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Cloture Vote Fails, What Now for DADT?

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(image jeff sheng from a new exhibit at the kaycee olsen gallery)

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues.

"I'm disappointed this happened." Agreed.

"I think [Senator] Harry Reid played politics with my rights." Yes and No.

"[President] Obama's a dick." Disagree.

"I'm voting with my feet and moving to Toronto." Excellent! So you can serve in the military and marry that lieutenant in B Company.

Rollcall These are just a few of the comments (and my responses) from those around me today in the aftermath of the Senate's failure to muster sixty votes to invoke cloture on the Defense Authorization Bill.

Those of us who served, those of us who currently serve and those of us who would serve if we were allowed to do so openly were dealt a blow today. And, we are fishing about for someone to blame. Some ardent opponents of DADT find it unreasonable to attach it to an omnibus bill that must pass; others say it will only pass that way. Some gay rights leaders deny that the issue of open service should be left in the legislative realm; they believe that reasoning about our rights is the purview of the judiciary. Many liberals are lashing out at Senator Reid for supposedly not allowing amendments and unfairly putting his own re-election prospects ahead of gay rights. And there are those who realize that Mr. Reid ran the vote like every majority leader before him and that Republicans were playing fast and loose with the truth when they justified their vote on the attachment of non-defense-related amendments to the bill. And then there's the vitriol directed against President Obama, arguing that he could have done more, that Hillary Clinton would have done better or that the president is a secret homophobe.

Blame is for children. Adults look ahead. The gay rights movement has been extraordinarily successful in changing the debate in our favor. Not thirty years ago, homosexuality was a disease, something to be cured, a dirty mental illness. Professor Andrew Koppelman of Northwestern University notes that today, it is that antiquated view of gay people that has become stigmatized. And President Obama has done his part. Jennifer Pizer of Lambda Legal notes that having the president speak so forcefully on behalf of gay rights -- stating his opposition to DADT and DOMA, noting how much harm they cause -- has helped shift the discussion from justifying discrimination to how to end it. We might have wanted the "how" to be a bit easier, but to ignore the dynamic shift in dialogue since Stonewall is to let one's current disappointment cloud all rationality. And we cannot forget our great successes in the courts, from Lawrence v. Texas to Perry v. Schwarzenegger to Log Cabin Republicans v. United States to today's ruling out of Florida declaring that state's gay adoption ban unconstitutional.

Still, we wonder where we go from here. Options and analysis (and a chance for you to discuss these issues) AFTER THE JUMP...

1. The Senate can take up a "clean" repeal of DADT in a lame duck session of Congress after the midterm elections. Senator Reid has indicated that he may pursue this option. The political viability of this option, given the impending electoral apocalypse everyone seems to think will pan out, is up in the air.

2. President Obama can issue an executive order halting implementation of the policy until the Defense Department has completed its analysis. This is what the gay left and the folks over at GetEqual want. The activists among us hunger for swift and decisive action and immediate changes to unjust laws. While I see some beauty in that black-and-white worldview, I cannot share it. My heart would welcome an executive order halting discharges under DADT, but my head would cringe just a little bit.

I am troubled by executive efforts to expand its authority. Liberals criticized the administration of President George W. Bush for its advocacy and implementation of the so-called "strong unitary executive", which essentially takes Article II of the Constitution to the extreme. A strong executive would let the president control every inch of the executive branch, minimize the role of Congress in the appointment of executive branch officials and even outlaw independent prosecutors (like during Watergate) and independent agencies (like the FDA) because they are outside the control of the presidency. Progressives and their allies in Congress also criticized then-Judge Alito for his appellate court decisions that seemed to advance a super strong theory of the executive branch. 

As Dawn Johnsen has noted, President Bush put the unitary executive theory into his signing statements 363 times when he felt that legislation interfered with his power. Often, President Bush justified his robust conception of the executive on the Commander in Chief Clause (U.S Const., Art II, Sec. 2, clause 1), which states as follows:

  • The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

This clause bestows pretty broad powers on the president. It makes sense that it does because of the nature of military order, discipline and chain of command.

But I find the justification lacking. As Professor Cass Sunstein has noted, no one doubts that the Framers created a unitary executive to some extent. The question is to what extent, or how strong or how weak. The president's powers seem their strongest when he wears his Commander in Chief hat, as that clause is clear, broad and understandable given the nature of military power.

