We have a long fight ahead of us before certification of Don't Ask, Don't Tell repeal is complete and the regulations are implemented, but some states aren't wasting time before they try to undo the repeal. It has been speculated that Republicans wouldn't dare touch repeal, even out of spite for gay and lesbian servicemembers. We are told that, for example, a President Palin could "in theory" write an executive order to ban gays from the military, but that no Republican is that stupid.
Now, two days after DADT is repealed, Republicans are showing how far they're willing to go:
Meanwhile, despite a number of polls indicating widespread public support for the repeal of "Don't Ask," some Republican congressmen have already vowed to fight it.
Republican Virginia Del. Bob Marshall says he is drafting legislation that would ban gays from serving in the Virginia National Guard. "This policy [to allow gays to serve openly] will weaken military recruitment and retention, and will increase pressure for a military draft,'' he said in explaining the effort.
Marshall also lambasted the integration of openly gay men and women into the military as a "social experiment with our troops and our national security."
"After 232 years of prohibiting active, open homosexuals from enlisting in our military, President Obama and a majority in Congress are conducting a social experiment with our troops and our national security," Marshall said. "In countries where religions and cultures find homosexual acts immoral, the Obama administration's repeal policy will work to the detriment of all American troops in securing local cooperation with our nation's foreign policy goals."
I'm not a lawyer but the arguments for both sides seem to be reasonable. The equality side says that the National Guard is subject to federal laws, while the other side says:
Marshall, who is considering running for U.S. Senate in 2012, is one of the House's most conservative members. He said Article 1, Section 8, Clause 16 of the Constitution gives Virginia the authority to uphold the ban by "reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
"The Constitution never would have been ratified if states were not reserved unqualified control of the militia, now called the National Guard," he said.
This is why a lot of us LGBT folks are trying to urge everyone to stay vigilant. Even if this doesn't pass constitutional muster, there will be another attack, then another. Congress barely passed this law, as a last ditch Hail Mary effort. Don't expect its opponents to just stand by and let it happen. This war will be fought long after the regulations are in place.
During the 60 day waiting period for implementation, Congress can ask for more hearings on the repeal and its effects on morale and cohesion. They can bring out its detractors again and again so that the American people lose faith in the repeal. And without a nondiscrimination provision in the law, if the tide turns against us, there's nothing preventing the military from backing off.
And there's nothing preventing President Palin or Romney from writing an executive order banning gays from serving. See, the reason that President Obama could only end discharges by executive order and he couldn't fully end DADT by an order was that the policy was codified into law. Well, once repeal is certified, it again becomes an administrative policy, no longer codified into law. Congress will not be able to do anything. So at that point, any president can administratively reinforce the gay ban.
I'm not arguing that the sky is falling or that we're all doomed. I'm only saying that this is proof that there is a real need to stay vigilant and for people here to start tolerating LGBT criticism of the way this policy is being handled, until it is finally and completely done away with, and until a future Republican president shows that they aren't going to ban gays again. There is a real need for us to work together on this to keep our efforts going, or this accomplishment could fade due to Republicans' bigotry. And staying involved will necessarily mean that we will need to point out the flaws in the handling of this, and the regulations and implementations, and we will need to shoot down any possible trial balloon which might lead us to believe a bad policy will be put in its place.