Last night, Richard Socarides spoke at Seton Hall Law School, my alma mater.
Mr. Socarides is well-known as a former advisor to President Clinton, and he is currently of counsel to the New York and Los Angeles law firm of Brady Klein & Weissman, where his practice focuses on litigation, family law and the legal rights of gay men and lesbians. He was standing in for Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009), who was called in to meet with White House officials at the last minute.
He appeared at Seton Hall to speak about the Don't Ask Don't Tell policy. This was in conjunction with the American Association of Law Schools' policy that law schools must not permit recruitment by employers who violate AALS's non-discrimination policy, which includes sexual orientation. However, the law schools are required by law to comply with the Solomon Amendment, a Congressional law preventing federal funding of any school that does not permit military recruiting. To ameliorate this, the AALS requires law schools to explain the fact that the military is an organization that violates AALS policy, but which is permitted to recruit on campus because of the law.
In a discussion with the ever-interesting Professor Marc Poirier, who is an expert on property theory, environmental and natural resources management, cultural property, and law, gender, and sexuality, Mr. Socarides explained the origins of the policy, and how we got to where we are.
His take on these issues was perhaps a bit more nuanced than my headline. More after the jump.
Most significantly, he said that the incrementalism of the Clinton years, while seeming a good idea at the time, are no longer effective given the current social and political climate. During the Clinton years, ending gay discrimination in the military polled at about 30% favorability. When President-elect Clinton said he would make good on his promise to end gay discrimination, he did not realize the extent of the backlash. Military and Congressional officials immediately arranged to pass a law preventing such an executive order. The resultant compromise was "Don't Ask, Don't Tell," which, like all laws, are intended to do one thing but often result in another. The military justice apparatus immediately set about enforcing the law, resulting in discharges by the thousands based on unsubstantiated rumors. hearsay and supposedly-confidential communications. Many women were discharged for little more than fending off the advances of male soldiers.
President Clinton eventually realized that DADT was a disaster, and said so publicly.
President Obama's downfall on DADT was trying to avoid the mistakes of President Clinton, leading to blunders of his own. Rather than trying to use executive orders to mitigate the discrimination, President Obama said this was a legislative matter, and called on the legislature to fix its own mistakes. He struck a deal with Secretary Gates to end DADT, but on the military's own timeline, however long that might be. The social and political climate on DADT, however, had greatly changed since the Clinton years. Instead of polling at 30% favorability, ending gay discrimination in the military is now polling at something like 80% favorability. Speaker Pelosi, unwilling to wait forever, put a bill through the House to end DADT. The Senate, however, being a House Divided Against Itself, couldn't do it. And so here we sit, with President Obama insisting that he has to follow the law of DADT.
There was an interesting colloquy with a professor of constitutional law, Edward Hartnett, regarding whether President Obama had to enforce the law and appeal the recent ruling by a U.S. District Court judge in California that DADT is unconstitutional. Professor Hartnett said that President Obama could decline to enforce the law if it was genuinely judged unconstitutional, but not if he simply didn't like it. At the same time, the recent ruling was surprising because it was a case of a U.S. lower court issuing a world-wide ban on DADT enforcement, while its authority is generally perceived to be over cases and controversies originating within its venue. (He didn't say it exactly like that, but I'm rushing off to a meeting and I'm no constitutional expert. Feel free to make comments at the end if you wish to correct my somewhat inexact phrasing.)
Mr. Socarides also said that those who have been protesting for the end of DADT, for workplace protections, and other LGBT rights are "heroes." He said that he thinks, for the most part, they have been effective. "There is room for all kinds of strategies, and I think that if everybody was chaining themselves to the White House fence that would not be good," he said in what probably was a reference to Dan Choi and GetEqual. "We certainly have no shortage of people on the inside who want to advance LGBT rights by making nice. We do have a shortage of people who want to advance the cause by making a lot of noise and chaining themselves to a fence. I think, pretty much, in every case, when people have taken radical action, it's been a positive and resulted in positive movement, and I think they're heroes."
He also discussed the complex landscape of court rulings, administrative policies and executive orders surrounding DADT, suggesting that more could have and should have been done sooner, and more can be done now. In response to my question, he noted that it is true that President Obama had originally said that this is legislative matter that should be settled by the legislature. But, over time, he has issued various orders, or had his Administration issue or arrange for various orders that loosened up on the vicious anti-gay kangaroo court that passes for military justice. (My words, not Mr. Socarides'.) The discharges based on rumor and confidential communications, the privilege of commanding officers to discharge without real evidence or effective right of appeal, these have now been ended, and the discharges must now be approved by the top of the chain of command, effectively constituting a moratorium. These change to effect simple justice could have been implemented two years ago. Instead, thousands have been discharged while President Obama waited for a clearly dysfunctional Congress to act.
There was more, but now I must rush off to that meeting. Mr Socarides was brilliant, engaging, and extremely knowledgeable, and I hope to hear more from him in the future.