[This is a side discussion relating to this post, "Equality and the Rule of Law."]
In that vein, the brief filed on Monday is far less over-the-top than the brief filed this past year by DOJ in defense of DOMA. This brief goes through the law and explains the argument of why, under that law, the DADT challenge brought by the Log Cabin Republicans should fail.
Despite suggestions made that the use of comments made in 1993 by then-Chairman of the Joint Chief of Staff Colin Powell is inappropriate because he said earlier this year that his view has since changed, the question before the court is whether Congress had a basis in 1993 to reach the conclusions it reached then. Clearly, Powell’s comments at the time were one of the things considered by Congress in passing the law, which is why advocates of repeal heralded his comments earlier this year. Although DOJ would have done well to note that Powell’s views had changed, that fact is irrelevant to the legal question at issue.
Regarding that legal issue, it also should be noted that LCR has brought a facial challenge to the law. A facial challenge to a law requires the court hearing the case to find that the law in question is unconstitutional in all circumstances. This is contrasted with an “as-applied” challenge to the law, which presents a court with deciding only if the challenged policy is unconstitutional as to that individual. Obviously, it is far more difficult to succeed in a facial challenge.
The only real issue that I have with the brief is its treatment of LCR’s witnesses. I would not have used the quotation marks around “experts,” as was done in the DOJ brief, although it does seem that the reason for doing so was because DOJ’s lawyers view the testimony given by LCR’s designated experts as irrelevant to the questions in dispute in the case. As such, DOJ would – it appears – challenge their designation as such if the matter were to go to trial. Regardless, the scare quotes, as they often are called, aren’t necessary.
Also, if – as was claimed this afternoon by the Palm Center’s Nathaniel Frank and Aaron Belkin – the Justice Department mischaracterized or misrepresented their views, then that is a legitimate criticism that should be addressed immediately.
Popularity: 11% [?]
Chris Geidner is the senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found