Don't Ask Don't Tell (DADT) is still law. I think that it's bad law; however, I also think that President Obama has logical reasons for wanting Congress to repeal DADT rather than allowing a court ordered injunction to halt application of DADT or using an Executive Order to end DADT. Here's why.
It's dangerous territory for the president to attempt to repeal duly passed legislation via exercising his executive power. There is a tendency to make comparisons to Truman's use of an Executive Order to end segregation in the military. It's an invalid comparison. Truman didn't have to contravene existing federal law in order to desegregate the armed forces. Jim Crow segregation laws were a hodgepodge of state laws. It also should be noted that it was five years after Truman issued his executive order before the armed forces were more than 90% integrated.
A good friend feels that Obama needs to play hardball to earn the respect of Congress, either by directing the Justice Department not to appeal the court decision or by issuing an Executive Order to end DADT. I disagree. Obama won't earn their respect, they'll just use his actions as a ground for the ever growing rumblings about impeachment. It doesn't matter that they can't oust him; it didn't stop them when it came to Clinton. Impeachment is a time consuming process and detracts from time that the president needs to spend on important matters such as the economy.
Another risk is that if DADT is repealed by a court order rather that a change in law, it could succumb to the same fate as Brown v.the Topeka Board of Education. In the 1990s, white parents began bringing lawsuits against school systems arguing that the 1954 Brown decision had exceeded the authority of the courts. Specifically they opposed the use of race as a factor in pupil assignment to achieve integration. These cases were filed and won in federal courts. In 2007, the big kahuna of these cases was heard before the U.S. Supreme Court when two cases were combined, Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools (PICS) v. Seattle School District. The U.S. Supreme Court ruled that the school systems in Seattle, WA and in Louisville, KY had violated the equal protection clause of the 14th Amendment by their use of a student's race in deciding whom to admit to particular public schools.
The decision has resulted in public school systems across the country being barred from using race as a factor in student assignments. Some systems have realized that they can still achieve racial integration if they use socioeconomic class in pupil assignments. However, the new trend is the one playing out in my local school system. The newest board members want to abandon the use of socioeconomic class and make assignments to neighborhood schools, the same term used in the 1960s as not so subtle language for maintaining segregated schools. The result has been a resegregation of schools not just in the south but particularly in major cities in the Midwest and Northeast. According to a 2009 report by Professor Gary Orfield, "...40 % of Latinos and 39 % of blacks now attend intensely segregated schools, in which 90 to 100 percent of students are non-White. The typical Black or Latino student attends a school where nearly 60% of the students are low-income, creating a doubly-damaging race and poverty divide that is worsening the isolation felt by these minority communities."
What courts render, they can undo. It took nearly 50 years to undo Brown, I think that it won't take nearly as long to reverse a decision from the courts to repeal DADT. Especially as the current decision is from a federal district court, not the Supreme Court.
Let's say Obama successfully issues an executive order ending DADT. Let's assume that he wins in 2012. DADT will remain repealed. In 2016, he can't run again. Say a Republican wins the presidency, a conservative right winger who ran on a program of promising to reinstate DADT. He/She could follow Obama's precedent and do it using an executive order. He or she wouldn't be making new law; the law was never repealed. Or a party with standing could file a federal lawsuit that DADT was unconstitutional--perhaps some members of the military who believe that DADT demeans morale. SCOTUS agrees to hear the case and holds that the use of an executive order to repeal DADT was a violation of the authority of the executive office because it stepped in prior to there being a chance for Congress to hear and vote on whether to repeal DADT.
All of this is supposition but it's plausible supposition. If I've thought of this, you can bet Obama, who is a true constitutional scholar and a lot more knowledgeable lawyer than I am, has considered this and that he and his staff have been discussing all the angles.
I'd like to see DADT repealed by Congress. However, it's like in the horror movies when some nitwit knocks out the monster and doesn't make certain that it's really dead. If DADT isn't killed outright it will rise again and bite us in the butt.
So what can we do? The bill repealing DADT has already been passed by the House; it's being held up in the senate. Contact the Senators who are sitting on the fence and the leading democrats in the senate. The Servicemembers Legal Defense Network (SLDN) recommends that we contact the following Senators via email, snail mail, or telephone calls and tell them that you support repealing DADT. Harry Reid (D-NV), Carl Levin (D-MI), Susan Collins (R-ME), Olympia Snowe (R-ME), Mark Pryor (D-AR), Blanche Lincoln (D-AR), Richard Lugar (R-IN), Judd Gregg (R-NH), Scott Brown (R-MA), George Voinovich (R-OH), Kit Bond (R-MO), Joe Mancin (D-WV), Lisa Murkowski (R-AK), Mark Kirk (R-IL).
