09/10/2010 10:50 am ET | Updated May 25, 2011

Will the 'Don't Ask, Don't Tell' Ruling Stand?

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.