Nan Hunter

The broader ramifications of DADT repeal...even in slo mo

Filed By Nan Hunter | May 30, 2010 4:00 PM | comments

Filed in: Politics
Tags: Don't Ask Don't Tell

I had dinner two nights ago with a friend who said he was thoroughly confused by an email blitz of conflicting views about the DADT repeal legislation. What did I think, he wanted to know. Bottom line - I believe that this repeal in slow motion is an extremely smart political move, and, while the fat lady hasn't yet played taps for DADT, the very strong odds are that a hideous law will soon be history.

We've all heard the downsides of the DADT deal: The policy will continue to be enforced until the last stage of a multi-step process is complete; the arrangement could fall apart at any point in that process; and the legislation contains no anti-discrimination provision (as was originally proposed) to protect those who come out in the post-DADT world.

I'm pretty optimistic, notwithstanding these downsides, for several reasons. First, POTUS has, however reluctantly, bought in big time to the deal; having it fail would be a massive lose-lose proposition for him with every voter segment. So the administration has every incentive to make it succeed. Second, the public has "been there, done that" with this issue, and I doubt that conservatives will find much traction for obstructionism outside their die-hard base. Lastly, I question whether anti-discrimination words on paper would have been terribly useful: with or without them, DoD has to carry out this transition with a minimum of thuggish resistance in the ranks or else the U.S. military will be perceived as unable to prevent the kind of fragging that broke out in the last stages of the war in Vietnam. In other words, the self-interest of the White House and the Pentagon now lies in managing a successful phase-out, not (as before) in trying to endlessly postpone it.

Beyond skepticism about the negatives, why do I think so highly of what seems like typical beltway business-as-usual deal making?

First, although it is business as usual, the LGBT community comes out way ahead. With midterms approaching, the political environment for progressive legislation is going to get much worse, even if, as current polls indicate, the Dems show signs of holding more seats than pundits predicted a few weeks ago. Given this environment, I don't see a plausible alternative scenario in which repeal would go into effect any faster than it will under the new legislation. Indeed, we may come to look back on this moment as an example of a smart inside-outside strategy, in which advocacy organizations huddled with Congressional leaders who cajoled the White House, while activists heckled, demonstrated, and chained themselves to fences to press the issue.

Second, as the process goes forward, court cases challenging DADT will wind down. The sooner the military cases diminish the better because, with few exceptions, the military always wins.

The biggest problem in DADT litigation is the Equal Protection standard of review that is applied. Courts are hesitant in any situation to treat sexual orientation classifications as suspect, but in military cases, that reluctance is even stronger. As a result, except for an ACLU case (Witt v. United States) now set for a summer trial, DADT cases have produced a long line of precedents in which courts defer to the military and uphold a discriminatory policy. Although everyone understands that the standard applied in the military context should not control civilian cases, DADT cases comprise the bulk of federal court Equal Protection decisions dealing with sexual orientation, which distorts the doctrine across the board. I really won't miss them.

Lastly, there is a silver lining to the perception that the policy has already ended, even though it hasn't. This perception itself sets a higher threshold for debate on LGBT issues. As far as the public is concerned, the exclusion of openly lesbian and gay service members is over. Done. Next?

And that's exactly what we want the conventional wisdom to be.

(Cross-posted at hunter of justice)

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"Bottom line - I believe that this repeal in slow motion is an extremely smart political move, and, while the fat lady hasn't yet played taps for DADT, the very strong odds are that a hideous law will soon be history."

Why is it smart? It is going to be filibustered away.

This is some fancy, coordinated grandstanding. A charade.

Don't be so optimistic, Andrew! It will be vetoed by Obama over the F-35 engine issue, everyone knows that!


What a great article! I really agree. While it may be frustrating to have such a round-about process to deal with DADT, in the long run I think this strategy is beneficial to gay rights and the Democrats come November.

By using the military review as cover, we take away the Republicans' weapon of "hurting military readiness". Without that, they will have to cave to the pressure of 78% of voters want the policy removed.

I'm sure the study will come back green lit. It's really the last argument the Republicans are using. And by being cautious, Republicans can't say that the Democrats are anti-armed forces by forcing the military to adopt social changes that they aren't prepared for.