In other areas, the president's power is justified by the Vesting Clause -- "The executive Power [of the United States] shall be vested in a President of the United States of America" -- and the Take Care Clause -- "The President shall take care that the laws be faithfully executed..." These clauses, separate and apart from the Commander in Chief Clause arguably create a distinct source and a distinct sphere of authority for the president.

The very fact that the Commander in Chief Clause creates presidential power separate and apart from the Vesting/Take Care Clauses suggests that the extent of the president's power under one clause is not comparable to the power under the other. Nor is the language. The Commander in Chief Clause is clear -- the president "shall" have power as a military "commander", he can give direct orders to his department heads and issue pardons. Those are specific and broad powers.

The Vesting and Take Care Clauses simply -- and vaguely -- assigns to the president the power to execute the laws. What that actually means is up for debate. The very vagueness of this source of presidential power lends itself to competing broad and narrow interpretations. But when seen in context -- as a separate executive power source next to a supremely broad one -- the strong unitary executive theory makes little sense to me. Why would there need to be two separate sources of presidential power if not to distinguish the type of power the president can wield in the two different areas? If we admit that a president's authority is always greatest when he's prosecuting a war, a president's other source of power, by virtue of its vagueness, its threat to checks and balances and the common understanding that the president is not a military-style commander in the civilian world, should necessarily vest him with fewer powers.

Therefore, the Bush Administration's liberal critics acknowledged that part of the President's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies," but they rightly accused Bush of overstepping that duty. Those same progressives are now itching for a progressive president who came up in legislative branches of government to use that unitary executive power to intrude in an area of law where Congress has spoken. It is clear that President Obama has the power to issue an executive order halting discharges, and it is also clear that he could base any such executive order on the great power given to him under the Commander in Chief Clause because DADT involves the military, but the use of executive power in this way should be troubling to those who criticized President Bush's overreaching. I am struck by the left's short memories, at best, or outright hypocrisy, at worst, in this area.

2. The Justice Department could decline to appeal Judge Phillips ruling in Log Cabin Republicans v. United States, which declared DADT unconstitutional. Courage Campaign Chairman Rick Jacobs prefers this response. The Obama Administration need not appeal; there is no law, no executive order, no custom that requires the DOJ to appeal all rulings adverse to current law. But, gay rights advocates run into strategic and legal problems even if the Administration declines to appeal.

The federal government has always taken the position that precedent against it in a circuit only applies in the territorial jurisdiction of that circuit. After doing a little research and speaking with Jon Davidson of Lambda Legal, I have found cases where federal district courts have issued nationwide injunctions against the federal government's enforcement of statutes held to be unconstitutional. That is what the Log Cabin Republicans asked for in their successful DADT case before Judge Phillips in Riverside, CA. However, the federal government has also often taken the position that federal district court judges do not have that authority. The DOJ has argued that district judges can only bind those within the territorial jurisdiction of their districts and that appellate courts can only bind those states within their territorial jurisdiction. In fact, that is exactly what has happened in the case of the many challenges to DADT. Witt v. Department of the Air Force came out of the Ninth Circuit, which means that in the Ninth Circuit, any defense of DADT must meet strict scrutiny (a really high standard). But, Cook v. Gates, out of the First Circuit, found that DADT merits only intermediate scrutiny and found that DADT met that standard. Those decisions apply only within the respective territorial jurisdictions of the Ninth and First Circuits.

So, if the Obama Administration declines to appeal, a single district court injunction that has arguable precedential weight across the country may be a half-hearted victory for open service.

An executive order or a DOJ refusal to appeal Judge Phillips ruling would be pro-gay steps, but of varying legal and strategic benefit.

Having played devil's advocate here, I'd like to hear what you think. Do you agree? Do you feel that I am needlessly concerned with executive power and should welcome an executive order without hesitation? Or is it a legitimate concern given, for example, that a supreme executive can use its Commander in Chief powers to violate our Fourth Amendment rights in the name of the war on terror, or restrict what I can say or do under the guise of aiding terrorism? And, what of the appeal? Do you feel it is the best interests of repealing DADT to pursue appeal up the ladder? Or should the Obama Administration decline to appeal, leaving only a district court decision as our voice?

