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Posted at 11:07 AM ET, 12/13/2010

Memo to Senate GOP: Courts will repeal DADT if Congress doesn't

By Adam Serwer

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.

Adam Serwer is a staff writer at The American Prospect, where he writes his own blog.

By Adam Serwer  | December 13, 2010; 11:07 AM ET
Categories:  Senate Republicans, gay rights  
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Next: New York Times pronounces Republicans "deficit hawks"


"especially by Senate Republicans more concerned about the ability of the military to function than political gamesmanship. "

LMAO, like that matters.

After the revelation that Mitch McConnell approached the WH prior to the 2006 election for a troop reduction to help them at the polls, does anyone honestly believe the majority of Republican's make their decision based on anything other than pure political posturing?

Posted by: mikefromArlington | December 13, 2010 11:31 AM | Report abuse

So, it's come down to ugly threats from a dictatorial, gay, activist judiciary, eh?

That's really dirty pool!

But, America should not be held hostage to these pinhead judges. I hope there are enough Senators with the backbone to fight them.

If not, we have become Canada.

Or worse, France!

Posted by: battleground51 | December 13, 2010 11:59 AM | Report abuse

I think DADT SHOULD be repealed!

Obama and the Democrats had 2 years with large majorities in Congress, including a time with 60 seats in the Senate.

They failed to act.


Maybe they were just waiting for it to become a political issue that they thought would aid them.

Maybe they just don't care.

Maybe they are just incompetent.

Maybe the Journolist should question their Democratic leaders instead of lecturing the GOP.

Posted by: TECWRITE | December 13, 2010 12:07 PM | Report abuse

How many GOP Senators will vote today (or would have voted 2 years ago) to repeal DADT?

It's all Obama's fault!

And who cares about those FOX memos ensuring strict adherence to GOP talking points, journolist is the scourge of the media.

Posted by: pragmaticagain | December 13, 2010 12:19 PM | Report abuse

All, the New York Times has decided that Republicans are "deficit hawks":

Posted by: Greg Sargent | December 13, 2010 12:22 PM | Report abuse

I doubt if this Right Wing Activist Supreme Court would ever overturn DADT.

Posted by: Liam-still | December 13, 2010 12:34 PM | Report abuse

The Supreme court is not going to over turn dadt. It's an empty threat. DADT should remain in place. Here is why.

The first major problem is the current long standing ban on homosexual men donating blood which was reaffirmed this past June. While the “lifetime ban” was not warmly received, all opposing discussion centered on the allowable time between homosexual sex (men having sex with men – MSM) and the act of blood donation. See

In a 2006 transcript (see of a similar hearing concerning MSM blood donation, it was noted on page 46-47 of the document that the European Blood Exchange also bans donations from MSM, and the ban was upheld in a court challenge. Of note, on page 48 of the report the MSM HIV infection rate in the US was cited as approximately 500,000. This number was essentially validated in the next document as posted on the CDC website: The document states the following four highlights:

- MSM account for nearly half of the more than one million people living with HIV in the U.S. (48%, or an estimated 532,000 total persons).

- MSM account for more than half of all new HIV infections in the U.S. each year (53%, or an estimated 28,700 infections).

- While CDC estimates that MSM account for just 4 percent of the U.S. male population aged 13 and older, the rate of new HIV diagnoses among MSM in the U.S. is more than 44 times that of other men (range: 522–989 per 100,000 MSM vs. 12 per 100,000 other men).

- MSM are the only risk group in the U.S. in which new HIV infections are increasing. While new infections have declined among both heterosexuals and injection drug users, the annual number of new HIV infections among MSM has been steadily increasing since the early 1990s.

The last point is most disconcerting when combined with a recent study (see ). A new study on city teens and sex has identified some risky sexual behaviors - particularly among teens that have partners of both genders. According to the study in the journal Pediatrics released in October, nearly 1 in 10 of the city's sexually-active high school students say they have had at least one partner of the same sex. Those teens reported higher-than-average rates of dating violence, forced sex, and risky sexual behavior. Of the male teens who say they have had both male and female partners, just 44 percent said they used a condom the last time they had sex. That's compared to 79 percent of male teens who have only slept with female partners and 62 percent who'd slept with only same-sex partners. The report is based on more than 17,000 public health surveys administered in New York City high schools in 2005 and 2007.
PartI post

Posted by: tedy2 | December 13, 2010 12:36 PM | Report abuse

Part II

This tells us that MSM sex in high school students is radically increasing. Not included in this study was a demographic of HIV transmission for these teenagers. Regardless, this statistics is important.

If 4% of US Population of males between the ages of 13 and older is MSM inclined, and 532,000 MSM are HIV positive, we can extrapolate the following: Of the US Census demographics of military service the closest US Census ages statistics are 13-44 – approximately 53 million men (see ) This means that of this percentage, approximately 12% - more than 1 in 10 - of all MSM in the USA are HIV Positive. If the 4% statistic is applied only 53 million military aged demographic, we get a 25% infection rate – or 1 in 4 MSM in that age group are HIV positive. This tells us the infection rate for military aged personnel is between 12% to 25% - an neither statistic is acceptable. Add to that approximately half of all new annual HIV infections are MSM and the medical cost and readiness implications are significant. This clearly shows the MSM demographic is the most risky for HIV of any demographic in America. These statistics coupled to the NY City school statistic of 1 in 10 males has had sex with another male creates the potential for spiraling HIV transmission rate in the military service demographic.

