The First Amendment's religious liberty clauses, especially the principle they produce that calls for a certain amount of separation between government and religion, are drawing extra-special attention thanks to Tea Party-backed candidates for the Senate.

The Del. Senate candidate Christine O'Donnell appeared, during a debate, to be surprised that the First Amendment has long been interpreted by the courts, as well as constitutional framers James Madison and Thomas Jefferson, to require a separation between government and religion.

And as The Huffington Post reports the Tea Party favorite in Colorado, Ken Buck, disagrees "strongly" with the principle of the separation of church and state. Like O'Donnell and the Tea Party-backed senate candidate in Nevada, Sharron Angle, and for that matter many religious right advocacy groups, Buck is disconcerted over the fact that the words do not appear literally in the First Amendment.

But as American University law school professor and Maryland state senator Jamie Raskin points out in this ACSblog post, the principle has been well-established in the federal courts, in part, due to writings by Madison and Jefferson. As Raskin notes, Jefferson once wrote that the prohibition against "an establishment of religion" and the free exercise of religion builds "a wall of separation between church and state." Madison wrote in 1822 that religion and government "will both exist in greater purity, the less they are mixed together."

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In recent times the nation's largest business lobby, the U.S. Chamber of Commerce, has fared much better before the Supreme Court says a new study from the Constitutional Accountability Center (CAC).

The study, "A Tale of Two Courts: Comparing Corporate Rulings by the Roberts and Burger Courts," maintains that the Chamber's victories before the high court has increased since the ascendance of a five-member conservative majority on the high court. In a press statement about the study, CAC says that "under the leadership of Chief Justice Warren Burger, the Chamber lost more cases than it won (a percentage of 43%) and, perhaps even more important, there was no similar ideological division among the Justices in favor, or against, the Chamber's position. Justice Brennan, the Burger Court's liberal lion, voted for the Chamber 43% of the time; then-Justice Rehnquist voted for the Chamber 46% of the time."

Recently Justice Stephen Breyer told Bloomberg News that his own study of high court cases involving business interests did not show a pro-corporate bent. He maintained that business groups are not doing any better than they have in the past.

CAC President Doug Kendall told Bloomberg, "Justice Breyer's flat wrong in suggesting that the chamber has always done well before the court. The Supreme Court's modern pro-corporate tilt - and particularly its sharp ideological split in favor of the U.S. Chamber of Commerce - are relatively new developments, traceable to the court's conservative majority."

Earlier this year, CAC issued a report that the Roberts Court's conservative wing more often than not sides with corporate interests. According to the study since the arrival of Justice Samuel Alito in 2006 a "cohesive five-justice majority on the Court has produced victories for the Chamber's side 64% of the cases overall, and 71% of closely divided cases."

CAC's study is available here.

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The lawsuits lodged against the Obama administration's landmark health care reform law, the Affordable Care Act, raise various constitutional challenges, but none as potentially damaging to the law's survival as those aimed at its so-called individual mandate. That provision requires Americans to purchase health care insurance starting in 2014 or pay a tax.

The state attorneys general behind the lawsuits in Virginia and Florida target that provision arguing it exceeds congressional power to regulate interstate commerce. They claim that Congress cannot force people into the health insurance market. But as numerous constitutional law experts have argued, Congress's commerce clause power, though in recent times limited, has largely been viewed by the Supreme Court as expansive.

As the Los Angeles Times put it in a recent editorial, "It's not that the Constitution gives Congress unlimited authority - clearly, it doesn't. But where interstate commerce is concerned, the Supreme Court has given Congress considerable leeway to decide how to achieve its regulatory goals. That includes the leeway to do things with which most Americans disagree."

The editorial continues:

To reduce the number of uninsured Americans, the law requires insurers to cover people they've traditionally tried to shun - those with preexisting conditions - and not charge them higher premiums based solely on their medical histories. If the law stopped there, however, many healthy people would respond by waiting to buy insurance until they needed treatment, and then drop it when they were healthy again. That gamesmanship would trigger a vicious cycle of premium increases, making insurance even less affordable and defeating a central purpose of the reform.

