Memo to Senate GOP: Courts will repeal DADT if Congress doesn't
In their testimony before the Senate, Pentagon leaders emphasized that if Congress did not act to repeal don't ask don't tell, the courts were likely to do so on their own, creating chaos for the military, which would then be forced to implement repeal on a precipitous timetable.
Moderate Republicans who say they favor DADT repeal, but have yet to vote for it, have one more chance to prevent this from happening. It's likely that there will be a stand-alone vote on repeal before the end of the lame duck session. Will those moderates do the right thing and vote Yes, or will they ignore the Pentagon's wishes?
Some Republicans, like Sen. Jeff Sessions (R-Ala.), have dismissed the Pentagon's worry about the courts repealing DADT repeal, blaming the Obama administration for putting the law in danger via the courts. They note that the courts have previously held DADT constitutional and charged that the administration has imperiled the law by failing to defend it vigorously. But as Jonathan Capeheart writes in his post explaining the various options for ending DADT, the events of the past few weeks make repeal through the courts far more likely than before:
What the Obama administration does now is unclear. Activists want the president to declare DADT unconstitutional and to no longer defend the law in court. He has explicitly refused to do the former and has been reluctant to break tradition and precedent to do the latter. This much is clear. The Pentagon Working Group's "Review of the issues associated with the repeal of 'Don't Ask Don't Tell'" changes the ball game. While the administration's defense of DADT in court has been less than robust, the conclusions of the Pentagon report -- that allowing gays to serve openly would not harm military effectiveness -- and the testimony of Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, could undermine the government's defense going forward. Not that I would shed one tear if that prediction came true.
When Judge Virginia Phillips overturned DADT months ago, she did so on the already copious volumes of empirical evidence showing that the concerns about gays and lesbians serving openly were overblown. As Phillips wrote, the government had failed to show that "the don't ask, don't tell act was necessary to significantly further the government's important interests in military readiness and unit cohesion."
Previous studies focused on the experiences of foreign militaries, civilian police departments and the like. But now we have a very recent report from the Pentagon itself concluding that the risk of repealing the policy would be minimal and, as Capeheart points out, the testimony of the Pentagon leadership that repeal could occur without harming military readiness. The government was already faltering in its effort to show that there was an evidentiary basis establishing a compelling government interest in infringing on the rights of gays and lesbians; it is almost impossible for them to say so now that their own study shows that there is none.
Phillips's ruling was based in part on the Supreme Court's ruling in Lawrence v. Texas, which, she wrote, recognized a fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." By forcing servicemembers to hide their private lives in order to serve, DADT certainly violates that -- and Anthony Kennedy, the justice who wrote those words, is still on the court.
As I've written before, it may be more politically advantageous for conservatives if DADT is repealed through the courts, or they may simply like their chances better -- after all, Justice Elena Kagan would likely have to recuse herself. But the administration's warning that repeal will come one way or another should be taken seriously, especially by Senate Republicans more concerned about the ability of the military to function than political gamesmanship.
| December 13, 2010; 11:07 AM ET
Categories: Senate Republicans, gay rights
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