Many people have been exasperated by the Obama administration’s appeal of a recent court case that repeals DADT and I understand that frustration. During the 2008 campaign and in his State of the Union earlier this year, Obama promised to repeal the Don’t Ask Don’t Tell policy that has been in effect since the Clinton Administration in the 1990s. Many worthy soldiers have been dismissed from the military because of this unjust policy and many gay rights activists rightly see this military policy as discriminatory practice. Many of my gay friends have been disillusioned at Obama’s slowness on this and other gay rights issues. I share their frustration, but I also like Obama, and wanted to learn more about what Obama’s strategy is on repealing the Don’t Ask Don’t Tell policy. So I did some research on the web and I asked around some knowleadgable people and this is what I found.
From what I understand any court case that repeals DADT would probably be appealed by a conservative group if it is not appealed by the Department of Justice. Eventually it would go to the Supreme Court sometime in 2011, where Scalia, Roberts, Alito and Thomas would probably vote against a repeal and Ginsburg, Kagan, Sotomayor and Stephen Breyer would probably vote for repeal. Then that means the final vote to consider would by Anthony Kennedy’s. Kennedy’s record on gay rights is mixed. According to what I found in a few links, Kennedy supported the 1996 decision, Romer v. Evans, which invalidated a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims and supported the 2003 decision, Lawrence v. Texas, which invalidated Texas sodomy laws. In 2000, though, Kennedy supported Boy Scouts of America v. Dale, which allows the Boy Scouts to ban gays and lesbians from being scoutmasters. The lawyers who are fighting for gay marriage through the courts right now are gearing their arguments with Anthony Kennedy in mind.
Obama has stated that he prefers to repeal DADT through Congress rather than the courts. Both he and Gates are pinning their hopes on a Department of Defense report that is to be published on December 1 that would discuss the ramifications of repealing DADT. Both hope that a Department of Defense report that supports repeal would provide cover for Senators to vote for a repeal in a December session. Many Senators have stated that they would abide by whatever the Defense report recommends.
So Obama’s strategy for repealing DADT hinges on a positive report by the Department of Defense on December 1. I see two possible risks with Obama’s strategy. The first risk is that it is not clear what the Department of Defense report may conclude. Gates and Obama may have some idea as to what the rough outlines of the report will state, but I couldn’t find anything to confirm that. The second risk is that those Senators who promised to abide by the Department of Defense report may still back out if they’re pressured by conservative groups. Last summer, for instance, Republican Charles Grassley backed out of supporting health care reform due to tea party pressure and began making stupid comments about death panels.
If a vote comes in the Senate in December to repeal DADT, I think the best thing would be to flood with emails and phone calls those Senators that promised to abide by their promise to repeal DADT if the Department of Defense report recommends it. Here are some possible Senators to contact between now and Christmas
First contact Senator John McCain. He has said that he would abide by the Department of Defense report that may recommend repeal of Don’t Ask Don’t Tell. Contact him and tell him not to filibuster a debate in December and to keep his word to abide by the Department of Defense report that comes out December 1.
You could also contact Senators Susan Collins, Olympia Snowe, George Voinovich, or Scott Brown. All have expressed an interest in supporting repeal pending the Department of Defense report. Susan Collins voted for a repeal of DADT in a Senate Arms Service Committee.
A last person to possibly contact would be Senator Joe Lieberman Joe Lieberman. Lieberman strongly opposes the Don’t Ask Don’t Tell policy and earlier this year proposed to repeal the policy. Lieberman is a liberal on social issues yet is also a hawk who is respected in the military community. He is also friends of both John McCain and Susan Collins, two Senators who are important in the debate to repeal the law.
Though Obama has been cautious in fighting for gay rights issues, John Schwarz notes in a September 21, 2010 New York Times article that Obama has created an environment to expand gay rights. Schwarz wrote:
The district court judges are reflecting an increasingly obvious shift in public opinion, said Andrew Koppelman, a professor of law at Northwestern University. “The gay rights movement has been a spectacularly successful movement for cultural change,” he said. “A few decades ago these people were cultural pariahs. It was taken for granted that gay people are mentally ill, contaminated and unclean. Now the cultural valence has flipped — it is that view of gay people which is itself stigmatized.”
As life-tenured appointees, judges can look beyond politics to posterity, Professor Koppelman said. “Right now it seems like a good bet that if you are friendly to gay rights claims,” he said, “future generations will honor you for that.”
President Obama has had an effect as well, said Jennifer Pizer, director of the national marriage project of the Western regional office of Lamba Legal, a public interest legal group for gay issues.
Activists have criticized the president for the Justice Department’s defense of the federal laws being challenged, but he has also urged the repeal of laws that discriminate against gay men and lesbians.
“Having the president repeatedly say these rules discriminate and cause harm — so the discussion shifts to choice of processes for removing them rather than justifying them — seems to have changed the discussion,” she said.
On that, Ms. Pizer and Tony Perkins, the head of the Family Research Council, agree, though he deplores the trend. “I think he’s creating an environment in which the courts feel comfortable pushing the envelope with these decisions,” Mr. Perkins said.
Senators Dick Durbin and Joe Lieberman were joined by veterans and equality advocates discuss repealling “Don’t Ask, Don’t Tell” and and passing the “DREAM Act”.
Senator Joe Lieberman talks to gay and lesbian veterans to help them lobby Congress to repeal Don’t Ask Don’t Tell
Senator Susan Collins explaining her vote last week to filibuster a bill that includes repeal of Don’t Ask Don’t Tell, even though she supports a repeal of the policy.
A debate between Senator Carl Levin and Senator John McCain on the Defense Authorization bill that includes a provision that repeals Don’t Ask Don’t Tell. Here is a link to a military survey which shows that most U.S. military personnel said they wouldn’t object to serving beside openly gay troops.