October 18, 2010

Slow to Repeal

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“I will end Don’t Ask, Don’t Tell.”  — Barack Obama

If ushering in the end of “Don’t Ask, Don’t Tell” is a campaign promise President Obama intends to keep, he certainly has a rather peculiar way of going about it.

After 17 years of codified discrimination — of having on the books that gays serving openly in the military would severely threaten “morale, good order and discipline, and unit cohesion … ” — the law was finally deemed unconstitutional, inconsistent with the very values these gay soldiers intended to risk their lives to protect. On Sept. 9, the case of Log Cabin Republicans v. United States of America came to a conclusion when Judge Virginia Phillips ruled that DADT was unconstitutional on two grounds: first, because it violated Fifth Amendment due process rights, and second, because it violated First Amendment free speech rights. A month and three days later, Judge Phillips issued an injunction requiring all branches of the military to stop enforcing the policy.

To detractors of DADT, presumably including the President, this was excellent news. Not only had the policy been overturned, but it had also been done with full recognition of the legal and moral wrongs incurred by having it in the first place. So you would think, then, that in light of the recent court ruling, the administration would be celebrating, no longer charged with the arduous task of reversing DADT through the legislature.

Not so.

The Obama administration’s reaction to the policy made for a surprising about-face from their previous position. After Judge Phillips issued her injunction, the Obama administration asked for a stay on the ruling, which would postpone the implementation of Phillips’ decision until they could prepare a formal appeal against it. And yes, you read that correctly: the Obama administration will be arguing in favor of a policy the President explicitly vowed to repeal.

The salient question then becomes: Why? What could possibly compel the President to fight the repeal of DADT through the courts, which have effectively fulfilled one of his key campaign promises for him? Obama states that the appeal stems from his preference to remove DADT through the legislature “in a way that is orderly, because we are involved in a war right now.” Bear in mind that Obama had already pressured Congress to remove DADT in the Fiscal Year 2011 Defense Appropriations Bill; this effort failed when Republicans opted to filibuster the debate. No surprises there.

The Obama administration contends that a legislative repeal would allow for a study to be conducted on the possible effects of overturning the policy, and would give time for the administration to phase out DADT in a more measured fashion. But let’s forget the fact that the difficultly of overturning DADT in the legislature was made evident when the Democrats failed to do so with a 59-seat majority — or even that this difficulty will be massively compounded when the Democrats surely lose seats in both houses in the coming election: I don’t see at all why it’s necessary to phase out DADT.

Consider this: Nearly every industrialized country with the exception of China allows gays to serve openly in their militaries, including coalition countries whose soldiers have been fighting side by side with American troops for over eight years. For a country that prides itself on having the most elite military in the world, we certainly don’t seem to think too highly of our soldiers in this context. Let me put it this way: We trust them to wear 35-plus pounds of gear in the scorching desert heat, to fight an enemy that has hidden itself amongst the masses, to not only dodge bullets and bombs, but to fight back, and yet we don’t believe they can handle the stress of knowing a few of their fellow soldiers would rather go home to Jeff than Jen? I’ll put this politely: That’s bullshit.

The repeal of DADT has been endorsed by Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Michael Mullen. The experiences of other countries corroborate the claims that repealing DADT would do little, if anything, to harm unit cohesion. And where the legislature utterly failed to repeal a policy that is nothing short of biased, discriminatory and unconstitutional, the courts finally stepped up and called it for what it is. That the administration seems wedded to the idea of a legislative repeal — despite the futility of past efforts and the increased difficulty of future ones — is, to put it mildly, frustrating. Especially in light of the highly publicized string of suicides among gay youth, I would have hoped that the Obama administration would show more initiative in striking laws that posit gays as somehow less valuable to society — as deviant or abnormal. Now, any progress towards that end in the near future is likely in the hands of the judicial system; one only hopes that the courts continue this trend of being on the right side of justice.

David Murdter is a junior in the College of Arts and Sciences. He may be reached at dmurdter@cornellsun.com. Murphy’s Lawyer appears alternate Tuesdays this semester.

Original Author: David Murdter