In less time than it takes to say 'Michele Bachmann' 100 times without puking, the statute known as Don't Ask, Don't Tell will no longer be the law of the United States. The question posed by this iconic cartoon's question will no longer bother us.
This should be a triumphant event 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 tomorrow is likely to come and go with little fanfare; at least as signalled by the White House.
This is the last 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 third part, The Agony and the Ecstasy, take us through the signing of the repeal bill by the President in late December, 2010.
Part I: The Ecstasy and the Agony
Part II: Protests and Handcuffs and Senators, Oh My!
Part III: The Agony and the Ecstasy
DADT Is Dead. A diary by Scott Wooledge
All Servicemembers Are Now Created Equal. Sort Of.
It took only microseconds from the signing of the Don't Ask, Don't Tell repeal bill into law until everyone was wondering how long it would take the Department of Defense to execute its training plan and certify to the President that the military was ready for repeal. Advocates claimed that training was unecessary; this was all a sham concocted by conservative military brass to delay actual repeal as long as feasible, possibly indefinitely. The military was adamant that it was critically important.
President Obama had set the tone when he told Kerry Eleveld
"My strong sense is this is a matter of months... Absolutely not years."
soon after the signing. But how many months? And what about all those servicemembers in the process of being discharged, or who might be investigated in the interrim, or who would still be serving in fear of being discovered?
As it turned out the October 30th, 2010 announcement by the Department of Defense (noted in passing in Part III) -- which said that only the Secretaries of the Army, Navy and Air Force would have the authority to finalize discharges -- was a facade. It was a facade that allowed the administration not to discharge anyone (1), while at the same time not admitting that they were not discharging anyone. Why the administration felt compelled to play what amounted to a silly game, and why the administration felt compelled to continue to argue in court that it needed the authority to discharge when no discharges were contemplated we may or may not ever know. But they did play the game, and they did argue the necessity.
In the early months of 2011, armed with legal motions and replies, the Department of Justice continued to insist in Log Cabin Republicans v United States that DADT was constitutional and that suddenly taking the authority to discharge away or insisting that openly gay recruits be allowed to enlist would wreak irretrievable harm on the military. Even after the DoJ had announced, in late February, that it believed that the Defense of Marriage Act was unconstitutional, that gays and lesbians were entitled to heightened scrutiny, and that it would no longer be defending DOMA in federal court, arguments about the necessity and constitutionality of DADT continued to be made by DoJ lawyers in Log Cabin.
In the Spring of 2011 it became apparent that no one was actually being discharged, and advocates seemed willing to let the military play out its training scenario without giving them too much grief. Press releases that training was going well, that so many hundreds of thousands of troops had completed it, and videos of various training sessions appeared. The military, apparently, was being serious about getting this done, if in its own sweet time. Meanwhile, the plaintiffs in Log Cabin Republicans v United States continued to wait for the Ninth Circuit Court of Appeals to rule on their motion to undo the stay the Ninth itself had imposed in late 2010, in light of DoJ's DOMA announcement.
Finally, on July 6th, 2011, the Ninth Circuit said something. It reinstated Judge Phillips' worldwide ban on Don't Ask, Don't Tell enforcement, basing its decision on the fact that the Department of Justice itself was now claiming that discrimination based on sexual orientation was unconstitutional.
Coincidentally on July 6th the Department of Justice submitted, in Golinksi v Office of Personel Management, what is now known as the Golinski brief, a devastating attack on the Defense of Marriage Act (DOMA) making arguments that the law was unconstitutional and that gays and lesbians should be protected under the 14th amendment. Even though the brief contained a footnote explaining why it did not apply to the military with respect to Don't Ask, Don't Tell, a) no one believed it and b) the world's bullshit meter set a new high.
Many people thought that this was the end. What point would there be for DoJ to appeal the ruling, since the military itself was admitting that certification would be possible in a matter of weeks and the government had essentially attacked its own position via the Golinksi brief? Me, I didn't know what to think. They had already done stranger things. As it turned out, these many people were wrong.
On July 14th the DoJ filed an emergency motion to reinstate DADT, and on July 15th the Ninth Circuit granted it in part -- forbidding discharges but still restricting open gays and lesbians from enlisting or enrolling in the military academies. Enough, it seemed, for the DoJ to save face.
On July 22nd the Rubicon was finally crossed. President Obama, Defense Secretary Panetta, and Admiral Mullen, Chairman of the Joint Chiefs of Staff, signed the certification document as required by the repeal law. In sixty days, on September 20th, the Don't Ask, Don't Tell statute would be no more.
