The Obama administration is coming under fire for its defense of “Don’t Ask, Don’t Tell” by successfully petitioning the Ninth U.S. Circuit Court of Appeals this week for an emergency stay of U.S. District Court Judge Virginia Phillip’s injunction issued Tuesday against the policy.
Appearing on CNN’s morning show on Wednesday, White House Special Presidential Advisor Valerie Jarrett said:
“You know what, the Justice Department is required to defend the law of the land. Believe me, we wish there were another way because the President has been so clear.
And I think there are many members of the gay community who actually understand this and who are working with us to try to put pressure on Congress to repeal it. It’s clear that the vast majority of American people think that it should not be the law. And we are determined to have Congress revoke it. But we have to go through that orderly process.”
Prominent Gay activist Dan Choi, also appearing on CNN Wednesday, renounced Jarrett’s statement and then declared that the position of the White House had made him feel that he could not trust the president and his advisers, and as a result Choi told CNN, he would not vote for him:
Fueling the discontent and perceptions that the White House was playing politics as usual with the Gay and Lesbian community was the observation made to ABC News after the Ninth Circuit Court granted the stay, is this statement from former U. S. Solicitor General Ted Olson, who served under President George W. Bush, and is now one of two attorney’s representing the plaintiff’s in California‘s Prop 8 case also now before the 9th Circuit Court:
“I don’t know what is going through the [Obama] administration’s thought process on ‘don’t ask, don’t tell,'” Olson said. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.”
Olson was referring to the fact that no statutory or constitutional provisions requires the Department of Justice to appeal a ruling striking down a federal law as unconstitutional. But the executive branch has traditionally continued legal defense when “a reasonable argument can be made in [the law’s] support,” according to DOJ guidelines.
The policy is designed to honor the spirit of the independent branches of government: Congress passes laws, presidents sign them, and only courts can ultimately decide whether or not they are constitutional.