These clearly documented facts show that (1) homosexual conduct is the highest risk conduct for HIV transmission; (2) that the MSM population group has the highest per capita infection rates of any demographic; (3) MSM blood donations are banned for life and that status was reaffirmed in June 2010 making battlefield medicine problematic at best.

Without considering any other aspects of the issue of open service of homosexuals such as privacy, religious and moral issues, these HIV infection rate facts should clearly demonstrate that open service of homosexuals is not in the best interest of the Nation’s security posture and will clearly harm the readiness of the armed forces and greatly increase medical bills for serving HIV positive soldiers and veterans (as the requirement to treat them transfers to the Veterans Administration).

Posted by: tedy2 | December 13, 2010 12:40 PM | Report abuse

"Obama and the Democrats had 2 years with large majorities in Congress, including a time with 60 seats in the Senate.

They failed to act.


Maybe they were just waiting for it to become a political issue that they thought would aid them.

Maybe they just don't care.

Maybe they are just incompetent.

Maybe the Journolist should question their Democratic leaders instead of lecturing the GOP."


Maybe they were waiting for the Pentagon study as was requested by the Pentagon and as they agreed upon.

Posted by: mikefromArlington | December 13, 2010 12:41 PM | Report abuse


tedy2 says, "These clearly documented facts show that (1) homosexual conduct is the highest risk conduct for HIV transmission; (2) that the MSM population group has the highest per capita infection rates of any demographic; (3) MSM blood donations are banned for life and that status was reaffirmed in June 2010 making battlefield medicine problematic at best."

That begs the question. How often are people screened for HIV in the U.S. Military today overall? The practice of "battlefield medicine" as you say, that might require immediate transfusions, is not simply an issue for front line troops. When troops are transported to field hospitals what is done to make sure homosexuals are not contributing to that blood supply?

This one issue, the dangerous rate of HIV infection among homosexuals, it seems to me, is a reason to start asking who are the homosexuals in the ranks, and once they are identified, a potent reason to discharge them immediately, as required under Title 10, Section 654 of the U.S. Code.

Talk about the enemy within.

Posted by: GoldenEagles | December 13, 2010 1:57 PM | Report abuse


Title 10, Section 654 of the U.S. Code, expresses the findings of Congress that homosexuality is not compatible with military service, and requires the Defense Department to discharge any homosexual they find in the ranks. In this regard, this issue of HIV infection makes the Congress of 1993, the authors of Title 10, Section 654, appear to be, in no small measure, like unto a conflagration of prophets.

Posted by: GoldenEagles | December 13, 2010 2:04 PM | Report abuse

What is this article based on?

Just one closeted judge in California ???

That just about says it all.

This article is a joke.

Gays are not a "protected class" - the Courts can not create "protected classes" - they have to be enacted into law. The gays have lost every vote on gay marriage. When will they just leave everyone alone? This "in your face" attitude does not help anyone's cause.


Posted by: RainForestRising | December 13, 2010 3:03 PM | Report abuse

There are a few points to be made about the HIV comments.

1) Men and women in the military are tested for HIV no more than one year prior to any transfer and during periodic physical exams.

2) gay men and web are already in our ranks, and are presented with voluntary opportunities to give blood. They are asked a series of questions, one of which is if they are a man who has sex with men. Studies have shown that the number of men who lie on this questionnaire would go down if DADT were repealed.

3) the various branches of the service certified during the investigation initiated during the Clinton administration that they could handle the increased risk of HIV infection of the blood supply with no appreciable risk. They maintain this position today.

Posted by: Neuroadkill | December 13, 2010 3:26 PM | Report abuse

Ok, first off, if your not military than please do some research before posting so that you don't look like a complete idiot on here. Second, if you are HIV+ you cannot enter the service. If you are in the service and then contract HIV, you will be discharged unless you have been in the service for at least (I believe) 2 years. Also, if you test positive, you are barred from donating blood in the service and they will pull all previous donations from you. If you test positive you are profiled as "Non-Deployable" and will never leave stateside, will never see a combat zone. HIV screenings are done at a MINIMUM of every 12 months and some units test every 6 months. When it comes to STDs/STIs, if a soldier becomes infected, that soldier is treated, tested and documented. If that soldier shows a history of STD/STI infections, that soldier is counseled and disciplines up to and including discharge. Measures have been taken to prevent HIV infection in the military and the combat zone. So again, if you are not military and do not know military regulations then do not post as if you are an authority on the subject and while your at it look up the HIV rates in the military. You might be surprised at how low they are.

Posted by: TankerMedic | December 13, 2010 3:51 PM | Report abuse

The votes aren't there.

Repealers need five votes in the Supreme Court. Four won't do it.

For more than 200 years, the Congress has run the military. Which five justices will vote to change that?

