Posts Tagged ‘Don’t Ask Don’t Tell’

Judge Virginia Phillips of the Federal District Court for the Central District of California yesterday ordered a worldwide injunction banning enforcement of the military’s Don’t Ask Don’t Tell law.

The 17-year-old ban on open gays serving in the military “infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution,” Phillips wrote in the injunction.

The injunction came following her ruling last month that DADT is unconstitutional. Although the ruling and yesterday’s injunction has been hailed as a landmark for LGBT rights, the government has 60 days and is widely expected to appeal before the injunction takes effect. A stay will almost certainly be granted in the meantime. “The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so,” Dale Carpenter writes at the Volokh Conspiracy.

Jason Mazzone at Balkinization notes that the Obama administration could play both sides of this touchy issue.

The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”

University of Wisconsin law professor Ann Althouse disagrees on her blog. The timing is all off, she notes, and besides, Obama has proven wishy-washy on LGBT rights issues, something that could come back to haunt him and the Democrats in November’s midterm elections.

But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It’s such a bad issue for Obama. He hasn’t done what he promised, and he’s fought against constitutional rights that he ought to be actively pursuing, whether he’d made promises or not. He’s going to have to rest on the argument that he was always all about Congress making the change. But why hasn’t his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They’ve only made everyone unhappy — people who want DADT repealed and people who don’t. And then there’s the additional issue of “activist” judges.

Andrew Sullivan places some blame on Congressional Republicans, who successfully blocked legislative repeal of DADT several weeks ago. Although their public objection was that the repeal was tacked as a rider to the annual defense spending bill, Sullivan remains pessimistic about a legislative repeal moving forward.

Here’s the thing. We have no guarantee that the Senate will pass legislative repeal of DADT in this session; and there’s every chance that a radically Christianist GOP will win majorities in one or both Houses and definitely be able to sustain a filibuster against repeal in the next session if necessary. This is not because even most Republican voters back DADT; it is because it is a party hijacked by religious fundamentalists who cannot conceive of openly gay people serving their country. Look at the party of Paladino and DeMint and Palin. You think they will support anything that could remotely be deemed pro-gay?

The Department of Justice has 60 days, until Monday, December 13, to appeal, and if the administration plans to appeal they will likely wait until after the election in three weeks to do so.


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Yesterday Senate Democrats failed to garner enough votes to invoke cloture and prevent Republicans from filibustering a defense bill with several liberal riders, including a repeal of Don’t Ask Don’t Tell and the Dream Act, which would pave the way for illegal immigrants with college degrees or military service to gain citizenship.

Courtesy of the Boston Globe

The bill was the last real chance Dems had of repealing DADT before the lame duck session or, even worse, the next congress, which could be controlled by the GOP and would therefore likely be hostile toward the measure.

Republicans noted yesterday that their opposition was generally not toward repealing the ban itself, but rather Democrats achieving a repeal by tacking it on to a defense spending bill. John McCain criticized the “blatant and cynical attempt to galvanize the Hispanic vote in regards to the DREAM Act, and also energize the gay and lesbian vote in the case of ‘Don’t Ask, Don’t Tell.’  Obviously we need a defense authorization bill. We need one very badly, and I hope that at some point we’ll address it.”

Gay rights groups, however, have placed plenty of blame on Barack Obama, Politico notes.

“We haven’t noticed any activism on this issue out of the White House at all,” said Alexander Nicholson of Servicemembers United. “It just goes to show what we’ve suspected all along: the White House never supported moving forward on this issue…..and was backed into a corner and jumped on the train as it was leaving the station.”

The New York Times is particularly damning of the 43 senators who voted to filibuster.

The two parties clashed on the number of amendments that Republicans could offer. Republicans wanted to add dozens of amendments, an obvious delaying tactic, while Democrats tried to block all but their own amendments. In an earlier time, the two sides might have reached an agreement on a limited number of amendments, but not in this Senate, and certainly not right before this election, when everyone’s blood is up even more than usual. …

History will hold to account every member of Congress who refused to end this blatant injustice.

