‘Don’t Ask, Don’t Tell’ repeal: the perfect alignment, with a price


The suspense is over: The U.S. Senate finally took a vote on a bill to repeal the ban on openly gay people in the military and passed it, 65 to 31. Having Congress pass that bill, to repeal “Don’t Ask Don’t Tell,” and having that bill signed by the President is an important legislative and political milestone.

It is not the first time the LGBT community has ever succeeded at dismantling a form of institutionalized discrimination. That honor goes to the eradication of laws prohibiting consensual sex between same-sex partners. That was done state by state and, eventually, in the U.S. Supreme Court.

The community has, in several states, won the right to obtain marriage licenses the same as straight couples. And, in 2010, it made enormous progress towards marriage equality nationwide through several lawsuits.

But passing the DADT repeal bill in Congress this year was itself a Herculean feat. Partisan hostilities were at an apex, and the Democratic majority was eroding. Two efforts to break a Republican-led filibuster failed. Many in the community voiced impatience and exasperation at the stops and starts in moving legislation.

Even more were uneasy with the White House strategy of giving military officials such voice in how and when repeal might happen. And some wondered why repealing the discriminatory policy in the military took precedence over bills that could have benefited even more people. At the end of 2009, after all, the community was hearing that the Employment Non-Discrimination Act (ENDA) would get a vote.

ENDA was blocked, in large part, by deliberations over the landmark –- and contentious — health reform legislation. It was also snarled to some extent by preoccupations over bathroom accommodations and wild imagining of bearded kindergarten teachers in dresses.

But ultimately, says Mara Keisling, an activist who has pushed hard for ENDA, the “Don’t Ask Don’t Tell” repeal had more money and more organizational drive behind it, from Servicemembers Legal Defense Network, Servicemembers United, GetEqual, and the Center for American Progress, to name just a few.

It got a presidential boost in the form of President Obama’s 2010 State of the Union address. It had a vehicle –- the annual defense authorization bill — on which to ride. And it had the fierce advocacy of legislators who just would not give up –- Rep. Patrick Murphy (D-Penn.), Senator Joe Lieberman (I-Conn.), and many, many others.

At times, it seemed as if the push had turned to shove and the bill would be derailed. So, too, the public’s growing angst over the deep recession emboldened conservatives of every ilk to oppose anything and everything the president and the Democratic Party supported.

But that same public refused to get onboard the gay bashing wagon in the “Don’t Ask Don’t Tell” repeal fight. Poll after poll showed growing support for allowing openly gay people serve in the military. A massive survey of active duty personnel and their families found only a few, isolated pockets of trepidation about repealing the ban.

So, passage of a bill to repeal the Clinton-era ban on gays in the military was an event whose time had come, the triumph of a relentless campaign to end discrimination, and the result of a perfect alignment of public opinion, Democratic Party control of Congress and the White House, and LGBT community focus.

It was a major political and legislative accomplishment for a community that has long been relegated to second-class citizenship status. It conjures hopes for undoing other institutionalized and formalized discrimination against LGBT people –- like the federal Defense of Marriage Act (DOMA). And it may even hobble some elements on the far right that have sought to prosper by peddling hurdles to the mere idea that LGBT people deserve the same respect and rights as other citizens.

But it does not guarantee the ban against openly gay men and lesbians in the military will actually be gone anytime soon. In fact, 2010 will end with the ban still intact.

“Gay, lesbian and bisexual service members posted around the world are standing a little taller today, but they’re still very much at risk because repeal is not final,” said SLDN Executive Director Aubrey Sarvis, in a statement released after the Senate vote. “…Even with this historic vote, service members must continue to serve in silence until repeal is final.”

That’s because the strategy chosen by the Obama White House for ending the policy –while successful thus far and noble in its sensitivity to how difficult “change” is for many people– is akin to soaking a splinter until it falls out. The administration asked that Congress not vote on repeal for nine months while the Pentagon conducted a “study” of how it might best implement repeal “if” Congress repealed it.

Now, after the House sends the bill to the president and he signs it, another waiting period begins. The Department of Defense must develop regulations and conduct “the planning necessary to carry out this change carefully and methodically,” said Gates, following Saturday’s vote.

“The legislation provides that repeal will take effect once the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation of the new policies and regulations written by the Department is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces,” noted Gates.

“As I have stated before,” he said, “I will approach this process deliberately and will make such certification only after careful consultation with the military service chiefs and our combatant commanders and when I am satisfied that those conditions have been met for all the Services, commands and units.”

“It is therefore important that our men and women in uniform understand that while today’s historic vote means that this policy will change, the implementation and certification process will take an additional period of time. In the meantime, the current law and policy will remain in effect,” said Gates.

And then, once certification is submitted, the legislation calls for a third waiting period -– a 60-day waiting period between certification and implementation.

The language of the bill does not stipulate what, if anything, should take place during this third waiting period, but Senator Robert Byrd (D-W.Va.), who passed away in June, reportedly agreed to vote for repeal of DADT only after this waiting period was added. He told reporters at the time that the 60 days would give Congress “an opportunity to re-examine the concerns of our Armed Forces and the manner in which they are being addressed.”

Thus, the splinter may not be ready to fall out for some time to come, especially since the 60-day review period will take place after Republicans have taken control of the House and increased their numbers in the Senate from 41 to 47.

Could a Republican House attempt to thwart repeal during that 60-day review period?

“Congress could always re-enter the picture, even repeal the repeal,” said longtime legal scholar and activist Nan Hunter, “but there are obviously not the votes for that, even in the next Congress. You might see oversight hearings on the House side, but, even there, I would doubt it, since I think [Republicans] will want to send a message that they are concentrating on curbing spending and other [economic] issues.”

No doubt, President Obama and the Democrats will be concentrating on such issues in 2011, too.

The first debate of the 2012 presidential campaign among Republican candidates will take place in the spring of 2011. Given that between 50 and 78 percent of Americans supported the repeal of “Don’t Ask Don’t Tell,” it seems unlikely that President Obama’s push to make repeal happen will be of any consequence in his effort to be re-elected.

But it is also unlikely that the president –- or any other presidential candidate — will be spending much political capital to champion any other gay-related drives toward equality in the near future. Politicians must balance their capital among a wide variety of constituencies –- that’s how they get re-elected.

So, for marriage equality, the LGBT community will have to focus on the courts, through such critical legal battles as Ted Olson-David Boies lawsuit against Proposition 8 in California and the Gay & Lesbian Advocates & Defenders lawsuits in Massachusetts and Connecticut. And for protection against discrimination in the workplace, it will to look to the future and another perfect alignment.

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