Friday, October 15, 2010

Legal Commentary: Gay Rights III

So, bad news and good news.

The bad news is that the Obama Administration will appeal Don't Ask Don't Tell in the face of it being struck down. Although the Obama Administration's official statement acknowledges that the Administration wants to end Don't Ask Don't Tell, they stand behind their position that the Obama Administration is beholden to legally back laws passed by Congress.

I don't know where the legal basis of that idea is; clearly they don't have to, as Andrew Jackson's "John Marshall has made his decision, now let him enforce it!" proved. On the other hand, as an Administration who considers returning to a position of respect for Congress a major policy goal, perhaps it is necessary from one perspective.

But the good news is that the Pentagon will cease enforcement of Don't Ask Don't Tell until the end of the appeal (and, one presumes, the result of the expected vote after the policy review is completed)

This, I think, strengthens what I said last time, which is that gay and lesbian servicemen should use this to have a mass coming out moment. In a way, they'd be in a similar position as the gays and lesbians who married in the window between the legalization of gay marriage and the passage of Proposition 8 -- 18,000 legal marriages that could not be banned.

The major problem right now with Don't Ask Don't Tell is that the anti-gay pro-military crowd can basically huff and say "Well now is not the time for major changes," because the status quo appears to work for a lot of people. Now imagine that several thousand servicemen came out simultaneously, during this window that the Pentagon avowedly is not enforcing Don't Ask Don't Tell.

Suddenly, the status quo is to let these people serve. To discharge one or two activists like Dan Choi, or to quietly fire tens of Arabic translators doesn't disrupt the whole. But if a whole tide of servicemen came out, and couldn't be fired immediately... any attempt to re-implement Don't Ask Don't Tell would suddenly be seen as a major disruption to the status quo of the working military. I'd like to see John McCain argue that position.