Posted by: blasmaic | December 13, 2010 4:06 PM | Report abuse

Greg, you have a point here. Justice Anthony Kennedy often *is* the Swing Vote in the SCOTUS and, yes Virgina Based part of *her* ruling on a general position of his. However, Lawrence v. Texas addresses sodomy versus privacy in a purely civilian environment where the 14th Amendment has Full and Unfettered Bearing. So it has yet too be seen whether Kennedy would take kindly to the stretching that Virginia Gave that SCOTUS ruling.

If you have ever served under UCMJ, you undertand that your rights under the Constitution are Subservient to UCMJ. DADT has in its preamble, the Justification for its existance. Virgina based *her* ruling (incorrectly) that homosexual behavior could *never* be a significant problem. Kennedy might agree. However, I am inclined to think he will be more likely to rule along the lines of U.S. District Judge Ronald Leighton, who ruled that, in the *specific* case of Margaret Witt, the discharge was not only un-needed to maintain morale, it actual was damaging to morale.

I served with the 446th, back in the early eighties, so maybe that is why this case catches my eye. For whatever reason, it has been something I have pondered for quite some time, and I think that Supreme Court Justices would see the wisdom of this ruling. Quite honestly, in all cases (homosexuality or any other reason for discharge) a primary reason MUST be to maintain good order, morale and discipline. Frankly, I see the Courts adding the burden of proving in every case that they wish to discharge someone under DADT that they first PROVE that in the particular case, the argument can be made that retaining them is worse for morale, or that discharging them is better for morale. I can even see them going so far as to say that in such a case, if it is found that someone *else* (a super bigot of some sort) is the real cause of the morale problem, that *they* be removed instead, although that is a long shot in my view.

In short, Greg, my fear of the Courts is Minimal and this alarmist fear mongering to attempt to sway people to your point of view out of abject terror of what the courts *could* do, is quite immature and not likely to work, even for those people who even care at all about this cause, unless they are *already* in your corner and thinking like you do.


Posted by: Clearbrook | December 13, 2010 4:46 PM | Report abuse

My honest opinion is this:

Pelosi holds this in her hands more than Reid does. If the "sweetened" (read more PORK for California) Tax Cut Deal does *not* pass the Senate, DADT and everything else is done. Some people think enough Republicans might break ranks at that point and I think they *may* be right, but with Pelsoi's Previous Venomous Outburst, I think she has effectively poisoned the likelihood of that happening. Few people trust her and for good reason.

If the Tax Cut passes the House, the Log Jam clears. If it does not, expect that it will be the first thing that *will* happen when Congress convenes without Pelosi mattering so much any more.(the Bill will have passed the Senate already, remember?) The Logjam will clear, but quite honestly only *after* this issue passes and maybe even waiting for Obama (who would be on the spot for sponsoring this now as the first bipartisan effort of his presidency) to sign it into Law. They might not wait for that, giving him a bone, and fostering *continued* bipartisanship.

But this is it: Tax Cut or NOTHING!!! (and Pelosi will not matter in a few weeks anyways, so what does it matter if SHE stonewalls like the Republicans?)

Your issue is important to you, and I appreciate that. To Americans, the Tax Cut, even in a flawed form, is PARAMOUNT to anything else! And *that* is the big issue overall! Start Screaming for Pelsoi to pass the flawed tax cut and you might get some traction, dude!


Posted by: Clearbrook | December 13, 2010 5:01 PM | Report abuse

So, to counter your fear mongering, I give you this:

If Pelosi does *not* pass the Tax Cut, everything else stalls in the Senate for now. Most people observe the likelihood of the Repeal of DADT (or of the DREAM Act or any other less known issues) passing the Senate *or* the House becomes very small. I think there are *some* things that passed the House already and may even pass the *new* Senate without ammendments needed to send it back to the House again, but I would not want to bet on any of them.

So do Tax Cuts NOW, or put any or all of the other issues at risk -- Permanently!


Posted by: Clearbrook | December 13, 2010 5:14 PM | Report abuse


African Americans represent the largest percentage of HIV positive people in this country:
"By race/ethnicity, African Americans face the most severe burden of HIV in the United States (US). At the end of 2007, blacks accounted for almost half (46%) of people living with a diagnosis of HIV infection in the 37 states and 5 US dependent areas with long-term, confidential, name-based HIV reporting. In 2006, blacks accounted for nearly half (45%) of new infections in the 50 states and the District of Columbia."

So you must also be calling for a banning of all African Americans from the military, correct?

Or better yet, realize that not all African Americans are HIV positive and not all Gay Americans are HIV positive and so banning either is uncalled for and discriminatory.

We're all Americans, so stop singling us out because we're gay, straight, black, white using meaningless statistics. If HIV is a problem, then pass policies that deal with HIV positive people. If you have a Gay American in a monogamous relationship with an HIV negative partner, they have LESS RISK than a Straight American who is single and engages in unprotected sex frequently. Your "ban the gays" solution would be useless in the latter case and would in fact be discriminatory, dangerous (false sense of security) and horribly un-American.

Posted by: paulflorez | December 13, 2010 10:17 PM | Report abuse

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