latest outrage is its decision this week to seek a stay of a district court injunction ordering the U.S. military immediately to stop enforcing its "don't ask, don't tell" policy. Even though the administration is committed to repeal of the DADT policy, it is at the same time still seeking to enforce existing law in court, and seems to be dragging its feet in making promised change. Advocates for full equal rights for gays and lesbians in the military are infuriated to see the administration seem to be talking out of both sides of its mouth on this issue, when the opportunity for immediate sweeping change presented by Judge Phillips's decision, has presented itself. The reality is of course more complicated.
People should remember how outraged they felt by the Bush administration's politicization of the Justice Department, and Bush's signing statements indicating he would ignore or narrowly interpret statutes passed by Congress. In this case it appears that the Justice Department is doing nothing more than going "by the book" in deferring to Congress and enforcing existing law, even to the extent of pursuing an appeal of a statute whose constitutionality has been called into question. People impatient with the pace of change should also remember that the order declaring the statute unconstitutional is not binding on any other federal judge in America whether or not it is appealed. Therefore this ruling on the DADT statute cannot be considered definitive, and probably should be tested on appeal, unless and until the policy is changed in some other fashion, and then the court's order would be moot. There are also sound reasons for allowing the Pentagon to complete its ongoing study on implementing a new policy, and well as giving Congress a chance to do the right thing and repeal the existing policy.
Sometimes I think the problem with the most vociferous elements on both the right and the left is that they have no patience with our democratic process and with the intricacies of our legal system. Obama supporters expected their man to come in like a dictator implementing the entire liberal agenda without any input from Congress or the courts or the federal bureaucracy. And opponents on the right who have wrongly characterized the Obama administration as acting in a dictatorial way, and who defend filibusters to prevent the majority in Congress from implementing its will, also show no regard for the principles of democracy. I can understand people being frustrated with their inability to get policy preferences they feel passionately about, implemented quickly and without compromise. To me, however, it seems more important to preserve the rule of law and the democratic process, than to push through any particular policy choice in an illegitimate way.
LCR v. USA - Application for Emergency Stay