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Between Court and Congress, Don't Ask Don't Tell Hangs in the Balance

By L.K. Regan

Don't Ask, Don't Tell (DADT) is hanging by a thread. The ban on gays and lesbians serving in the military has been subjected to congressional review, and legislation intended to deal it a final death blow has been written. But now there are strong concerns that that legislation may not reach a vote before the midterm elections. DADT would then potentially remain in place—in which case, a new ruling in a California court may prove very important.

In a controversial move earlier this year, Democrats in the House of Representatives and the Senate attached a repeal of DADT to the 2011 Defense Authorization Act. This was widely seen as a way of getting around bringing DADT up for a potentially contentious stand-alone vote; as part of the annual bill appropriating funds for the military, the measure was almost certain to pass. But the problem is timing. Congress didn't bring the Defense bill up for a vote before their summer recess. Now, they are in session only until October 8, when they will again adjourn for the midterm election. Gay activists are pushing hard for Speaker Pelosi and Majority Leader Reid to bring the bill up for a floor vote before that October 8 deadline.

The problem, of course, is the looming midterm election, which threatens to transfer control of the House, and even potentially the Senate, to Republican control. Should this happen, Democrats would have until the end of the year to put the bill through in the lame duck session, before Republicans would take control in January. But a group of House Republicans have made it very clear that they will fight any such effort tooth and nail.

The chances of the bill coming up before the election are, however, dwindling. Gay-friendly U.S. Representative Mike Quigley (D, Chicago) has said that he's "not sure what happens between now and November, but [his] hunch is not a heck of a lot." With Democrats in the midst of intensely difficult campaigns, there seems to be a general angst about addressing a bill that, between its appropriation of funds for the military and its repeal of DADT, will prove controversial from both ends of the political spectrum. "I'm more hopeful about the lame duck session," Quigley says. "I have faith that we're going to repeal Don't Ask, Don't Tell." But Alex Nicholson, the Executive Director of Servicemembers United, isn't so sure. "Bumping [the Defense Authorization Act] off to lame duck is gambling with our community’s lives and livelihoods—the same risk we demanded Obama not take by putting off the vote until next year." With so many people's fates hanging in the balance, this seems like a moment for more than faith. It calls for action.

Enter action. A federal judge in California ruled late on Thursday that DADT is unconstitutional. If the policy isn't repealed by act of Congress, it may just end in a courtroom showdown. Judge Virginia A. Phillips, a District Court judge, heard a challenge arguing that DADT violates their constitutional right to due process (the Fifth Amendment) and the right to free speech (the First Amendment). As Judge Phillips' ruling says, "The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States service members in many ways. In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the Don’t Ask, Don’t Tell Act was necessary to significantly further the government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden." Though the ruling is almost certain to be stayed pending appeal, it signals, as the New York Times reports, "a growing judicial skepticism about measures that discriminate against homosexuals."

If political will fails, here's hoping that judicial will finds a path forward.