The past 24 hours are typical of the strange, complex position of gay rights today: On the same day of a judge's injunction blocking Don't Ask, Don't Tell, the Obama administration appealed on behalf of the Defense of Marriage Act.
Specifically, the Justice Department filed its appeal in Massachusetts, citing the 1996 Defense Of Marriage Act (DOMA). In that case, Judge Joseph Tauro had ruled that the act, which denies federal benefits to couples legally married in that state, violated the equal protection clause of the constitution. President Obama is on record opposing the Defense of Marriage Act (which, like Don't Ask, Don't Tell, was passed during the Clinton administration) but a spokeswoman said, "The Department of Justice has a long-standing practice of defending federal statutes when they are challenged in court, including by appealing adverse decisions of lower courts."
And, as we noted yesterday, a California judge followed up her ruling DADT unconstitutional with an injunction barring the discharge of gay and lesbian servicemembers. The Obama administration is probably going to appeal that too, and a stay is expected, meaning the policy will stand until further notice. On the other hand, he could listen to the 21 senators who asked him and the Justice Department not to appeal.
Last night on The Rachel Maddow Show, NBC's chief Pentagon correspondent added some interesting facts to the table: That 60-day window to appeal happens after the midterms, and right around the time of completion of this Pentagon study that is supposed to settle once and for all whether gays will destroy the military.
But his claim that DADT has already kind of been lifted — in the sense that Gates is said to have stopped discharging servicemembers who were involuntarily outed — seems exaggerated given that gay servicemembers are still not free to serve openly.
Both cases highlight the bizarre predicament of having a president who is officially against DADT (though, of course, not a public supporter of gay marriage), a tenuous Democratic majority in Congress, and top Pentagon brass against the policy, and yet plenty of roadblocks to it actually happening. Partly that's because of Obama's strategic and philosophical preference for legislative compromise — and political considerations.
Salon's Glenn Greenwald, who is not known for his lenience on the president, wrote yesterday, "Criticizing the WH for not suspending DADT = very fair. Criticizing them for defending constitutionality of DOMA/DADT = not very fair," adding, "In general, you don't want the WH picking and choosing which laws to defend - down that road lies lawlessness."
Andrew Sullivan also pushed that distinction. He said that while the Obama administration's preference for legislative change and defending the current laws in court was "constitutionally sound," Obama could still be doing more than he's doing, especially before we're likely to get all those far-right members of Congress next session:
Yes, the GOP is the main party to blame. But no, this does not excuse the extra-cautious, gays-are-radioactive mindset of the Obama administration. This ruling therefore represents a chance for the president. He has the executive authority simply to issue a stop-loss order to end the firing of gay troops until further notice. If the Senate does not pass legislative repeal this session, he should use it.
In the meantime, we've got one more major part of the base of the Democratic party feeling pretty alienated these days.