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Comments

  1. Ari, I am not currently seving, I have not served in the past, and I am now too old to serve, but I also feel the blow of defeat regarding this loss. You see, I love freedom, and anytime freedom is passed over in the name of hate, I feel it like a blow to the gut.

    Posted by: Mikey | Sep 22, 2010 2:27:40 PM


  2. Yes, Ari, I feel your objection to the executive power in this area is misplaced. I do not have a short memory, and there are indeed many dangers in a president assuming Commander in Chief powers in a war on terror, a war on drugs or a war on shoelaces.

    But we are involved in actual military wars in various theaters (nominal "end of combat" declarations notwithstanding) and the powers of the Commander in Chief to issue stop-loss orders should not be feared as a slippery slope to usurping other areas of civil liberties.

    Further, to the extent the White House relied on forbearance from halting the discharges in exchange for a legislative victory on this issue (as alluded to yesterday by V.P. Biden), the stop-loss orders should be issued by close of business today - by any president with half a spine.

    I don't want Obama to become a quasi-dictator like Bush did, but I'm beyond done with his constant milquetoast, measured political response to an opposition hell-bent on slash and burn, all-out, damn-the-consequences war. Enough!

    Posted by: Zlick | Sep 22, 2010 2:29:09 PM


  3. i was never convinced that DADT should have been the issue put in the #1 spot of our political agenda. entering the military is a voluntary action and one knows the rules when one joins. if DADT was a problem for you then you shouldn't have joined. DADT affects a very small percentage of LGBT people. i would have much preferred us to spend all this time, money and energy on DOMA or ENDA since these inequalities affect ALL of us and not just a disproportionate few in the military. so we've spent all the political capital and have nothing to show for it. it is time for all LGBT soldiers to come out. now.

    Posted by: psgoodguy | Sep 22, 2010 2:32:45 PM


  4. Obama did his part? What exactly did he do? Otherthan not vetting the proposed new head of the Marine Corps on the policy (or thinking his view was unimportant). If the White House showed 1/10000th the sense of urgency on this as on "financial reform" and been willing to give the GOP a little something to get out of the way, there would have been a different result.

    I agree with you completely on executive power, but not on your apologizing for this chief executive.

    Posted by: justiceontherocks | Sep 22, 2010 2:34:47 PM


  5. This is a lot of proceduralim, but society advances by substantive results. Many hands were wrung over Brown v. Board, but now it is a celebrated piece of the civil rights canon. The racial integration of the military was accomplished by an executive order, and fears about its legitimacy or permanence proved ill-placed. Gay supporters froze in terror when Massachusetts instituted marriage equality by judicial fiat and foretold doom from a backlash, but it is unquestionable at this point that that was a watershed event for equality.

    So: Results matter, not means. This President refusing to sign an executive order over gays in the military will not influence the next President's willingness to do so, and while we wait for yet another abortive attempt at legislative repeal, the human costs continue to rise.

    Abandon proceduralism in politics. Seize progress wherever it can be found, and then look for more. It goes against our nature as lawyers, because when our professional toolkit is all procedure, procedure starts to leak into our beliefs as well -- but the history is clear that with regard to civil rights, RESULTS are what matter, not the path to those results.

    Posted by: Pender | Sep 22, 2010 2:40:54 PM


  6. You have two #2's in this post.

    "The gay rights movement has been extraordinarily successful in changing the debate in our favor. Not thirty years ago, homosexuality was a disease, something to be cured, a dirty mental illness. Professor Andrew Koppelman of Northwestern University notes that today, it is that antiquated view of gay people that has become stigmatized."

    Is this true in all segments of our society? It's clearly not true in, for instance, the Marines. You are, as your bio notes, a Harvard alum twice over. Maybe your conception of where we find ourselves in society today is more reflective of the environment in Cambridge than in a great deal of the rest of the country. DADT is still a reality for vast numbers of people either serving or who would like to serve, even if in the rarefied circles that you move in, being gay is no longer an issue.

    Posted by: Matt | Sep 22, 2010 2:53:21 PM


  7. I read your thoughtful comments. I think you provide an excellent legal analysis of the various steps to take from here. But they are only that--legal advice. There is little political analysis. My comments can be summarized in the following way:

    1. "Let's look forward and not spread blame."--to paraphrase. Well, this is fine, but we must understand why failure occurred in order to prevent it from happening again. Whether the war in Iraq or the attempted repeal of DADT.