But there was still more to come! The Ninth Circuit Court of Appeals had, some time ago, scheduled oral arguments on the substantitive issue in Log Cabin Republicans v United States: to wit, whether the law was unconstitutional. Since the law was still technically in existence, the hearing would take place as scheduled on September 1st.
Most of the hearing was not, unfortunately, devoted to the issue of constitutionality, but rather to the issue of mootness. Since certification had been signed, and the law would, without doubt, go away on September 20th, debate centered around whether the Ninth Circuit panel should declare the whole lawsuit null and void. Log Cabin Republicans' lawyer argued unpersuasively, but truthfully, that there were constitutional issues that were still unsettled, and redress of past grievances -- such as violations of servicemembers' 1st amendment rights -- still to be dealt with. At least one judge suggested that these matters were best left for subsequent lawsuits by individual servicemembers. I was screaming at him through my terminal, but I only saw the video hours later, so I doubt that he heard me.
As yet we don't know the outcome of the mootness debate -- the Ninth Circuit has been silent -- but most everyone who listened to the hearing agreed that there was little likelihood that they would allow the lawsuit to continue.
And yet even with such a ruling when it comes down from the Ninth the strange tale of DADT will not quite be over!
Three days prior to the hearing, one of the most bizarre of all the legal doings in the matter of DADT began. The same administration which discharged Dan Choi and then invited him to the White House for the signing ceremony is now, some say, going after him in a crazy vendetta -- and no one can figure out why (if this sounds familar from other parts of this saga it should.)
As previewed in Tomorrow Dan Choi Will Stand Trial for His Protest of an Unconstitutional Law, on August 29th, 2011 Dan Choi began standing trial for his November protest at the White House. The other twelve protestors? They had agreed to a plea bargain that would effectively drop the charges and their records would be wiped clean after a short probation. Dan, not willing to say that he had done anything wrong, demanded a trial that might end up costing him a felony conviction and jail time in the name of principle.
The government is not doing itself any favors by continuing to pursue this case, and if they chose to drop the charges everyone, it seems, would be coming out ahead. The Judge has, at various times, hinted to the prosecutors that they should give this up, and the negative publicity in the LGBT community makes no sense politically for the administration. Yet they persist. As things stand now the case is (suprise!) tied up in obscure legal motions having to do writs of mandamus. It could be years before it is settled upon appeal. The administration will continue to be associated with the prosecution of man who many see as a hero.
This is not the only case centering around DADT still making its way through the courts. Another loose end is whether those previously discharged under DADT will be treated with dignity and respect. The DoJ is about to argue otherwise! (Author bangs head against wall).
And what about the title of this piece? Why won't all servicemembers be equal once with Don't Ask, Don't Tell is no more?
One acronym and one word. DOMA, and TRANSGENDER.
DOMA prevents any federal agency from treating same-sex marriages as marriages. You're gay, in the military and married? You want your spouse to have health care benefits? Too bad. You want to live in married on-base housing? Too bad. You want to go with your spouse to attend some kind of married-couples counseling sponsored by the base you work at? Probably too bad. You want your spouse to be notified in case you die fighting in Afghanistan? Not going to happen, at least officially.
Not until DOMA is repealed or declared unconstitutional will these service personnel be truly equal in the eyes of the law. In fact the next battle began long before the one for DADT ended. Lawsuits have been going on for a couple of years now, and it would not be surprising if more were filed specifically having to do with military life after September 20th.
There are at least four DOMA lawsuits in various stages of litigation: Gill, Windsor, Pedersen and Golinski, plus Perry -- the Proposition 8 bearing on marriage equality and not directly related to DOMA. Any of these could have an effect on the status of married gays and lesbians in the military. Gill is the case furthest along, having already been heard and decided (favorably!) at the District Court level with an Appellate hearing scheduled in a few weeks. The others are in various stages of proceedings at the District Court level.
Only when the Supreme Court of the United States finally declares that DOMA is unconstitutional (or, less likely, when Congress repeals it) will the legal battle for true equality finally have been won for LGB's in the military.
DADT repeal also does nothing for transgender military personnel. The T's of LGBT. As far as the military is concerned being transgender, or wanting to change your natal sex, is a psychiatric disorder. Those in such a state are not worthy of serving according to military regulatons and are subject to dismissal.
Only another act of Congress or an entirely new and untested legal battle will win the equality for transgender personnel that LGB's are now inching closer to grasping.
But one step at a time. In a few hours, depending on your timezone
Don't Ask, Don't Tell Will Be No More
I hope you have enjoyed my perspective on its demise. Stay tuned for the countdown on the East Coast.
Footnote:
(1) Ultimately three people ended up being discharged after October 30th, 2010 to the best of my knowledge, each essentially at their own behest.