In a column for Newsweek, the National Senior Citizen Law Center's Simon Lazarus wrote that opponents of the health care reform law have employed a deceptive campaign to undermine the public's understanding and support of the law. Those opponents Lazarus maintained are fostering "doubt about whether, even if the experts are right about constitutional law as it stands, existing precedent gives the federal government too much power."

But the question regarding the individual mandate is not whether Congress can regulate inactivity or force people into the health care market, instead Lazarus writes, the question is really whether Congress can "ensure that all persons have access to affordable health care insurance, even if they have preexisintg conditions?"

"If the answer to that question is yes - as it surely is - then questions about the mandate beget the same answer, as a matter of law or common sense. This is because, without the mandate, guaranteeing affordable coverage of preexisting conditions ... simply won't work."

As the Los Angeles Times noted the federal judges in Florida and Virginia in their procedural rulings have revealed sympathy to the opponents' arguments. The only judge in the country to rule on the constitutionality of the mandate has supported it. Earlier this month, U.S. District Court Judge George Steeh ruled in a lawsuit brought by the conservative Thomas More Law Center that the individual mandate was not an overreach by Congress. "Far from ‘inactivity,' by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2003, onto other market participants," Steeh wrote in Thomas More Law Center v. Obama.

For more on the law's provision requiring a shared responsibility for overhauling the nation's health care system, see an ACS Issue Brief by Lazarus.

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Not all media coverage of the midterm elections has dwelled on predictions of a power change in Washington - some outlets have focused attention on money flowing anonymously into this year's election cycle. For example, The New York Times reported last week on the enormous amounts of money that have been pumped into the U.S. Chamber of Commerce, which has allowed it "to become one of the most well-financed critics of the Obama administration and an influential player in this fall's Congressional elections."

Much of campaign financing coverage notes the impact the Supreme Court's 2010 opinion in Citizens United v. FEC, which overturned decades of precedent regarding the regulation of corporate campaign financing. In an interview with The Nation's Chris Hayes, Harvard law school professor Lawrence Lessig acknowledges the troubles of the Citizens United outcome, but says our democracy was already corrupted by a campaign financing system that has driven droves of politicians to be beholden to large funders.

Lessig, director of Harvard's Edmond J. Safra Foundation Center for Ethics, told Hayes, "Our democracy was already broken before Citizens United." Before that decision was issued earlier this year, we "already had a system that drove members to be dependent upon funders rather than upon citizens, and that dependency is what is corrupting of the original conception of what a democracy would be - as Federalist 52 put it, our government was to be an entity where our Congress would be dependent on our people alone."

Lessig continued:

Well, it is absurd to think that our Congress is dependent upon our people alone today, and that's because of our current political financing system. So a lot of people want to spend a lot of energy trying to overturn Citizens United - and I'm the first to say that Citizens United is going to create all sorts of bad influences - but overturning Citizens United is not going to solve the problem.

The first course of action, Lessig maintains, is to push for reform "that radically changes the economy of influence that members live under when they raise money to run for Congress." As an example, he mentioned the Fair Elections Now Act, which he said would make it possible for candidates to run campaigns "where they took no more than $100 dollars from any citizen." Those contributions would be matched by the government, and would help produce a much different crop of candidates, he said.

If such change were in place before the next election cycle, Lessig said it would "produce a significant number of congress people" not beholden to the kinds of interests fueling today's election cycle. And those lawmakers, Lessig said, "could then begin to think about what other reforms might be necessary to make sure we have the kind of election cycle that our framers intended us to have."

Audio of the Lessig interview is available here.