    2. I'm with most critics who think that the added bells and whistles that Reid attached to the bill was a losing strategy, with the repeal of DADT sacrificed needlessly along the way. Reid and Dems want to mobilize elements of their base with this tactic? One possible outcome was that they would have gotten everything they wanted, which was a very low possibility. If that failed, what would be the payoff? A rather pathetic message of "We care about you." Most elements of the base want demonstrable success, especially given the current tensions between the "Left" and the Obama administration and the rest of the Democratic Party. Why not pursue a different strategy that had a greater chance of success?

    3. Once again Dems underestimate Republican opposition and unity. Why didn't they see this coming? If they had, they would have forced a single vote on DADT, and start to make the midterms partially about social issues, one area they can win.

    4. Finally, I'm one of those people whose suspicion of Obama's commitment to gay rights is only growing. He appears at our little gatherings and says the right things. But does not stand up for us when it counts. Why did it take Lady GaGa to pressure the Maine REPs? Where was Obama and pressure from the White House? And he still holds the view that "marriage is between a man and a woman"? Well, that is clearly discriminatory, as evidenced by Judge Walker's decision.

    In sum, I'm beginning to not just question whether Obama is fierce in his advocacy for gay rights, but whether he's an advocate at all.

    Posted by: Scott Siegel | Sep 22, 2010 2:55:08 PM


  8. Bravo, Ari, bravo. This is exactly the reasoning behind why I always believed executive order was not the way to go with anything related to DADT.

    Yes, the right has slash and burn politics, but you see exactly where it is getting them. They are marginalizing themselves into irrelevance, and doing the opposite is exactly what will keep us from avoiding the same fate. The POTUS is president of all of America, and providing a clear alternative is what the majority of Americans want: something measured, thought out, rational....a complete turnaround from the Bush years.

    Posted by: jjasonham | Sep 22, 2010 3:04:16 PM


  9. @ ARI: In a world, and particularly the "news" media, of instant punditry I find your in-depth analyses of thee issues consistently refreshing and welcome.

    I do however disagree with you. Issuing an executive order, staying DADT discharges, is a far cry from Bush's activism. In fact, it is a minimal step that is easily justifiable as the military continues to oust much-needed personnel in real wars for no reason. An order to ignore DADT would be overstepping, a stop-loss seems balanced to me.

    I also disagree that President Obama has done his part. he has not, and in a completely extralegal area: his voice.

    Obama is famously the most eloquent politician in the world at this point. His words CAN change hearts and minds. Where is an actual impassioned speech on the issue? It's like PROP 8, he not only did not eloquently come to the defense of the right side, he actually gave such terse and damaging statements his quotes were used by the wrong side!

    It's my belief he tempers himself because he is still trying to be "Bipartisan", against a rabidly partisan GOP who obstruct him on any and all fronts. It's like with Clinton, they will damage him as much and as often as they can, and they will. not. stop. He neeeds to stop that "reaching out" to the GOP, and speak to the public again.

    Posted by: Strepsi | Sep 22, 2010 3:04:49 PM


  10. Obama did NOT do his part. He did absolutely nothing. And he IS a dick. He's a homophobe gay-segregationist. And he's ruining the Democratic brand for a generation or more.

    And Ari, your declaring everyone upset about this who wants to assign blame as "childish" is just offensive. You're being a dick too.

    Posted by: Dagoril | Sep 22, 2010 3:07:39 PM


  11. "Not thirty years ago" is incorrect. The APA removed homosexuality as a disease in 1973, so it was nearly 40 years ago.

    I have to agree with PSGoodGuy. DADT is a horrible thing, but it's also extremely touchy to military people (many of whom are now in Congress). ENDA would have been more likely to succeed because it's pure discrimination in the civilian workplace, not the "special conditions" of war that we non-military people simply can't understand (and yes, that's sarcasm).

    DOMA is going to be the toughest until more states pass marriage equality. I don't see any point in spending political capital on it until the CA case advances. Otherwise we'll just hear opponents bitch and moan about states' rights. Moreover, unless I'm completely wrong, lifting a federal order isn't going to change all the state prohibitions on marriage equality. After all, DOMA was passed in 1996 and the bulk of the state prohibitions came in 2004 out of paranoia that Kerry would win and approve marriage equality.

