Yesterday's ruling by a federal court that the military's Don't Ask, Don't Tell is unconstitutional couldn't come at a better time for gay rights. Just last month, a different federal court, also in California, invalidated that state's ban on same-sex marriage--a decision that some predict could be upheld by the Supreme Court. The tide seems to be surging for equal rights for all, regardless of sexual orientation.
The latest landmark decision, however, may not stand for long. In the 17 years since the Clinton Compromise--when the tenderfoot president backed down from his campaign promise to repeal the ban on gays in the military, permitting instead gays to serve only if they were closeted--the federal courts have repeatedly upheld the policy. The court that will hear the appeal of yesterday's ruling, the U.S. Court of Appeals for the Ninth Circuit, has itself weighed in before, siding with the government.
Any case of this magnitude could spark the interest of the Supreme Court. Yet while the Court has been favorable to gay rights in landmark cases, in this area like so many others the Court is split on ideological lines, with Justice Anthony Kennedy the swing vote. Even though Kennedy has been a relatively strong vote for equal rights, he also believes the military, whose mission is so vital to national security, should receive special deference. Kennedy's tolerance may stop at the barracks door.
Before he joined the Supreme Court, Kennedy was a judge on the Ninth Circuit when he directly addressed the conflict between gay rights and military deference. Ruling on the more draconian, pre-Clinton policy, Kennedy voted to uphold the complete ban on gays in the military because "constitutional rights must be viewed in light of the special circumstances and needs of the armed forces." The "tensions and hostilities" created by gay personnel "might undermine" military duty and discipline, he wrote. "In view of the importance of the military's role, the special need for discipline and order in the service," Kennedy explained, the gay ban was justifiable.
Military deference has a checkered history in American jurisprudence. The most shameful example was the Korematsu decision, which upheld the internment of people of Japanese descent in World War II. In recent years, the courts have struggled with how much to defer to the top military officer--the President as Commander-in-Chief--in terrorism cases; here the Court has asserted a judicial role, albeit only a limited one.
One thing the opponents of Don't Ask, Don't Tell have going for them is the unpersuasiveness of the military's claim that gay servicemembers will undermine cohesion and military effectiveness. This was the same claim that the military erroneously made about integration of the races in the 1940s--a time marked by violent racial tensions far more commonplace than conflicts today among gays and straights. And, of course, gay people are already serving today in the military, regardless of the policy, with no ill effects.
Still, the courts are historically reluctant to step on the military's toes, which means judges can't be relied upon to end Don't Ask, Don't Tell. Perhaps President Obama will moot the legal controversy and push through repeal of the policy through Congress. Yet with his dwindling political capital and an expected Republican trouncing in November, his window is closing fast. The courts may not be promising, but they may be the only hope for proponents of gay rights.
Follow Adam Winkler on Twitter: www.twitter.com/@adamwinkler
However, from what I have read the judge found that DADT does not pass the rational basis test since she found DADT to be factually harmful to national defense.
"the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words,
for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest."
"... In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial."
The Obama administration chose not to appeal the Witt decision.
Judge Phillips applied the new level of heightened scrutiny required by the precedent in her circuit.
What is in the statue itself is an absolute requirement that anyone engaging in, attempting to engage in, or soliciting another to engage in a homosexual act, anyone who states they are homosexual or bisexual, or anyone who marries or attempts to marry a person of the same sex MUST be discharged from the military. There is one exception for the first two parts (having gay sex or stating "I'm gay") which includes demonstrating that "the member does not have a propensity or intent to engage in homosexual acts.", in other words is not gay, but has gay sex (or states I'm gay) for some other reason. Repealing the law will do nothing to change the current limited protections that the regulations provide.
As for which side the President is on, he is clearly in favor of repealing the statute but for reasons that I cannot fathom has chosen to move slowly on that repeal. Nonetheless, the number of military personnel discharged under the policy declined from 619 in 2008 to 275 in 2009.
It's not very likely (as in snow ball's chance in Hell) that the Republicans will actually become the leaders on equal right.
I'm convinced that this is really a Republican dirty trick because just putting it out there is generating anger and division among Democrats. Gays make a positive comment about what the Republicans are doing and some Democrats use that as an excuse to once again attack the selfish gays who are expected to wait at the end of the line for everyone else to get what they want before gays get equal rights.
We've already seen plenty of it right here on this board. I look for it to continue because if there's one thing we Democrats are really good at, it's falling into the traps Republicans set for us.
Don't look for much action
Not one.
'Don't Ask, Don't Tell' is now and has always been just another way for heterosexuals to deny dignity to their gay children.
That's all ANYTHING having to do with gay citizens in America is about.
Denying dignity to the gay children you created, and forcing government to participate in the denial of that dignity and humanity as well.
Warms the soul, no?
I DO like your post, faved it already because I so liked the rest of your point . . . now I'm stating I like all of it.
Does anyone see the irony of this. REPUBLICANS brought a suit against the Obama justice department who were defending an anti-gay policy, signed into law by a DEMOCRATIC president, Bill Clinton. Is the most progressive group on this issue, Gay Republicans?
A Democratic majority has done nothing to repeal Don't Ask Don't Tell since wining a majority in '06.
Obama has to choice to comply with this pro-gay ruling and suspend enforcement of DADT or appeal.
If he appeals he will out himself as anti-gay.
Unless you are admitting that shrub was not elected in 2000?
Despite two recent court victories we still can't get married and we can't serve honestly. Meantime Obama doesn't support marriage equality, is only luke warm at best on DADT repeal and fiercy defends DOMA. I also expect the White House will launch a fierce defense of DADT on repeal. Add to the mix the animus of a Supreme Court that is actively opposed to equal rights. That, combined with continued legislative stalling until GOP retakes Congress, will kill the effort.
Imagine what life would be like for gay Americans (and black Americans, poor Americans, the middle class) if Democrats held the White House and both houses of Congrees!
By citing his religion as a justification to deny gays the right to marry, he's weakening separation of church and state. By making the states' rights argument, Obama show's himself to be a hypocrite.