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By Sherrilyn Ifill, Professor of Law, University of Maryland School of Law

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Last week, most of the mainstream media seemed anxious to move on from the story of Virginia Thomas' bizarre early morning phone call to the office of Professor Anita Hill, in which she invited Hill to apologize to Thomas for "what you did with my husband." But The Washington Post's subsequent, explosive interview with Clarence Thomas' former girlfriend who has corroborated much of Anita Hill's 1991 testimony before the Senate Judiciary Committee, has laid to rest the idea that this story is over. And indeed this episode is deserving of more attention. It's important because there are so many people who have no real memory of the Thomas confirmation hearings, or why they were so important. In their attempt to get past addressing Mrs. Thomas' bewildering conduct, some media outlets had dismissed the Thomas hearings as a mere "he said/she said" exchange of accusations. In fact, the Thomas hearings - both before and after the statements raised by Anita Hill were made public - constituted an important watershed moment in confirmation hearings, in our understanding of sexual harassment in the workplace, and even in our racial discourse. The temptation by the media to treat this as a non-story or to minimize its significance should be resisted.

And in fact that's part of the story. Perhaps in part because the Thomas hearings were so painful, so ugly, so disturbing, Justice Thomas is often given a pass by the press. Some of his most inflammatory decisions on the Court - often in concurrence or dissent - are rarely remarked on by Supreme Court writers and bloggers. As I've suggested, even the problematic nature of some of Mrs. Thomas' political activities have been soft-pedaled by court watchers. But we should not soft-pedal history. These were the hearings at which Thomas assured the Committee that once confirmed he would hold no allegiance to the conservative views he'd advanced as a conservative darling and former member of the Reagan Administration. Long before Chief Justice John Roberts promoted the image of the "umpire" judge who just "calls balls and strikes," Thomas introduced us to another empty sports metaphor - promising that he would "strip down like a runner" and shed his earlier ideological views to be an impartial justice. Thomas also sought to reassure the Judiciary Committee and the public, that despite his earlier harsh words about civil rights leaders, and his own less than stellar stewardship of the Equal Employment Opportunity Commission (EEOC), that he felt empathy (yes, empathy) for those less fortunate. He insisted that when from his office he could see a bus of prisoners in Washington, D.C., he felt, "there but for the grace of God, go I."

But it was the hearings after Anita Hill's statements came to light that truly riveted the nation. Hill had worked for Thomas at the EEOC. Both were conservatives. Thomas had been serving on the D.C. Circuit Court of Appeals for little over a year when he was tapped by President George H.W. Bush who implausibly called the unremarkable Thomas, the "best candidate" for the job.

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AT&T Mobility v. Concepcion, which will be argued before the Supreme Court in November, is a case that "at first blush appears rather technical," hinging on a question of federal preemption. But "the stakes are high" in the case, explains Georgetown University Law Center professor Nina Pillard during an ACS panel, because the case has the potential to allow companies to ban class-actions in their standard-form contracts, thus eliminating the "classic way of enforcing rights that affect groups of people."

Pillard set the stage for a lively and impassioned debate about the case, which could have significant implications for consumer and civil rights.

AT&T's lawyers are arguing that California state courts have discriminated against arbitration clauses in holding that those that do not allow class actions are unconscionable, explained Stephen J. Ware, a law professor at the University of Kansas School of Law. This is a violation of the Federal Arbitration Act, a federal law that should trump state law, AT&T argues.

But F. Paul Bland Jr. said the case is absolutely not about arbitration clauses.

"The case is about whether AT&T can ban class actions," he said. " ... This case is about if you take a term, a ban on class actions, that is in a given case exculpatory, and you take it out of a general contract, and you put it in a contract term that has the label over it that says arbitration clause, does the phrase arbitration clause over the paragraph strike down the normal California rule against exculpatory clauses?"

Alan Kaplinsky, a partner at Ballard Spahr, said the statistics cited by some courts show that consumers do better with individual arbitration than with class cases, because they win more money, the cases take less time, and they are likely to receive attorneys' fees.

But Bland called a class action ban a "get out of jail free card" for corporations, who may be bilking 100,000 people out of $30, only 100 of whom pursue individual arbitration. By not allowing class actions, the company never has to pay the remaining 99,900 people, Bland explained.

Watch the full discussion below.

 

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By Paul M. Secunda, an associate law professor at Marquette University Law School.

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Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.