    Posted by: Paul R | Sep 22, 2010 3:14:49 PM


  12. I agree that the Bush executive power grab set a horrible precedent for the role of executive power. Obama's stated objection to the Bush power grab was the central reason I voted for him in the primary and general elections.

    Since taking office, however, he has embraced Bush-era powers, including warrantless wiretapping, targetted assassinations, paranoid secrecy, etc. Furthermore, he has decided not to enforce laws he finds unjust (e.g. the 'widow's penalty' that denies permanent residency to foreigners married to a US citizen for less than 2 years at the time of the citizen's death).

    It is only when it comes to gay rights, our rights, that the president insists he is powerless. It is not hypocrisy to demand the president act consistently, especially with respect to DADT and the military where there is a 1948 precedent for integration through executive order.

    Posted by: Dan R | Sep 22, 2010 3:21:35 PM


  13. I _absolutely_ agree with dagoril's assessment of this piece.

    I also agree with some of Ari's other points, but they were lost after he called me childish. Fuck you too, Ari. Disagreement is fine, but you're blaming _me_ for feeling this way? You've lost my respect.

    And it's also because I think you're wrong about your interpretation / assessment of the idea of the President issuing a stop loss order. It's authorized in the damn DADT law, and Ari, you know that.

    10 USC § 654 (e), which states:
    from http://www.law.cornell.edu/uscode/10/654.html
    (e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that—
    (1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
    (2) separation of the member would not be in the best interest of the armed forces.

    Posted by: tjc | Sep 22, 2010 3:31:46 PM


  14. There is such a thing as "thinking too much about it"; the outcome is that one becomes paralyzed by inaction. RESULTS ARE THE ONLY THING THAT MATTER. Wishy-washy leadership is an anchor that drags us down, divides us, and makes us weaker.

    Obama's support of repeal of DADT- at arm's length- has no endgame in sight. Had the Defense Authorization Bill passed, DADT would still not have ended. It merely gave Congress' permission to Obama and the military hierarchy to end the policy sometime in the future, when (and if) they deemed it feasible. His choice of Gen. James Amos to head the Marine Corps, a strong supporter of keeping DADT, is a not-too-subtle signal of where Obama's real feelings may actually lie. Certainly he has done nothing to halt dismissals-and he should. I no longer believe that Pres. Obama can be counted on to strongly support the LGBT community in ending this disgraceful law. He seems to have retired on the job, on most of our issues.

    Posted by: Jerry | Sep 22, 2010 3:43:26 PM


  15. Oh how I yearn for the days when slippery slope arguments were rightfully treated as invalid, because they are.

    What distinguishes a rule from a "law" is that it has exceptions, and can be violated. A law, rightfully understood, has no exceptions and cannot be violated. This distinction is the basis of should (what you are obligated to do) implying can (what you are capable of doing). All social laws are therefore rules.

    How does one assess the effectiveness of a social rule? Many ways, but the most conservative way is in its consequences. When a social rule no longer serves an objectively measurable function of regulating behavior that produces the best outcomes for a society overall, it is no longer effective. People who support a rule that no longer produces the effect of coordinating behavior that benefits the group in which it is operative are called rule worshippers. Short of any measurable outcome that would indicate its usefulness, they believe that the rule is justified purely for its own sake--that is, they believe it's infallible (and no social rule is). This clearly applies to DADT, but it also applies to Obama's option of issuing the executive order to halt discharges under that law.

    Consistency for consistency's sake cannot be justified in the context of social rules (and no functioning society has ever been "consistent" in its rules), so the argument that exposes liberal critiques of Bush's expansion and abuse of executive power to the potential for Obama to, essentially, rely on those rules to produce the best outcome holds no water. The precedent for future use of that executive power to infringe on civil liberties trades on a slippery slope, and such uses of it are, of course, to be measured by their specific consequences.

    So the question that you're asking is whether or not you believe that the executive should use this power to produce a justifiable outcome in light of the potential for abuses of it. Given that the executive does have this power, and it can be used to accomplish something that is justifiable, I fail to see the dilemma. Precedent of its abuse has already been established. So it would be the degree to which precedents are established, which contributes to the ease of potential abuse of executive authority? Well, that's pretty vague, and the potential would exist whether or not Obama issued the executive order.

    I think that the DOJ should appeal the ruling so it can be heard by the sc, and, if what you say is correct, actually be struck down. The confusion of appealing the ruling while issuing the stop loss could be very useful.

