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Lame Duck: DADT Repeal Stalls in Courts and Congress

By L.K. Regan

Don't Ask Don't Tell (DADT), the ban on gays in the military, has been on the verge of ending for weeks now, but the final opportunity to put a close to it may be slipping away. And as it does, tensions are mounting, not only between figures and even branches of government, but between gay rights groups, who are coming into open conflict. The way forward is suddenly very unclear.

Today, thirteen GetEQUAL activists, including veterans, chained themselves to the White House's north gate in protest of the continued survival of DADT. They raised a response from Senate Majority Leader Harry Reid, a staffer for whom told the activists that, while Reid is still on board with a DADT repeal, he is in a tough position. "Senator Reid stands behind his commitment to repeal DADT, but he can't do it alone," the aide said. "He is going to need republican senators, notably Sen. McCain, to heed the advice of our military leaders and reverse this discriminatory policy."

And herein lies the problem. DADT repeal has been hanging, waiting for a report from a Pentagon study that has promised to give political cover to potentially persuadable senators like Jim Webb (D-Va.) or Olympia Snowe (R-Me.). Last week, results of that study were leaked to the Washington Post, and indicated that the military is overwhelmingly in favor of ending the policy. As the Post reported: "More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the 'don't ask, don't tell' policy would be positive, mixed or nonexistent, said two sources familiar with the document. The survey results led the report's authors to conclude that objections to openly gay colleagues would drop once troops were able to live and serve alongside them."

In light of this result, Reid's mention of Senator McCain (R-Az.) is informative, because McCain, who once supported repeal of DADT, has decided to object to the entire premise of the Pentagon study. "Once we get this study," he has said, "we need to have hearings, and we need to examine it, and we need to look at whether it's the kind of study that we wanted. It isn't, in my view, because I wanted a study to determine the effects of the repeal on battle effectiveness and morale. What this study is designed to do is, is to find out how the repeal could be implemented. Those are two very different aspects of this issue."

Clearly, Reid would like to act sooner than later—before a new Senate is seated in January, and his majority shrinks. But that majority may be a chimera anyway if, as McCain's comment suggests, the Pentagon study is not sufficient to persuade—or at least give cover to—swing votes. Currently, DADT repeal stands attached to a Defense Authorization bill that could come up during the lame duck session of congress in the next few weeks. But the coalition behind it is weakening, and it's not just Republicans and uncertain Democrats abandoning the bill—contention has sprung up among gay groups as well about whether to push for a DADT repeal if it might mean a Republican filibuster of the larger defense bill.

On Monday, three groups that support lifting the gay ban—the Palm Center (a pro-gay think tank at the University of California, Santa Barbara), OutServe (a group of currently serving gay and lesbian personnel) and Knights Out (gay and lesbian West Point alums, faculty and staff)—said they favored passing the bill whether or not it includes language ending DADT. They released a statement saying, "There is nothing more important than loyalty to those with whom we serve. This means ensuring that no one issue interferes with funding the courageous and selfless work our fellow service members are doing around the world."

These groups have sought to find allies by showing a dedication to the troops first, and DADT repeal second. But their statement hasn't been well-received in gay advocacy circles. Fred Sainz, a spokesman for the Human Rights Campaign, has described these groups as, "Good people who are extremely naïve legislatively." And Servicemembers United Executive Director Alexander Nicholson called their position "absolute lunacy." He went on, "It has been the position of the organizations that actually work on repealing 'don't ask, don't tell' to strongly oppose stripping the repeal language out of the defense authorization bill."

All of this controversy leaves the question of DADT's fate has turned attention back to the court case challenging the policy's constitutional legitimacy. On Friday, the U.S. Supreme Court upheld an appeals court's decision to place a stay on a lower court ruling that had overturned DADT (got all that? That's a lot of rulings). The result: DADT remains in enforcement, despite a brief window where it was suspended thanks to that lower court's intervention. For the Log Cabin Republicans, who brought this court challenge to DADT to begin with, this loss is no reason to turn away from the courts—mostly because of the problems facing the legislative route. Attorney Dan Woods, who is representing Log Cabin Republicans, has said, “With the likelihood of Congress repealing ‘Don’t Ask, Don’t Tell’ fading with each passing day, judicial relief continues to be perhaps the most viable avenue for ending this unconstitutional policy."

Rock, meet hard place.