The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies. In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Republican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:

[T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made "pursuant to" their official duties.

Without doing any legal analysis, just wrap your mind around that statement for a second.

The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?

And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).

But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me. First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern. That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.

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Thirteen years ago, as the Senate was holding up confirmation of President Bill Clinton's judicial nominees, then-Chief Justice William H. Rehnquist capitalized on his year-end report to criticize the Republican-controlled Senate for its inaction, Linda Greenhouse recalls in her Opinionator column in The New York Times.

"[V]acancies cannot remain at such high levels indefinitely without eroding the quality of justice," Rehnquist declared on New Years Eve 1997. "The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry, it should vote him up or vote him down to give the president another chance at filling the vacancy."

At that time, nearly one in ten seats on the federal courts were empty, Greenhouse reports. Today, the statistic is nearly one in eight, and the Senate is once again using procedural tactics to block up-or-down votes on nominees.

What better statement, then, could Chief Justice John G. Roberts Jr. make during his own year-end address this year than to "take a page from his mentor" and implore up-or-down votes on nominees, Greenhouse suggests.

She writes:

[T]here's no doubt that the Senate Republicans deserve the lion's share of the blame for refusing to permit even uncontroversial judicial nominees to get a floor vote. The Senate ended its pre-election session last month leaving 23 nominees hanging, including 16 who had had hearings and received unanimous favorable votes in the Judiciary Committee. In other words, sheer obstructionism, rather than legitimate disputes over judicial philosophy, is the source of the problem, and here is where Chief Justice Roberts comes in - or can, if he cares to.

Last year, Greenhouse points out, Roberts used his year-end address to "thank the judges and court staff throughout the land for their devoted service to the cause of justice."

"I'm willing to assume that last year's baffling report was the result of judicial modesty rather than an idea deficit," Greenhouse writes. "In any event, I look forward to waking up on New Year's Day to this headline or its reasonable equivalent: ‘Senate Imperils Judicial System, Roberts Says.' "

Visit JudicialNominations.org to learn more about the judicial vacancies crisis and track developments.

 

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The struggle for an independent judiciary and the politicization of judging, at all levels of government, was made clear this week when a retiring administrative law judge on the Commodity Futures Trading Commission alleged that his colleague made a secret deal with a former Republican chairwoman of the agency to rule against all plaintiffs. As The Washington Post reported, George H. Painter, one of two administrative law judges who adjudicate complaints by investors alleging violations of the agency's rules, wrote in a notice that the other judge secretly promised the chairwoman that he would never rule in a complainant's favor. "A review of his rulings will confirm that he fulfilled his vow," Painter wrote in the document, which he submitted at the time of his retirement announcement. Painter said he could not "in good conscience" allow any of his pending cases to go to Judge Bruce Levine, and asked the agency to find an administrative judge from elsewhere in the federal government to take on his cases.

Meanwhile, Linda Greenhouse questioned whether Chief Justice John Roberts would  "take a page from his mentor," former Chief Justice William H. Rehnquist, and use his end-of-the-year announcement to draw attention to the vacancy crisis and chide the Senate for its inaction.

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By Jamie Raskin, a professor of constitutional law and the First Amendment at American University's Washington College of Law and a Maryland State Senator. He is the author of several books, including We the Students: Supreme Court Cases for and about America's Students, and founded the Marshall-Brennan Constitutional Literacy Project.

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Delaware Republican Senate nominee Christine O'Donnell looked ridiculous Tuesday when she questioned whether a prohibition on establishment of religion is actually part of the First Amendment. She was on only slightly firmer ground when she aggressively challenged her Democratic rival, Chris Coons, to show her where the "separation of church and state" is found in the First Amendment. Of course, the phrase does not literally appear in the First Amendment, but it was President Thomas Jefferson's cogent recapitulation of what the Establishment Clause and Free Exercise Clauses together created for the American people, and we should take this opportunity to celebrate his indispensable metaphor.

