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Aaron Belkin

Aaron Belkin

Posted: May 25, 2010 08:45 AM

Jim Crow? Really?

What's Your Reaction:

I am so glad that I was wrong.

For two years, I have been predicting that Congress would not have what it takes to pass "don't ask, don't tell" repeal legislation. Yesterday, however, the Obama administration threw its weight behind a compromise that will, over the next six months or so, lead to the dismantling of the policy. This was leadership on a historic scale by the administration as well as Speaker Pelosi, Senator Levin, and Congressmen Frank and Murphy.

Within hours, skeptical members of the gay community began accusing the Obama administration and the Democratic party of selling out. Why can't we have full repeal, and why can't we have it now? Why do we have to compromise? Some even went so far as to compare the compromise to Jim Crow, the racist, post-Civil War social order in the American south.

Members of the community are understandably concerned about some of the key provisions in the compromise. Most significantly, and contrary to our highest hopes, Congress is poised to repeal the "don't ask, don't tell" law, but probably will not instruct the Pentagon to adopt a non-discrimination policy. This means that, in theory, the military could continue to discriminate against gays and lesbians. Or, even if the Pentagon starts to treat gays and lesbians on an equal basis with everyone else, a future administration could undo progress. The community fears a return to the pre-Clinton days when the gay ban was a military regulation, not a law, and the Pentagon had free license to discriminate.

Here's why that scenario shouldn't scare us. 2010 is not 1993. The Chairman of the Joint Chief of Staff and the Republican Secretary of Defense have called for open gay service. The public supports open service overwhelmingly, and that includes a majority of Republicans. Within the ranks, people just don't care. Sure, there are some die-opponents in uniform. But their numbers are small and dwindling. Polls show that the number of service members who feel strongly about the issue is trivial, somewhere around 5 or 10 percent depending on the survey.

I'm sure that future Republican administrations will try to force gay troops back into the closet. And it would be much better to have a legal promise of nondiscrimination than an executive order or Pentagon regulation. That said, the regulatory path will be durable. Ex-president George Bush tried to undo a Clinton-era executive order mandating non-discrimination among non-military federal employees, and he couldn't get away with it. As Ana Marie Cox has pointed out, racial integration was wildly unpopular when President Truman implemented it via executive order, and that policy has persisted for more than six decades.

The bottom line is this. The main obstacle to equality is the "don't ask, don't tell" law. The Obama administration has bravely pursued the only politically viable path to getting rid of that law. Equal treatment will take a little longer to achieve. But, assuming that Congress adopts the compromise proposed yesterday, the administration's achievement will be damn good, even historic. That's what counts.