The Washington Post declares “fairness will have to wait.”

In the end, both sides may have gotten what they wanted. Democrats can argue in campaign ads and rallies over the next several weeks that Republicans blocked funding for the troops in a spiteful move to prevent fairness in the military. Republicans can just as easily blame Democrats for sabotaging the defense bill by clinging tightly to an extreme liberal agenda. The only losers? Common sense, fairness for gay and lesbian service members and the rational policy of making the best use of all Americans who want to help defend the country.

Outside the Beltway’s Doug Mataconis tears apart both sides of the aisle.

There’s election year politics going on over this issue on both sides of the aisle, of course. After all, the Democrats could, and should, have kept the immigration bill separate from a bill dealing with the budget for the Department of Defense. Republicans, on the other hand, are resting their opposition to proceeding forward on repeal of Don’t Ask, Don’t Tell on the phony issue of a Joint Chiefs of Staff study that is concerned not with whether to repeal the rule, but how that repeal will be implemented once it becomes law. Considering that the language of the repeal specifically says it doesn’t go into effect until after the study is completed, the objections of Senators like John McCain on that ground are entirely without merit.

The Human Rights Campaign, however, remains positive and forward-thinking.

“We are in fact quite bullish that it can get done in the lame duck. It has to get done,” said HRC spokesman Fred Sainz. “Today’s loss was because of a lack of time on the amendments process. Senator Reid has no way to get the bill off the floor if he didn’t limit the number of amendments. We are very hopeful that both parties can find a way to introduce amendments and get repeal passed.”

Ed O’Keefe over at The Washington Post agreed with the HRC’s optimistic outlook.

Gay rights advocates vowed to keep pressure on the Senate, with some believing they will have enough votes to end the ban if senators votes on the compromise in December. Several moderate Republicans have said they would vote to end “don’t ask, don’t tell” only after they review a Pentagon study of how repealing the ban might impact troop readiness and morale. The study is due to President Obama and senior military leaders on Dec. 1.

As usual, the Pentagon is being tight-lipped: “We have no comment on the legislative process. This was an internal procedural matter for the Senate.”

It’s still not clear how much time DADT has left on the judicial side. Earlier this month a federal judge in California declared the 1993 policy unconstitutional. The suit’s plaintiffs, the Log Cabin Republicans, asked the judge to issue an injunction banning DADT-based discharges; the Department of Justice must respond to that request this week. In the wake of the Senate defeat, the HRC is asking the DOJ not to appeal the ruling.

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Remember the State of the Union address, way back in January? Back before the ground zero mosque and the Pakistan floods and Shirley Sherrod and the Gulf Coast oil spill and that Icelandic volcano and the winter Olympics? What was that thing Barack Obama promised?

“This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It’s the right thing to do.”

Oh right! Repealing Don’t Ask, Don’t Tell! Well, it’s September now, we’re most of the way through the calendar year and with midterms coming up there’s only a little legislative time left. How did that whole repeal thing go?

It hasn’t happened yet.

The repeal is tacked on as an amendment to the National Defense Authorization Act for 2011, a yearly bill that budgets the Department of Defense. The House passed the DoD budget, amendment included, in May, but the senate has yet to move.

Now, advocates are scrambling to lobby senators to vote on it—especially Harry Reid, who as senate majority leader has to call for a vote. A Reid spokesperson told The Advocate that the bill is “on the list of things we would like to do in the next few weeks,” but supporters aren’t willing to leave this one up to chance. According to The Blade, Servicemembers United, a gay veterans organization, has designated Thursday, Sept. 16 as a lobbying day, hoping to get the senate to take up the bill the week after.

The SU lobbyists say they plan to target several moderate Democrats, including Jim Webb and Mark Warner of Virginia, Blanche Lincoln and Mark Pryor of Arkansas, Kent Conrad of North Dakota and Judd Gregg of New Hampshire.