In his famous 1802 Letter to the Danbury Baptists, who sought his help in escaping a state tax selectively imposed to fund the Congregationalist churches, Jefferson developed the image that has indeed become our national shorthand for understanding the First Amendment's religion clauses. Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and state. (emphasis added)

Notice that this original explanation of the "wall of separation" depends centrally on the freedom of each person to follow his or her own religious and spiritual path without official interference. The state may not endorse specific religious doctrines and impose them on the public because that slide into theocracy would destroy or threaten the religious freedom of everyone who belongs to another religion (or none at all). Conservatives who attack the wall of separation are attacking the very idea that has given Americans the freedom and security to become among the most religious people on earth.

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Following a recent ACS panel discussion on the future of gun control regulation in the wake of landmark Supreme Court cases regarding Second Amendment rights, UCLA School of Law Professor Adam Winkler told ACSblog that those high court cases provided little guidance to lower federal courts on handling constitutional challenges to gun laws.

Winkler, co-author of a recent ACS Issue Brief called "The Standardless Second Amendment," said that the vast majority of lower federal courts have upheld gun control regulation, but on divergent standards. Winkler said the lower federal courts are "generally confused about how to address the constitutional question" in cases involving gun control laws. As long as the lower court cases remain unsettled on what standard to apply to Second Amendment challenges to gun control laws, the more likely the Supreme Court will have to weigh in again on the matter.

Winkler also noted his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America. "The story of America's so-called gun culture is that we've always tried to balance gun rights with reasonable efforts to protect public safety by regulating the most dangerous people or the most dangerous guns," Winkler said of the book, which is set to be published next year. Winkler's interview is below and the entire panel discussion is available here.

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If you haven't already seen it, the video below is a must-watch for those seeking humor in the worst stereotypes about the law profession.

The video features two animated figures with robotic voices, one a jaded lawyer and the other an aspiring law student who professes her love for the Constitution and her desire to help people.

 "It must be such a thrill to argue a constitutional issue," the girl says.

"Listen, there are like three lawyers in America who argue constitutional issues," the lawyer responds. "They all went to Harvard and graduated in the 1970s. Did you go to Harvard?"

"I love the privileges and immunities clause," she responds.

Lawyer: "Do you have a time machine that you can use to go back to the 1970s and graduate with those guys?"

Girl: "The Constitution is so amazing."

Lawyer: "You are going to make me take all my Ambien at the same time and then chase it with a glass of scotch."

Girl: "I really want to work on the important issues of the day."

Lawyer: "Do you consider a breach of contract case between two giant software companies an important issue of the day?"

Watch the video below. If the clip leaves you searching for more positive inspiration, Justice Sonia Sotomayor recommends Twelve Angry Men.

 

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By Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law and a preeminent scholar on constitutional law.

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Since Richard Nixon ran for President in 1968, conservatives have sought to change constitutional law in a conservative direction. To a large extent, in virtually every area of constitutional law, they have succeeded. The focus of my new book, The Conservative Assault on the Constitution, is to describe what has happened and how conservative presidents and justices have lessened constitutional protections and moved constitutional law significantly to the right.

Between 1968 and 2009, Democratic Presidents appointed only two justices to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, while Republican Presidents appointed a dozen justices. Many Republican-appointed justices - like Antonin Scalia and Clarence Thomas - are as conservative as any who have served on the Supreme Court. John Roberts and Samuel Alito have been everything that conservatives could have hoped for and liberals could have feared.

That, of course, leaves Anthony Kennedy as the swing justice on the Court. But Kennedy, an appointee of President Ronald Reagan, is much more likely to side with the conservatives than with the liberals. Last year, there were 12 5-4 decisions split along ideological lines, with Roberts, Scalia, Thomas and Alito on one side, and Stevens, Ginsburg, Breyer, and Sotomayor on the other. Justice Kennedy sided with the conservatives in nine of these dozen cases and with the liberals in three. The year before, there were 16 ideologically divided 5-4 cases and Justice Kennedy sided with the conservatives in 11 of 16.