There are multiple sites that you can use to get email, snail mail addresses, and phone numbers for your senators. My favorite is
http://www.contactingthecongress.org/.
Other sites are:
http://www.senate.gov/general/contact_information/senators_cfm.cfm
and http://www.senate.gov/
Sheria,
ReplyDeleteA finely reasoned piece on this issue, thanks.
This is one of those areas in which the government lags considerably behind the public -- frankly, most people under a certain age, and a pretty fair amount over that age, think this whole brouhaha would be laughable if it didn't have real consequences for some very honorable people.
The arguments I've heard about "unit cohesion" strike me as particularly ridiculous -- people in the military are a tough bunch, and it makes no sense to suppose that they're willing to get shot at and risk being blown up but are somehow likely to curl up into a fetal position at the mere prospect that somebody next to them might be gay or lesbian. Oh, come on! That seems to me an insulting supposition to make. Beyond a bit of grumbling from a small percentage of individuals who would soon get over it, I think, nothing much would come of the change.
Dino, the Pentagon's reposrt finds that repealing DADT will not disrupt the military. Polls of the public have been consistent in finding that the majority of people don't oppose repealing DADT. I like your point that the people in the military are unlikely to suffer from some massive undermining of morale at the notion of serving next to a gay or lesbian comrade.
ReplyDeleteMy dad is a veteran, age 76, and he thinks DADT is ridiculous. He says that he served with gay men in the 1950s and that no one made a big deal out of it. Instead, he recalls that they did tend to engage in stereotyping their gay comrades in arms, soliciting their help in writing letters to wives and girlfriends and in selecting gifts to send to the same. He says that it was rare that anyone made note of these men being gay; they were known as sensitive and good at writing love letters. I don't think that they ever considered that the macho sargeant could also be gay.
I follow and understand your reasoning; however I am still hesitant about waiting for a legislative solution that might never happen when a SCOTUS decision would undo DADT in a day. I have little faith in voters or the legislative process (especially these days). If we were to depend on idiots and reactionaries for fairness and justice, we would still have slavery.
ReplyDeleteThere is also a compelling military reason for abandoning DADT by executive order: Missions have been seriously compromised when key personal are suddenly dismissed over DADT, and there are no qualified replacements available.
Thank you for this piece, Sheria...especially for the specific contact information.
ReplyDeleteI have heard the argument that, once DADT is changed by any avenue, it will quickly slip beneath the public purview and is unlikely to ever be revived. When was the last time we heard a politician running on repeal of the laws and policies that allow women to serve in combat roles? Not exactly an oranges-to-oranges comparison, but an example of how disinterested the public and politicians are about daily functions of the All Volunteer Military.
DADT was problematic and divisive, but now one of the arguments for leaving it intact is that the troops and their officers are used to it and it might be detrimental to unit functioning to make a profound change. There's a lesson.
"If we were to depend on idiots and reactionaries for fairness and justice, we would still have slavery."
ReplyDeleteOr would still be a British colony. I can't add much to all the above, but only want to point out how foolish it is to be seduced by pastel colored and soothing words about "family values" Traditional values" and "Judeo Christian foundations for the Constitution."
The poison comes wrapped in these things.
I agree with the issues raised by all; however I wrote this post anticipating the SCOTUS' response released today.
ReplyDeleteThey declined to address the case on the merits and ruled that DADT is to remain in place while the merits are being considered in the lower courts. The plaintiffs had asked the Supreme Court to uphold the restraining order issued by the federal appeals court. This is what I expected based on precedent. SCOTUS isn't going to get involved with the merits of the case until all of the lower court appeals have been exhausted. Neither is the president going to issue an EO while this case is moving through the court system. The good news is that the president can choose to issue an EO at a later point if the congressional repeal falls through.
From upi.com:
Supreme Court keeps 'don't ask' in place
WASHINGTON, Nov. 12 (UPI) -- The U.S. Supreme Court refused Friday to block the Defense Department from discharging openly gay military personnel.
The justices in a brief order rejected a request by Log Cabin Republicans for a restraining order, CNN reported. The gay rights group won a ruling from U.S. District Judge Virginia Phillips in California that the "don't ask, don't tell" policy is unconstitutional and an order ending it, but an appeals court granted a stay.
With the high court's ruling, "don't ask, don't tell" will remain in place at least until March, Scotusblog reported. President Bill Clinton introduced the policy with an executive order, and Congress then enacted it into law.
Justice Elena Kagan, who was involved in challenges to the law as solicitor general, did not participate in issuing the order. Scotusblog said that suggests she might also abstain when the case comes to the Supreme Court, creating the possibility of a 4-4 split.
President Obama opposes the policy but says it should be changed by Congress, not the courts. His administration says a new policy on discharges provides new safeguards against unfair dismissals.