It's a terrible policy and should never have existed, but I feel the end is in sight. By going about it this way, DADT will be gone eventually. Maybe not today, but soon.

Michael @ | May 30, 2010 5:17 PM

Respectfully, I see tell-tell signs someone's not just been drinking the Kool Aid — but has started mainlining it.

"As far as the public is concerned, the exclusion of openly lesbian and gay service members is over. Done. Next? And that's exactly what we want the conventional wisdom to be."

I have read some absurd assertions in the last week, but, congratulations, you take the prize. ALSO came in Second with, "I question whether anti-discrimination words on paper would have been terribly useful." To which the obvious retort is, "If it would have been so useless why did ObamaGates insist on it being stricken before they would even consent to the charade of moving "forward." Your assertion about an element in a law potentially passed by Congress [minus a "we'll do what we want" signing statement by POTUS which is what I anticipated] would be astonishing in any case, let alone from a professor of law.

Most have been conned into thinking that the issue was solely "delayed implementation" when that was nothing less than a Big Lie by the White House and the Pentagon because they had refused to cooperate even when Congress offered them the delay way back on February 2nd, which, in fact, has been in the House bill for the last FIVE YEARS.

One ventures to say that the 600 or so who have been discharged since January 20, 2009, when Obama started ignoring his Congressionally mandated unilateral power to stop discharges in the name of national security, and defending their discharges as constitutional in half a dozen court well as those who will discharged in the furture...might also disagree with your "everything's beautiful" song recital.

The ONLY ones who will functionally benefit from this charade by the end of the year are Obama and the Dems who approach midterms having once again narcotized the majority of their gay and nongay base on the issue.

Within two days of receiving an e-mail from Organizing for America AKA Obama Nation asking me to "Join the President's pledge to repeal "Don't Ask, Don't Tell" today" [WHERE was their call for support of an ACTUAL end to discharges bill with teeth two weeks ago?], I received another one from them informing me that there would be a midterm elections kickoff event....drumroll....wait for it....IN THE CASTRO!

As for "Witt v. USAF," with respect, you're as wrong about that as everything else. The retrial is set for September, not "this summer." And lost in all the history-making smoke and mirrors act by our virtual new fourth branch of government is the fact that SECDEF Gates never kept his February 2nd promise to announce, among other things, in 45 days, "new rules and procedures in light of the appeals court decision in Witt versus the Department of the Air Force for the areas of the country covered by the appellate courts"....a year and a half after that court decision and counting.

Obviously you expect in December an actual, unequivocal, universal end to discharges to, like Santa Clause, come to town.

With apologies to the Marx Brothers, "there ain't no sanity clause."

In March, 2009 you said:

"Given the debacle that led to Don't Ask Don't Tell at the beginning of the Clinton administration, I don't really blame Obama for wanting to prioritize other things first, like taking over the auto industry. The White House, the Justice Department and Congress all seem to have put DADT repeal deep in the file marked "after the 2010 midterms."

It's still there. Repeal of DADT had some Republican support until it was turned into "decide and then look at the study." It has been made way too easy to "object" to. That's why I believe it's a charade. It's perfect for filibuster and currently we have only 58 votes.

In a few weeks it will be deferred until after the mid-terms.

I think that we will see, from what happens with DADT, how committed the Administration is to LGBT issues more generally.

Bill Perdue Bill Perdue | June 1, 2010 2:36 AM

Jillian, you speak as if the tent show tour with ex-gay scum McClurkin, Obama's decision to excise all references to our agenda from the Democrat (sic) platform, his sabotage of same sex marriage in California or his Inaugural invitation to christer dominationist/pogromist Rick Warren weren't clear predictors of what he'd do.

They were pretty accurate.

ENDA is being stalled. Obama desperately tried to stall repeal of DADT. His administration repeatedly defended DADT and DOMA in court using rancid homohating language. His signature on the tepid hate crimes bill and a couple of invites to Easter egg bashes don't quite fit the image of 'fierce defender' or excuse his open contempt for us much less what he did galvanizing the bigots to vote down same sex marriage in California.