    Posted by: TANK | Sep 22, 2010 3:58:16 PM


  16. "Do you feel that I am needlessly concerned with executive power and should welcome an executive order without hesitation?"

    Yes, Ari, you are. How do you think blacks were integrated into the military? Certainly NOT by congressional action. It was deeply unpopular at the time. It was done by executive order.

    DADT repeal IS actually popular, is not polarizing in the public mindset (expanding wars and Presidential powers, like Bush did, both was and still is).

    Everyone is acting like "no worries, we couldn't get DADT passed this time in the Senate, there's got to be another way". There isn't, and this was intentional all along (from both the White House's perspective and Republican leadership's). The study was pushed to after the midterms (how come the study wasn't started right after Obama was elected, if that's the course they wanted to follow?). The concept of the study period was to give enough room to both Democrats and Republicans to not do their due duty. Plus, it's painfully obvious that once the DREAM Act and the ban on holding Democratic nominations up was put into the bill, the bill was crafted to go down in defeat. It was like "oh, the midterms are coming and we haven't done shit for either gays or the Latinos . . . how about we placate both by bringing up a vote we know won't pass, then blame the Republicans??"

    The White House KNEW it wouldn't pass, didn't try to get it passed, and even if it had passed, Obama would have vetoed it because of those dreaded military jets that no one wants to pay for.

    There's nothing "childish" about being pissed off about this. It's not "unrealistic." What's childish and unrealistic is saying that 70% of Americans are wrong on this issue just because Susan Collins and Barack Obama are too chickenshit to stand up for what they believe in.

    By the way, I couldn't believe how Susan Collins and Scott Brown were strong armed into voting against their heads. I saw it on the Senate floor myself. This never happens on the Democratic side, EVER, unless it involves some bullshit thing in return (Cornhusker Kickback, anyone?)

    Now DADT repeal is dead. Obama will appeal the Judge's ruling, and he won't issue an executive order. The conditions were ripe for this last year, now it's gone. We won't have the votes after November, and won't have the votes for a long time now. This is not only horrific and sad for the gays in the military who will continue to be witch-hunted, it speaks volumes about the inability for Congress to respect our basic human rights.

    Posted by: Jollysocks | Sep 22, 2010 4:06:37 PM


  17. What a load. Who is this tool, and did he really go to law school? He couldn't argue his way out of a paper bag.

    Posted by: gaylib | Sep 22, 2010 4:11:29 PM


  18. And just like that, once again, advocates demonize a fellow advocate and voice of reason (Ari), simply because they don't like the logic behind what was said. Sound familiar? "Blame is for children" and now all of a sudden Ari called you "childish"? Did he say your feelings weren't valid? Did he accuse you of blaming? NO. Get the fuck over it. Gay educated males have a reputation of being the biggest bunch of petulant, self important, people I've ever met. There was an article posted somewhere online about the disconnect between young gay males and older gay males. This, my friends, is a perfect example. I understand many have been fighting for a very, very long time. Being continuously worn down with disappointment and frustration is a reality, but this MY WAY or the highway mentality gets no one ANYWHERE. That's what the GOP has done, and many see that they got the results they wanted, but at what cost? They have lost a generation from their base. Period. Do we really want to take advocacy tips from those extremists?

    Posted by: jjasonham | Sep 22, 2010 4:28:06 PM


  19. Hi Ari. While I appreciate the legal arguments and procedural relevencies you bring forth in your comments, the reality of the political results is that DADT was not overturned, and the likelihood of it being overturned under this administration continue to diminish with every passing day. While I respect your opinions and legal knowledge for they are superior to mine, I respectfully disagree with your placations that relieves the Obama White House derelict of its promises not just during the campaign, but at the White House dinners it gleefully entertained in its first year. The question is simple, "What has Obama and his administration (and that includes the legislative branch) actually achieved for LGBT equality?" We have a few rule changes that only apply to Federal Employees, and a Hate Crimes Law that to my knowledge has yet to be invoked or used despite continued violence and hate towards the LGBT community. Name anything else meaningful that is actual law, not just words or dialogue, and perhaps I'll reevaluate my opinion. For me, actions speak louder than words.

    Posted by: Keith | Sep 22, 2010 4:55:19 PM


  20. Obama entered office with a plan he openly shared with everyone. He said he would work with Congress to repeal the law. He did not want to continue Dubya's practice of unilateral -- sometimes illegal -- exercise of executive power, so he chose not to go the Executive Order route.

