An internal argument is brewing among the nation’s top Democrats, who are divided about what to do now that a federal judge has ordered the military to stop enforcing its controversial Don’t Ask, Don’t Tell policy.
Following the ruling on Tuesday night, Barney Frank, the openly gay congressman from Massachusetts, said he was “very pleased.” He also said that he’s confident a lame-duck Congress will be able to muster a congressional repeal to follow-up the judge’s injunction.
Possibly standing in the way of Frank’s hopes, however, will be the Obama White House, which has so far remained mum about whether it will order the Justice Department to appeal the ruling—though, if very recent history is to be believed, it will.
Hot on the heels of Tuesday’s Don’t Ask, Don’t Tell decision came news that the Obama DoJ had appealed a different US District Court ruling, this one by Judge Joseph Tauro, who in July ruled that a law defining marriage as between a man and a woman was unconstitutional. Sitting in Massachusetts, Tauro said that 1996’s Defense of Marriage Act violates the equal protections guaranteed in the Fifth Amendment. Still, Obama, who has said he thinks both DOMA and DADT are bad policies, has continually sent Justice to put the kibosh on challenges to DOMA.
"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," said DoJ spokeswoman Tracy Schmaler. "The Department of Justice has a longstanding practice of defending federal statutes when they are challenged in court, including by appealing adverse decisions of lower courts."
This in mind, it seems unlikely that Obama will allow the Don’t Ask, Don’t Tell injunction to go uncontested. The DoJ has 60 days from the date of the ruling to issue an appeal, but Rep. Frank believes it won’t need to take any action at all. “They've got 60 days,” he said. “We will have the lame-duck session convene in less time than that. Clearly what [the DoJ] should do is wait and see. I hope they don't appeal it at all, but it would be really foolish to appeal it before we can repeal it."
-Cord Jefferson is a staff writer at The Root. Follow him on Twitter.