The success of these justices in remaking constitutional law in a conservative direction must be understood as part of a larger conservative agenda. Because the Supreme Court decides cases one at a time, because not every case has come to a conservative result, and because Roe v. Wade has not been overruled, it is easy to underestimate the dramatic successes that conservatives have had.

The focus of my book is to show what has happened across many areas of constitutional law. I examine six areas. Chapter 1 focuses on how a series of Supreme Court decisions in the 1970s, 1990s, and the last decade have led to schools that are increasingly racially separate and unequal.

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Boston University Law School professor Jay Wexler, also an expert on constitutional law, is offering Delaware Senate candidate Christine O'Donnell some help with handling questions on the Constitution, and in particular, the amendment that includes the religious liberty clauses.

As Wexler notes in this blog post, his recent book Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, has been widely lauded. For example Publisher's Weekly said the book's "lucid explications of difficult constitutional concepts and the vagaries of Supreme Court rulings are superb, providing readers a deeper understanding of the First Amendment and Supreme Court jurisprudence."

In a recent debate with her Democratic opponent, Chris Coons, O'Donnell appeared to find it news that the First Amendment guarantees a separation of church and state. As The News Journal, a Delaware daily, noted the crowd of mostly law professors and students at Widener School of Law "gasped" when O'Donnell maintained that the First Amendment does not require a separation of church and state. She called the principle a "myth."

Wexler writes:

I've watched the footage, and I think that probably she was trying inartfully to make the old point that the First Amendment does not actually include the phrase "separation of church and state." This is true, but irrelevant. The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Supreme Court has long interpreted these two clauses (the Free Exercise Clause and the Establishment Clause) to require a certain amount of separation between church and state, with the details of what exactly that means with respect to various specific controversies worked out over time through lots of cases examining particular facts.

So Wexler has offered some help. "I have written a book about exactly what the religion clauses mean, in a way that I think even she could understand," Wexler says. "So, here's my offer to you, Ms. O'Donnell. If you would like a copy of my book Holy Hullabaloos: A Road Trip to the Battleground of the Church/State Wars, to help you prepare for your next political debate, I would be absolutely delighted to send it to you free of charge, and I'll even pay for the postage."

For more information about Wexler's book, see his ACS Book Talk post here.

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U.S. District Judge Virginia Phillips rejected the federal government's request that she stay her ruling of last week that orders the military to stop enforcing "Don't Ask, Don't Tell," which bars openly gay service members.

Judge Phillips called the government's arguments to stay her injunction "conclusory and unpersuasive," TPM's Rachel Slajda reports. As widely reported, the Pentagon yesterday instructed recruiters to accept openly gay applicants.

In her initial ruling from last month, Phillips said the military's policy "infringes on the fundamental rights of the United States service members in many ways. In order to justify the encroachment of these rights, defendants faced the burden at trial of showing the don't ask, don't tell act was necessary to further the government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden." Earlier this month Phillips ruled in Log Cabin Republicans v. U.S. that an injunction would be issued against nationwide enforcement of the policy. Today she officially rejected the government's request for her to stay the injunction. Politico has a pdf of Judge Phillips' order here.

UCLA law professor Adam Winkler told the National Law Journal, "Part of the argument for staying the injunction is it will cause irreparable harm on the military. If the military can just stop enforcing the policy immediately, as they announced they're doing, it's hard to see how it really hurts the military."

The New York Times notes that the administration plans to continue its legal efforts to overturn Judge Phillip's injunction. The administration has repeatedly said the military policy should be repealed, but that it must stick to a tradition of defending laws passed by Congress. During a recent conference call hosted by ACS and the National LGBT Bar Association several legal experts, including former Acting Solicitor General Walter Dellinger, discussed the administration's efforts to defend in court the Defense of Marriage Act (DOMA) and "Don't Ask, Don't Tell." Regarding its legal defense of the military's policy, Dellinger said, "If the president believes that a restriction is harmful to national security, and here the president has said that it is, then surely from the president's own viewpoint it is unconstitutional and he ought to feel free to tell the court that." Audio of the conference call is available here.

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