    One of his primary, openly stated goals is to reduce the political partisanship in this country. He does not want any issue of national importance to be a political football. Partisanly obtained civil rights can be more easily taken away than ones achieved through consensus.

    So, he laid out a plan that allowed for sensible consideration AFTER the elections when the Pentagon's report is due. Did that involve a delay? Of course it did. But it also allowed for discussion, bartering, education, and a public process of review. In many cases, it also allowed COVER for politicians to change their positions.

    Instead, what we got, thanks in large part to the very same people who are now squealing at the president, is a rushed process of a somewhat meaningless "repeal" bill concocted on the fly to respond to cries for ACTION!!!!

    Obama didn't make this mess. "We" did.

    Posted by: BobN | Sep 22, 2010 5:04:52 PM


  21. I should ad that I think Obama's goal of uniting the country and dispersing the bitter partisanship was laudable but never a realistic goal. But it's his presidency and his right to give it a try.

    Posted by: BobN | Sep 22, 2010 5:06:48 PM


  22. Ari, I'm not sure if you titled this essay, but you're title says: What now for DADT? The answer you give, boiled down to its core essence, is: Nothing. Or, at best: Let's just hope that one day politicians stop playing bait and switch with our lives, our rights, our hopes and dreams, and do the right thing.

    After November 2nd, that "electoral apocalypse" you allude to in option 1 will change everything. The game will essentially be over. For a long time. And for all those who continuously accuse me, and others like me, of being negative doomsayers, take a look back to the spring when this compromise first happened. We "doomsayers" predicted that exactly what happened yesterday would come to pass. And we were 100% correct. I understand the urge to not feel defeated and try, try again to find hope. But my hope is all gone. Barack Obama and this Democratic Congress took that from me. Not the obstructionist Republicans. Obama and Democrats, for continuously rolling over and dying every time the Republicans dug in their heels and carried out their promise of forcing failure on this Administration. And they did it with commanding 59 and 60 vote majorities. We've gone to war on smaller majorities than that. The Democrats achieved virtually nothing with considerably more. I don't have it in me to keep on waiting and hoping for them to do better. They've demonstrated very clearly to me that they won't, and don't really care much to even try.

    Posted by: MrRoboto | Sep 22, 2010 5:38:07 PM


  23. While I am perhaps more wary of Executive power than most, I can see Mr. Obama looking at Judge Phillips' ruling and in conference with the Attorney General deciding that there is sufficient basis for acting as if DADT is unconstitutional and leaving it up to Congress to petition the courts to appeal the decision (I don't think anyone but Congress would have standing to appeal).

    As to halting discharges, the same logic that stays Walker's decision would support a moratorium on enforcing DADT pending a definitive determination of its constitutionality. Irreparable harm is more likely to come to those who are discharged under an extraconstitutional statute than to the military, which could in the most questionable cases put purportedly LBGT servicemembers on paid leave for the duration.

    Posted by: Rich | Sep 22, 2010 6:28:11 PM


  24. I agree with Bobn.

    MrRoboto, when I read your comment, it really made me ache. I've only been paying attention to and participating in politics for the last 9 years or so, and the world I've come of age in is very different for gays than what you may have experienced (Excuse me for being presumptuous if this isn't the case). Please don't lose hope. It really, really sucks that this happened, but I know there will be another chance to handle it soon. I know the media has been saying there will be a pounding in November, but I just don't see that being the case. When was the last time the media was right? Seriously.

    Posted by: jjasonham | Sep 22, 2010 6:42:12 PM


  25. Such delightful, high brow discourse. Bottom line, discrimination continues, however fascinating and intricate the procedural reason-ification. And the double bottom line is this: DADT will be on the books until 2018 at least, thanks to the fine, spineful advocacy of he who won our vote on this issue, only to wag his finger and say - oh gee, it's the Republicans fault.

    Please correct my procedural naivete, but were the Democrats not in control of both houses, with a Democratic prez in the white house? What else does one need to push forward the tide of civil rights and undo a grave and un-American injustice? When else will that come?

    Whatever it was, however we want to categorize and essay it, "it" exists now as mere root of bounty.

    Thank you, sir, may we have another?

    Posted by: Tom | Sep 22, 2010 9:27:02 PM


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