Back on May 27th, I wrote a blog titled "DADT is dead." The House had passed a bill overturning it, and it was headed for the Senate, where ultimately the Republicans and some conservative Democrats blocked it -- they were even willing to vote against the military appropriations bill to which it was attached.
I still contend that DADT is dead -- we're just having an extended death struggle. There was a significant death rattle yesterday, when a judge in California declared it unconstitutional and ordered an immediate worldwide ban on enforcing DADT. If this holds, this will be an historic day, alongside the Supreme Court decision that eliminated sodomy laws nationwide.
Most notable to me in the judge's opinion was that she used the newer reasoning that DADT itself actually undermines military preparedness by reducing the number of available recruits and requiring them to accept lesser qualified enlistees and by discharging highly trained service men and women who are needed in vital positions. She also referred to the culture of lying and living in fear of exposure that DADT requires.
The Obama Department of Justice has 60 days to decide whether to appeal. Obama is clearly in favor of getting rid of the failed policy. But he has listened to the military advisers and wants to take it at a measured pace. The study he ordered of the effects of overturning it is due December 1; and he is reportedly working with Democrats in Congress on a bill to be introduced after that.
If the DoJ does not file for appeal, then the ban holds and it's over.
If they do appeal, it goes to the Circuit Court of Appeals in California, where the ban could be overturned or upheld. If it's overturned, Congress could still act on the timetable that Obama had planned. It would not be the first time the administration has appealed decisions that run counter to what it actually favors -- sometimes because there is another tactical issue involved.
It's possible they will decide to appeal, either (1) to give time for a more orderly transition that they prefer; or (2) in order to have it ruled on by a higher court and therefore given a more solid basis as precedent in future challenges. That could be risky, because the Appeals Court might not uphold the decision.
These are details and delaying tactics though. DADT is dead, no question about it. It's just that sometimes death takes a while.
Ralph
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The Service Members Legal Defense Network has issued a warning to GLBT service members not to come out during this period when the uncertainty of it all makes it very dangerous to let down your guard.
ReplyDeleteThey think signs point to the administration appealing and asking for a stay in the ban pending appeal. This could tie it all up in courts for a long time -- during which time service members could be outed and discharged.
I can't imagine that is what Obama wants -- my guess is that if they appeal, it is for one of the reasons I mention above, ie a tactical matter. So why would they try to discharge anybody while that happens?
Well, they have continue to process discharges even after their saying it is going to be overturned. Why? I don't know.