When do you plan on making up your mind about Obama and the Congressional Democrats?

Michael @ | May 30, 2010 8:32 PM

As I woke up on a different planet last Monday, I won't risk a guess of what's going to happen re ENDA.

But, here are some facts as I understand them.

1. Public support is higher than for any other issue, and no one in the Antigay/Antitrans Industry would ever vote for Obama anyway, and it SHOULD know that.

2. While there are some truly puerile, hateful people in Congress still fighting it EVEN WITHOUT including transgenders, there is not an ENTIRE goverment arm like the giant Pentagon opposing it that Obama needs to appease for any number of other reasons.

Sooooo, what will be his excuse if he continues to fail to keep his promise to "place the weight of my administration behind the enactment of a fully inclusive Employment Non Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity"?

We have any number of men behind the curtain [Emanuel, Messina, Gates], is this Obama's revival of "The Wiz" in which ENDA, like actually ending disharges, is another victim of

"[Push it] down, [push it] down the road.
Don't you carry nothing
That might be a load
Come on, [push it] down
[Push it] down the road"?

IF Congress stood up today and repealed DADT wholesale, it would only mean that the law DADT would be repealed. It would not mean that the military regulations would be pushed aside. The standing military regulations still bar ‘homosexuals’ from serving. The current DADT repeal package from what I’ve read does not alter or change ANY military regulations. It doesn’t direct the DoD to do so either. This approach limps along like a wounded faun surrounded by a pack of wolves. I will be surprised if it makes it to this presidents desk or if it ends in the retention of any Gay or Lesbian service member. Maybe if we start a few more wars they'll rethink being inclusive.

Wendell Cochran | May 31, 2010 11:21 AM

Re: "I question whether anti-discrimination words on paper would have been terribly useful..."

Words are important,especially when they are repeated often enough they become doctrine in the minds of Republican psudo-Chrisitian rag-tag camp followers. Every day pro-GLBT blogger report a new quote by anti-gay/lesbian foes that I read with sheer amazement for the stupidity of the content or the brazen twisting of the facts.

I wonder if some one has compiled a comprehensive list of the all the most commonly used maliciously stupid statements (said that, done that) to defend the anti-gay arguments against providing equal rights and legal protection for GLBT citizens. It would make for facinaing reading just to be able to see in writing how the opposition is locked stepped to a single simple-minded idiology.

Nan Hunter Nan Hunter | June 1, 2010 9:19 AM

Reply to some, not all, of the comments -

Wow - such invective, when all that is going on here is a difference in opinion and speculation on all sides. No one is stupid, clearly wrong or mainlining KoolAid. And some of these comments consist of nothing but such invective - not even an argument, really, much less any reasoned attempt to persuade. So my first reaction - sure, let's disagree, but lose the attitude.

Perhaps my predictions and speculations will turn out to be correct - as with my commentary last year that predicted that DADT would be delayed until after the midterms, which is exactly what is happening. Or maybe the predictions by several of the commenters will be right - that the compromise will be sunk by F-35s, the complexities of the process for final repeal, or the administration reneging on the deal by caving in to right wing pressure. The media will report that the deal is about to fall apart many times; and it may crash, ultimately, or it may not. We will all know the answer in 6 months.

But whatever happens, there is no way this repeal is going to happen any faster than it is set up to work under this compromise. And even after the ink dries on the all statutory and regulatory changes, whenever that occurs, the real process of transition will still not be over. It took the military years to integrate racially AFTER Truman's executive order. It has taken them decades to figure out that women can be deployed into combat zones, a process that continues. And it will take years for the transition away from DADT to play out, during which advocates will have to watch them like a hawk.

So chill on all the drama and name-calling. I'll buy you a drink if I turn out to be wrong on this one. Can I count on you to buy me one if I'm right?

I'll take you out for a drink if you're right, Nan. But I don't really think it would be wise to meet up with our friend Michael, no matter who wins.

Anyway, I largely agree, mostly with the part about this being the best that could be done this late in the game with a White House that isn't particularly supportive of LGB people, military or otherwise.