Wednesday, October 20, 2010

Judge: Ask, Tell

The sound you may hear is the facade of "Don't Ask, Don't Tell" crumbling. At this point, the rumble is only intermittent, and you can only hear it when the wind is blowing the right way.

Repealing "DADT", as it's come to be abbreviated, is one of the major pieces of unfinished business from President Obama's campaign promises. Gay activists, who are probably more interested in the war for legalizing gay marriage, have locked onto this one as a good battle they can win, one in which the Administration's position is less ambiguous.

DADT in the military is a law--it's not that people who are gay cannot serve in the military, it's that those who become known to be gay cannot stay. The policy, or law, then, stipulates that people's sexual orientation is not to be the subject of inquiry, but if it becomes known that a serviceman or servicewoman is gay, the military is required to take action to separate them from active duty.

Comes Federal District Judge Virginia Philips, responding to a challenge to the law from the Log Cabin Republicans, to rule that the law is an unconstitutional denial of free speech. I will say that this case perhaps gives LCR a reason to exist--though why any gay person would want to associate with the Republican party I will never understand--and, further, I'll say that the argument seems to have some merit on its face: the law is basically a limitation on speech.

The tricky aspect, though, is that here we are dealing with the military, which gets some extra wiggle room from the courts in many regards, and with a voluntary association people make when they enlist--that is, they should know what they are getting into and should have to live by the rules.

The Obama Administration's response, to appeal Judge Phillips' ruling, is puzzling at first glance: one might think that she is facilitating the change in policy that the Administration wants. The fact, though, is that the executive branch is required to enforce the law--at least, to attempt to enforce it--that's their job.

The response to the ruling, as the case works through the courts, has whipsawed policy and left gay servicepeople and those considering enlistment with whiplash. Within days, reports came out that the Pentagon had issued rules to its recruiters not to block enlistment of those who were openly gay. I would guess they also issued directives, probably secretly, to stop booting out those already in--and at the same time, out. Just about that time, though, the Administration's appeal succeeded in getting a stay in implementing Judge Phillips' ruling--thus canceling out those moves. The Pentagon now has had to release a new directive ordering the resumption of proceedings against those in the services who somehow have "told".

In the light of these lurches in conflicting directions, the advice to gay servicepeople should be clear: keep it under wraps for a while yet. Similarly, I'd advise patience to those who would enlist and are openly gay (including thousands who have been forced out and might be considering going back in). I feel the change will come, but not necessarily through this court case.

SCOTUS--to refer to The Nine as One--would seem most likely to choose to duck this one, allowing the stay on the ruling to stand, hoping that Congress, working with the military, will eliminate the need for a final judgment. If it came to it, a majority of the Supremes would probably give a judgment against justice, liberty, and in favor of whatever the Administration and the military want (though a top Clinton legal official suggests a new wrinkle in a Times editorial, suggesting they could argue to the Court that the law is, in fact, unconstitutional), something I imagine they'd rather not do.

So, the spotlight seems likely to go back to two other venues: Congress, and the military's report on the implications of changing the law. As for the latter, it's coming out--in December, supposedly--and the word is that the military is not afraid of the change and has some idea of what they'd have to do. With Congress, of course, nothing is ever simple: the House has already passed the enabling legislation--contingent on the military's report not being contrary.

As for the Senate, I saw some of the debate a few weeks ago, just before the Senate adjourned for the election recess, in the context of the military authorizations bill. It was somewhat unprecedented, but the Republicans' bloc prevented consideration of the military's essential bill because it didn't want to take on the issue just yet. Disregarding the fact that the legislation would only end DADT if the military got behind the change, they argued that it was premature to pass legislation before the military's stance was known. The fact was that this was a simple political power struggle--the Republicans were being blocked from offering amendments to the bill they wanted considered, so they said no dice on DADT for now.

This bill, and DADT, will certainly be considered during the lame-duck session of Congress after the elections, and I feel certain that, following soon after the Pentagon's position is out will come the rights of gay military to be such. After the Pentagon makes its position official, there probably won't even be much opposition in the Senate. Which is good, because there won't be much time left to debate it.

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