Everyone agrees the repeal is most likely to pass before the November elections.

“I think chances are pretty good that we’ll get that through to fruition if Sen. Reid brings it to the floor for a vote before they recess for election season,” [SU executive director Alex] Nicholson said. “If he doesn’t, I don’t know what to think. I sort of throw my hands up in the air at that point at that and say, ‘Let’s wait and see,’ because anything could happen.”

An anonymous politico in the Advocate was more worried.

The source wagered that if the Senate floor vote does not take place before the midterms, the defense funding bill would have a “50-50” shot of passing before the end of this Congress. If it is not finalized by year’s end, the repeal effort will die.

Jason Mazzone over at Balkinization is downright pessimistic.

[T]he full Senate, which was expected to consider the repeal measure over the summer, has not yet taken it up and Republicans have threatened a filibuster when and if the Senate does. … If, as expected, Republicans in November gain control of the House and gain seats also in the Senate, repeal of DADT in the next two years is extremely unlikely.

However, his next prediction, in which he assumes appeals on the Prop. 8 ruling and DOMA are reversed, is a little too far-fetched.

We have, then, a remarkable possibility. Within the next two years, federal appellate courts hold that a ban on same-sex marriage does not violate the Constitution and uphold the Defense of Marriage Act. Obama (who has said he opposes same-sex marriage) loses reelection in 2012. As a consolation prize, Congress repeals DADT and a Republican president signs the repeal into law.

Although the rulings reversals seem unlikely, Obama losing in 2012 is not, but the last sentence is pure hogwash. There are no consolation prizes in politics.


Bonus! Maybe Congress won’t have to repeal it. A U.S. District judge in California yesterday ruled DADT unconstitutional, saying it violated the First Amendment rights of gay men and women and has a “direct and deleterious effect” on the military. The judge will file an immediate injunction preventing the military from discharging soldiers on such grounds. The suit was brought by the Log Cabin Republicans. The Department of Justice is still arguing that this is a decision for Congress, not the courts, so we’ll see how this plays out in the coming days.

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The New York Times has an excellent piece about the underground gay culture at West Point, where cadets are forbidden from coming out for fear of an immediate discharge under the Don’t Ask, Don’t Tell law.

Although the centerpiece of the article is Katherine Miller, who resigned this month after deciding she could no longer pretend to be heterosexual, several more gay women and men spoke with the reporter anonymously. “They said that they knew at least 20 lesbian cadets (West Point is about 15 percent female), and that when a friend recently drew a diagram showing who had had relationships with whom, it revealed a tight web.”

One man described a particularly long underground relationship.

The male cadet in his fourth year said he had had sexual relationships with several other men at the academy. Last year, he fell for a guy at a gay bar in Manhattan who, to the surprise of both of them, turned out to be a classmate.

Back on campus, they enjoyed and suffered through a seven-month relationship on the “down low,” he said. They might share a meal at Grant Hall, but if they passed each other in company, they would simply nod hello or offer a casual back-slap. They did not attend the year-end formal dance together.

“I went alone and told the other guys my girlfriend from home had flight delays,” said the senior, who goes nightly to a deserted parking lot to make personal phone calls, for fear of tipping off his straight roommates.

Miller wrote an anonymous blog about being a West Point lesbian. She often advocated for allowing gay military members to be open about their sexualities — they might have more in common than some think.

Furthermore, my particular group of friends refers to themselves as “bros,” embodying their masculine gender identities and their affinities toward feminine women.  For example, should we be sitting down enjoying a Bud Light at Chili’s on the weekend, a comment is always made regarding the physical appearance of the waitress. And the hostess. And the girls sitting in the booth next to us… We resemble our male cadet counterparts exceptionally well. We really could be an asset to unit cohesion, bonding with men over our mutual love for women.

Interestingly, although of course all closeted military members are tacitly lying, most try not to violate the academy’s honor code, specifically the lying portion. One lesbian cadet noted that she cannot tell men hitting on her that she already has a boyfriend, as she would be lying.

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