Despite months of work on framing its repeal—despite a recent court ruling declaiming its constitutionality—despite its overall unpopularity—Don't Ask Don't Tell remains the law of the land after the Senate failed to vote for its demise. Is there any hope left for ending the ban on gays in the military in the near future?
The vote in the Senate on Tuesday was tight, and ultimately unsuccessful. Democrats brought the Defense Authorization Act to the floor with two controversial amendments—one that repealed DADT, the other that would give legal status to young immigrants who have gone to college or served in the military. Sixty votes were needed to break a Republican filibuster of the bill, and Democrats fell four votes short of that super-majority. (Democratic Senators Blanche Lincoln and Mark Pryor, both of Arkansas, joined all the Republicans in blocking the bill.)
The problem is clearly the mid-term elections, which are likely to hand control of at least one house of congress to Republicans. But that doesn't make November a hard deadline for repealing DADT: Democrats could bring the bill up during the lame-duck session after the election and before the seating of the new congress in January. They can—but will they? Gay rights activists are certainly pushing. "Time is the enemy here," said Aubrey Sarvis of the Service Members Legal Defense Network. "We now have no choice but to look to the lame duck session where we'll have a slim shot. The Senate absolutely must schedule a vote in December when cooler heads and common sense are more likely to prevail once midterm elections are behind us." Senate Majority Leader Harry Reid says that he is ready to try again for a repeal before the end of the year; and Senator Joe Lieberman of Connecticut swore that "This ain't over!" on the Senate floor.
But as the legislative route looks increasingly doubtful, eyes turn to the courts. Earlier this month, a federal court judge in California declared DADT unconstitutional, and threatened a nation-wide order suspending the policy. And in Tacoma, Washington, the case of lesbian Air Force nurse Marjorie Witt, who was discharged under DADT, is being heard in court. Her case was reinstated in 2008 by the Ninth Circuit Court of Appeals after a federal judge dismissed it. Her suit is a request for reinstatement rather than a direct repeal of DADT—but in her intense desire to serve, Major Witt, like so many other LGBT men and women in uniform, vividly illustrates the shameful exercise that is Don't Ask Don't Tell. Hopefully her case can prevail where congress has failed.