The Ninth Circuit’s decision to stay Judge Phillips’s decision further frustrates repeal advocates and puts a bright spotlight on you to reconcile this endless legal wrangling with your public promise to end “Don’t Ask, Don’t Tell.” While we continue to call on your Administration not to appeal, if the Justice Department does insist on defending this discriminatory law, I strongly urge you to instruct government lawyers to inform the appellate court that the Executive Branch believes that the “Don’t Ask, Don’t Tell” law is unconstitutional. I agree with the esteemed lawyer and former head of the Office of Legal Counsel at the Department of Justice, Walter Dellinger, that such a move would send the Ninth Circuit a critically important message.
Furthermore, the litigation strategy challenging “Don’t Ask, Don’t Tell” is made all the more critical by the challenges a legislative repeal has faced in Congress. While the House approved repeal by a wide margin, the Senate’s first and second attempts to move forward on the critical Defense Authorization bill were stymied by Republican obstructionists looking to score political points before the midterm elections. There is still an opportunity for the Senate to send the repeal of “Don’t Ask, Don’t Tell” to your desk in the lame duck session, but it will not happen if you do not put the full weight of the Office of the President of the United States behind it. Republican opponents would rather see the Defense Authorization and everything in it – military pay raises, critical armor and equipment for our troops, health coverage for their families on the home front – fail than let gays and lesbians serve their country openly. This is an outrageous insult to our troops, to their Commander-in-Chief, and to the Defense Department charged with their operations and their care. You and Secretary Gates must be full partners in making clear to Senators that it is doubly unacceptable to hold hostage the needs of every soldier, sailor, airman and Marine in a desperate attempt to preserve a law that flies in the face of the American ideals they sacrifice to protect every day.
It is because “Don’t Ask, Don’t Tell” is contrary to our core values as a nation that it must end. And we must have a durable solution – legislative repeal or a solid judicial decision. But if those fail, you must not allow another day to go by in which a brave gay or lesbian service member is discharged based simply on sexual orientation. HRC has urged your administration, privately and publicly, for more than a year to use every tool at your disposal as Chief Executive to at least significantly reduce discharges, if not end them entirely. More can be done in this regard.
You can and should issue a stop-loss order suspending enforcement of “Don’t Ask, Don’t Tell.” This discriminatory law has already deprived our military thousands of service members, many with critical skills in fighting terrorism. You have acknowledged that it harms our national security. If we fail to achieve legislative repeal this year, and if you will not abandon the defense of this discriminatory law in court, then it is imperative that you use your clear authority as President to end the discharges. Anything less is unacceptable.
We have fought long and hard to get this close to ending “Don’t Ask, Don’t Tell.” We pledge to continue that fight, every step of the way, until this unjust law is gone for good. Future generations will look back at this moment – we must not let it become a setback in the long march toward full equality, but instead make it the turning point it is poised to become.