that the Obama administration was making a politically correct and less-than-forceful defense of that law.
“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable. The president’s personal views have nothing to do with the defense of a law passed by Congress,” said Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee.
Gillers said, though, that government attorneys were not obliged to rip apart the opposition the way a private litigator might. “Because you’re a government lawyer, you’re not given the same deference to be a junkyard dog for that client,” he said. “A government lawyer has a broader mandate.”
Written briefs in gay-rights-related cases have already landed the Justice Department in hot water with the Obama White House after gay activists complained the filings compared same-sex marriage to forms of incest and marriages involving minors. Sources say some filings in such cases are now coordinated with White House lawyers.
But the give-and-take of live courtroom testimony is even more treacherous and can’t be vetted so easily from Washington. The lead lawyer for the Log Cabin group, Dan Woods of White & Case in Los Angeles, said he expects the trial to stretch for two weeks and involve testimony by seven expert witnesses and as many as six former service members. Justice Department lawyers have said they plan to call no witnesses at the bench trial to be held before Judge Virginia Phillips, without a jury, Woods said.
With the new Pentagon survey under fire for its questions about open-bay showers and even its use of the term “homosexual,” it is almost certain that Justice Department lawyers handling the Log Cabin case will be accused of asking insensitive or homophobic questions as they cross-examine witnesses.
On the other side of the political spectrum, social conservatives say they’ll be watching closely to see whether DOJ is going easy. “We hope the administration’s politically motivated position against 'don’t ask, don’t tell' will not be a factor in defending the regulations,” said Daniel Blomberg of the Alliance Defense Fund.
The political minefield the trial presents may be one reason the Justice Department has tried mightily to head it off.
Last month, government lawyers asked Phillips to put the case on hold indefinitely because of the steps Congress took in May toward a repeal of the "don’t ask" statute passed in 1993. On May 27, the House voted, 234-194, in favor of a measure that would repeal "don’t ask" next year if top military leaders certify the repeal can be carried out without impacting force readiness and unit cohesion. On the same day, the Senate Armed Services Committee voted, 16-12, for the same language.
However, the judge noted that the bills involved have not cleared Congress and that the repeal depends on several actions by the military and Obama that may or may not happen. “Given the many contingencies involved — including the threshold contingency of congressional approval — and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative,” Phillips wrote Tuesday as she ordered the trial to go forward.
Government lawyers also have asked Phillips to deny a trial as unnecessary, to exclude all of the expert witnesses and most of the other witnesses. Phillips, a Clinton appointee, denied all the motions.
Woods pointed to one specific episode that he said highlighted the contradictions in the government’s case. He said the plaintiffs asked the government to admit that Obama said last year that "don’t ask" weakens national security and that the statement is true. The government admitted Obama made the comment but declined to say whether it was true. After a judge required the government to answer, it denied Obama’s assertion.
“They keep saying they have no choice but to defend the law because it is the law and that’s their job at the Justice Department, but the hypocrisy of this emerges all the time,” Woods said. “They are in a very awkward position.”
There are a few breaks for the administration in the trial set to start this week. The location in Riverside, Calif., far from Washington’s political press, should diminish coverage. And the ban on cameras in federal trial courts means TV coverage will have to rely on courtroom sketches.
But the gay Republicans who filed the case back in 2004 are doing their best to keep the legal and public pressure on the Obama administration. The Log Cabin group said Friday that Woods plans a daily press availability after the trial session, that principals in the case will be readily available to the media, and that the group plans a daily bulletin on trial developments.