On Tuesday, September 20th, 2011, the statute known as Don't Ask, Don't Tell will no longer be the law of the United States. This should mark a triumphant day for an administration currently besieged by bad economic and political news. After all, no major legislation or policy that the administration has pushed has come close to being as popular as the repeal of Don't Ask, Don't Tell. And yet the day is likely to come and go with little fanfare; at least as signalled by the White House.
This is the third of four parts to the story of repeal from the viewpoint of one Kossack, yours truly, sitting at his computer advocating away on the backpages of Daily Kos as history unfolded on his screen. The first part, The Ecstasy and the Agony, provides a more extensive introduction, a complete timeline, and covers events that took place through 2009. The second part, Protests and Handcuffs and Senators, Oh My!, takes the story through May of 2010 and passage of the repeal amendment by the Senate Armed Services Committee.
The Agony and the Ecstasy
No one was much paying attention to the story. Barely a reporter was there to cover it. But what might have been the single most important event in the story of DADT repeal took place in an obscure Federal courtroom in Southern California.
There, from July 13, 2010 until July 23, 2010, the trial in the case of Log Cabin Republicans v United States occurred, putting the constitutionality of the Don't Ask, Don't Tell statute in question. The LGBT community, so otherwise intent of getting DADT repealed, seemed singularly uninterested. I remember at Netroots Nation asking Kerry Eleveld, an outstanding LGBT journalist and then a reporter for the The Advocate, what was going on in the case and where I could find coverage. She didn't know. Nor, did it seem, did anyone else.
Because of the Ninth Circuit's Witt ruling, Judge Virginia Phillips, presiding over the case, notified the defendants that the question of constitutionality would be subject to heightened scrutiny; the government could not simply argue that DADT was constitutional because, well, Congress passed it and they must have had a legitimate reason when they did so. Rather, if the trial found that the plaintiffs' civil rights had been violated the government needed to have had a damned good reason.
As the trial was still underway I made my way to Netroots Nation, 2010, which Harry Reid was to attend. GetEqual had just stopped traffic at the busiest intersection on the Las Vegas Strip a day before I arrived, protesting the lack of progress on ENDA and making plans for DADT protests. Attending an LGBT rights pre-conference strategy session, I walked out of the meeting room to find Dan Choi, alone, sitting in the hall and looking stunned. He had just received news of his discharge and was devastated. I am not a person who knows what to say in such situations, and probably made a fool of myself in the attempt. But it was yet another reminder of the awful toll DADT has had on its 'recipients'.
Days later, at one of the premier Netroots Nation events, Harry Reid was being interviewed on stage by Joan McCarter of Daily Kos. You all know the story; how Joan presented Dan's ring to Reid, how Reid at first refused it, and how he finally came to accept it on condition that he give it back to Dan when DADT had been repealed. Who can say what goes on in the mind of our leaders? But from what I saw, Reid was touched deeply, and I think this event contributed to his determination to see repeal through, even when it looked hopeless later in the year. I can still see in my mind Dan, just offstage, saluting Harry Reid.
With the Senate in recess over August, nothing would happen with the Defense Authorization Bill containing DADT repeal until September at the earliest.
But within a span of thirty-five days the legal landscape for LGBT equality was turned upside down. On August 4th, 2010, Judge Vaughn Walker declared Proposition 8 unconstitutional. Barely a month later, on September 9th, 2010, Judge Virgina Phillips ruled, in Log Cabin Republicans v United States, that Don't Ask, Don't Tell was unconstitutional as a violation of equal protection and of freedom of speech. DADT was now being assaulted on multiple fronts: judicially, legislatively, and in the court of public opinion, where poll after poll was showing that an overwhelming majority of Americans supported repeal. Even Lady Gaga was having her millions of little monsters call Senators to urge them to support repeal...
You'd think that might have been a signal to Congress. You would be wrong. Republicans, smelling blood in the November elections, were determined to obstruct any and all legislation up to and including the one bill previously proclaimed sacrosanct -- the Defense Authorization Act. Allied with recalcitrant Democrats, on September 21st, Majority Leader Harry Reid failed to find the sixty votes necessary to obtain cloture on the DAB.
This was agony. It looked like DADT repeal was dead, and people familar with court procedures realized that it would likely still take years of appeals to judicially drive the final nail in the coffin of DADT -- if indeed the case was ultimately successful. Needless to say, all hell broke loose, and justifiably so. Everyone started lashing out -- at the President, Reid, the Senate, military brass, and the Human Rights Campaign, to mention just a few. The President's promise to repeal the law now seemed out of reach forever, because with the upcoming election in November it was obvious by this time that Republicans would win a majority in the House and shrink Democrats' numbers in the Senate, leaving the prospects for a fresh repeal bill to pass the new Congress at nil. Calls became incessant for the President to Stop the Discharges by issuing an executive order.
