As a judge decides, most likely by this afternoon, whether to allow the government keep enforcing Don't Ask Don't Tell, gay rights advocates are understandably furious. Why can't Obama just live up to his promises? The answer is complex.
To recap, the Log Cabin Republicans' case against DADT, in which a judge ruled the policy unconstitutional and issued an injunction against its enforcement, has seriously messed with the Obama administration's plan to pursue its gradual legislative end. Since the Justice Department has a duty to defend the laws put forward by Congress, they're not only going to appeal the decision, but have also asked the court to allow them to keep enforcing a policy Obama has specifically said he opposes. This afternoon, Judge Virginia Phillips will decide whether she'll allow that injunction to be stayed.
Could Obama have instructed the Justice Department to simply not appeal the decision, as several Democratic members of Congress urged him to do? Not without acting a lot like George W. Bush, was the consensus on a conference call this afternoon organized by the National LGBT Bar Association.
There, the panelists laid out the series of unattractive options faced by the Obama administration. Picking and choosing which laws to defend was essentially the tactic pursued by the Bush administration over torture and interrogations, and a future Republican administration could well do the same when it comes to challenges to the individual mandate in the health care reform law. (That said, at least one scholar has made the case that as the commander-in-chief of the army, the president has the authority to overturn DADT himself, but no one seemed very convinced by this.) Walter Dellinger, former acting solicitor general in the Clinton Administration, suggested a third path, in which the Obama administration could defend the current law but also create institutional precedent by arguing its philosophical opposition to it.
There was also some question, to which no one has the definitive answer yet, about whether a single judge even has the authority to issue that kind of worldwide injunction, one that wouldn't apply to just the plaintiffs in the case but also to all gays in the military. But as Georgetown Law professor Nan Hunter said, it's certain that the political cost to DADT ending that way would also be high.
That political cost is clearly what the Obama administration had in mind when it laid out its path to ending the policy, which Politico notes has not gone at all according to plan. The strategy was to get military leaders on board for a study and a slow legislative solution, easing into it rather than alienating them as Bill Clinton had. This didn't work, Politico's Josh Gerstein says, not just because the courts got in the way, but because bloggers wouldn't fall into line as established gay rights groups agreed to:
What the White House's slow-but-steady approach failed to anticipate was the rise of online activism by repeal advocates and the impatience those advocates would show based on polls indicating as many as 75 percent of Americans support "don't ask" repeal.
The result is an engaged but frustrated segment of the base that doesn't understand why the Obama administration can't get its shit together. Like the young woman who pointedly asked Obama about it at the MTV/BET/CMT Town Hall last week:
The problem with this legislative solution is that no one knows whether Congress will have the votes for it — they wouldn't even debate it last time around, and these days John McCain is reiterating that he'll filibuster anything that comes before that Pentagon study. But will anything in that study even convince him, given McCain's own shifting rationales? After all, he said in 2006 that "the day that the leadership of the military comes to me and says, 'Senator, we ought to change the policy,' then I think we ought to consider seriously changing it," and now he says he doesn't care that Defense Secretary Gates and the chairman of the Joint Chiefs of Staff want it changed. And this is with the Congress we currently have — who knows what sort of Congress we'll get after the midterms?
And then there's the thorny question of what happens if and when DADT is overturned. Court filings in the California case last week freaked people out by saying that the military needed to prepare for its overturning by considering segregated barracks and the "rights and obligations of the chaplain corps," which The New York Times rightly pointed out sounded a lot like "separate but equal." If by some miracle Obama does manage to overturn DADT this year, that'll be the next battle.
WH 'Don't Ask' Plan Backfires [Politico]
Federal Judge May Rule On 'Don't Ask, Don't Tell' [WP]
John McCain: I'd 'Absolutely' Filibuster 'Don't Ask, Don't Tell' Repeal [Huffington Post]
Don't Stay the ‘Don't Ask' Ruling [NYT]