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DADT Ruling Puts Pressure on Congress to Act

September 10, 2010 - by Donny Shaw

A district court judge in California has preempted Congress and ruled "don't ask don't tell" unconstitutional, calling it a facial violation of the First and Fifth Amendments. Even though President Obama favors repealing the policy, which bans gay men and women from serving openly in the military, the ruling puts the administration in a bit of a bind.

Normally, the President would appeal any district court decision that strikes a federal statute, and, as Jason Mazzone at Balkinization explains, in this case, the administration has additional legal reasons to appeal -- shoring up the requirments of what constitutes a facial challenge, and showing deference to the military in a time of war. On the other hand, Obama and leaders in the military both want the policy repealed, and they are probably worried that Congress won't act on the repeal while the Democrats still hold enough of a majority to get it passed.

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