On October 11th, GetEqual protested the President's fundraiser in Florida by land, air and sea.
Then events twisted again. On October 12th, after having briefs submitted by the government and response by LCR, Judge Phillips issued a world-wide injunction, ordering the Department of Defense to cease and desist all procedures having to do with Don't Ask, Don't Tell. This was ecstasy. It was, in a word, glorious. For a few crazy days, DADT was dead.
The administration and the Department of Defense panicked. (As if "no one could have predicted this" given Phillips' ruling demolishing the constitutionality of the law.) The military, to its credit, accepted the injunction and even began accepting applications for re-enlistment from gay veterans such at Dan Choi. The administration, to its lasting shame, refused to accept the out it had just had handed to it. DADT was dead and it could have remained dead if the government had chosen not to appeal Phillips' order. Arguing that they were bound to defend the law (a lie made evident only a few months later when the Department of Justice announced they would no longer defend DOMA), they sought an emergency stay from the Ninth Circuit.
On October 20th, the Ninth Circuit Court of Appeals issued a stay of Judge Phillips' order. DADT was back. The military, if not the administration, breathed a sigh of relief. Activists, on the other hand, were livid. On October 30th, the Department of Defense announced that henceforth, because of the legal uncertainies surrounding the law, only the three Service Chiefs would have the authority to sign off on DADT discharges. No one was really sure what that meant; the cauldron continued to bubble.
On November 15th, 2011, perhaps the signature protest of the DADT repeal movement took place. I knew about it in advance. And, it has come out, so did the Secret Service. Unless they tapped my email, they didn't get it from me.
Thirteen people, including Dan Choi, Robin McGehee, and Daily Kos's own Scott Wooledge (third from the right), handcuffed themselves to the White House fence, the third such protest. It was agony, and it was ecstasy. To see these brave men and women do this gave me hope once again.
The administration, having suffered grievously at the ballot box, having narrowly escaped 'disaster' via the Federal judiciary, and perhaps for the first time having realized that they really needed to do something, did something. They begged the Department of Defense to release its study early so that Congress, in its lame-duck session, might have time to try again for repeal.
The DoD 'complied' -- they announced that the study would be released on November 30th, a day early (I am not making this up). And so it was that on November 30th, instead of December 1st, 2010, the long-awaited and much-heralded study was released, showing exactly what the administration wanted it to show -- that DADT repeal could be implemented without harm to the military, but that it would take time to train servicemembers. On that same date Secretary of Defense Robert Gates finally called on Congress to repeal Don't Ask, Don't Tell.
Republicans in Congress were not amused. Nor convinced. With Senator Collins reprising the emmy-award winning role played by Senator Olympia Snowe delaying a vote on health care for as long as possible (and beyond) the Senate ground to a halt on the issue of what to put in and how long to debate the Defense Authorization bill. Reid, finally throwing in the towel, brought the bill to a cloture vote on December 9th, 2010 and, as before, it failed.
The long-awaited DoD study had failed to do the job the administration had claimed it would do -- convince Republicans to support repeal. The emotional roller coaster for repeal advocates had just hit its nadir, and just as suddenly rose up again.
The next day Senator Kirsten Gillibrand and Senator Joe Lieberman introduced what was once thought of as a impossible dream -- a standalone bill, independent of the Defense Authorization bill, that would repeal Don't Ask, Don't Tell. We may one day learn all the horse-trading that went on in these last few days of Congress. I can only speculate. At the very least it seems like there was some kind of agreement by Republicans to allow the bill to be voted on in return for various concessions on the budget and giving up on letting the Bush tax cuts expire.
On December 15th, the House passed the Gillibrand bill. On December 18th, the Senate achieved cloture on the bill, 63-33, and later in the day the bill itself passed, 65-31.
DADT was, if not dead, headed for a date with the executioner. President Obama had fullfilled his promise. Harry Reid could give Dan Choi his ring back. Joe Solomonese, the head of HRC who famously claimed that DADT would be repealed 'this year', could now mock his mockers (graciously, he did not).
On December 22nd, 2011, President Obama signed the repeal act into law. Surrounded mostly by politicians but with a guest list that included Dan Choi, Robin McGehee, and servicemen and women like Frank Kameny, Grethe Cammermeyer, Eric Alva, Stacey Vasquez, Victor Fehrenbach, Autumn Sandeen, Anthony Woods and Zoe Dunning, some of whom had had fought years ago in Federal courts and military tribunals against discrimination in general and the DADT law in particular, he closed the ceremony with the words
This is Done.
But it was not, yet, quite over.
Next: All Servicemembers Are Now Equal. Sort Of.