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Culhane: 'Don't Ask, Don't Tell' and Obama

October 14th, 2010 Leave a comment Go to comments

On Tuesday, federal judge Virginia Phillips issued a permanent (as in, “forever”) injunction against enforcement of the “don’t ask, don’t tell” law. Does this really mean that the discharges will stop? Can a lone judge in California really effect a change of this magnitude?

Yes – with a qualification.

There’s no legal — as opposed to political — reason preventing the judge’s action. Her decision on a question of federal law, absent appeal, holds for the entire nation. After reiterating her judgment that the law violates constitutional protections of fundamental rights, free speech, and the right to petition the government for redress of grievances, the brief order makes clear its reach and effect: There’s a permanent, global injunction against the enforcement of DADT, and an immediate suspension and discontinuance of any proceedings related to the policy.

So the policy is gone, and even those DADT-based investigations or discharges that are in process are to stop.


Before issuing this final ruling, Judge Phillips had solicited input from the government lawyers about the effect of her proposed injunction. But their arguments about the harm of such a ruling failed to persuade her, so the law is now history, unless the Obama Administration appeals. Even in that case, they would have to ask for and be granted a stay (both of which would be quite likely) for the injunction to be lifted.

What to do? This is perhaps the worst-case scenario for Obama: If, as expected, he appeals, he gives the LGBT community and disgusted progressive voters another reason to stay home next month. Yesterday, a Justice Department spokeswoman intoned the rote statement that the department was “reviewing” the decision.

But another statement by Press Secretary Robert Gibbs might have tipped the Administration’s hand: “The president will continue to work as hard as he can to change the law that he believes is fundamentally unfair.”

Obviously, he only has to ”work hard to change the law” if the department appeals.

And late Tuesday, we had another reminder that the President will continue to play this conservatively: DOJ has filed an appeal in the Massachusetts case where a trial judge struck down the portion of the Defense of Marriage Act that refuses federal recognition to same-sex marriages valid under state law.

Should he take advantage of the sixty-day period allowed for appeal, putting off reckoning until after the mid-terms and counting on the lame-duck Senate to pass the repeal measure?

Under ordinary circumstances, this approach might have some promise, but not in this case. The problem is that the repeal measure, even if it passes, isn’t a repeal at all, but the result of a compromise “vote-now-repeal-later-(maybe)” approach. (For the repeal to become effective, a host of actors and institutions, apparently including the local Rotary Club, would have to certify that repeal wouldn’t harm military readiness.)

Even with this “repeal” law, DADT would remain in effect for the time being, so that the issue of whether to appeal Judge Phillips’s ruling would have to be confronted in any case.

Does it pain me to say that Obama has only himself to blame? To an extent, yes, because I still believe that his deepest instincts are grounded in a basic notion of equality.

But too often, those instincts are submerged beneath a cautious political calculus that ends up deferring or defeating the very initiatives he backs. Still no ENDA, no reasonable prospect of DOMA repeal, and now this situation — where even if the Obama DOJ doesn’t appeal, he’ll get, and deserve, only limited and grudging credit.

Well, too bad. That even this flawed measure hasn’t yet gotten through the Senate is nothing short of appalling, and a sad testament to Obama’s inability to bring his own party to heel (as by slapping down Harry Reid’s procedural tricks, which served only to alienate the few moderate Republicans he might otherwise have counted on).

There’s a chilling description of the Obama Administration’s failures to push their favored measures (except health care) through Congress in this week’s New Yorker. As Ryan Lizza reports in the context of the climate change bill, proponents were frustrated by the Administration’s lack of leadership:

“It’s a drum circle,” one Senate aide lamented. “They come by, ‘How are you feeling? Where do you think the votes are? What do you think we should do?’ It’s never ‘Here’s the plan, here’s what we’re doing.’ ”

If I’m a gay or lesbian service member, I’m not coming out yet.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: http://wordinedgewise.org.
  1. DaveW
    October 14th, 2010 at 09:46 | #1

    Nice analysis John. I just think, since clearly his calculus is 100% political, that he should wait until after the midterms to say anything. Then they get two years to recover, and can let the injunction stand.

    If he was truly for equality, instead of being for equality-minded votes, we would not be having this discussion. His employees would not have equated us to incest in official briefs and the easily passable repeals would have been done with better leadership.

    I’m not where you are…deep down this man wants to survive politically, I don’t see deep seated feelings of equality. If they were there, he never could have gone to Jeremiah whatever he is’ church in Chicago. Nobody that believes in equality could fund that kind of rhetoric. And that is just one of many examples.

    Again, I see absolutely no commitment to equality. I actually fail to see what he stands for except staying in power. Its a failure of leadership that I can’t see it. Great orator. Administrator/manager? check those briefs for your answer. Terrible.

    But many of us knew this. elections are popularity contests when they should be job interviews.

  2. October 14th, 2010 at 11:31 | #2

    DaveW: You write an effective, concise brief against the argument that Obama really cares about equality. I base my comment on the fact that wherever it’s been easy to do — in the administrative, regulatory setting, primarily — he’s been very good. And the sense of people within the Administration is that it’s a very gay-friendly environment.
    Of course, I take your point: Whatever he believes, deep-down, should be judged by his actions — all of them. And in that reckoning, it’s hard to argue with your analysis and conclusions.

  3. Tara
    October 14th, 2010 at 12:03 | #3

    I disagree with your article Mr. Culhane.

    Yes President Obama is having trouble with his party not following his lead but that is true with all Presidents. The thing is the fault of not getting the bill pass was and is with the voting population.

    Here it is mid-term elections with the tea-party and every other conservative organization out there banging their drums against the Democrats and the President. Where are we? Why are not the progressive groups out there banging our drums in support of the President and the changes he wants to make.

    The truth is that most of them are at home complaining but doing nothing. This is how we lost the Prop 8 vote in California.

    President Obama has been trying and wants to help us achieve equality but he cannot do it without us. WE have failed in doing our part by backing him and hounding our representatives.

    Mr. Culhane your article encourages the belief that it is all the President’s fault. That he is not accomplish enough but you have failed to take in account the lack of support by our community.

    We have not stepped up to the plate but instead are taking a snooze. When the civil rights movement occured in 1960’s people did not rest but continue to stive and struggle forward through every win and defeat. Us when we win we lose focus and let things slide. This mindset has to change if we are to get anywhere.

  4. October 14th, 2010 at 13:31 | #4

    I think is it very nice of you to respond to comments Professor Culhane only a few of the contributors do it. I hope you are correct in your assumption that deep down Obama wants equality but I am finding it very difficult to swallow. Should he appeal I will lose all hope of Obama helping us with anything.

  5. secrity
    October 14th, 2010 at 14:32 | #5

    Obama has already lost my support and my vote; he has done NOTHING substantive to help gays. He has directed the DOJ to appeal the MA DOMA ruling, and there should be no question about whether he will direct the DOJ to appeal the DADT ruling — he should have already stated that he won’t tell the DOJ to appeal.

  6. October 14th, 2010 at 15:04 | #6

    TARA: Well said!! And Oh so very, very true. Just where IS every Gay brother and sister??and Why are we NOT doing as you so correctly put it?? Prof. culhane needs a great course in LOGIC!! and leave the law to the greedy crooks!

  7. October 14th, 2010 at 15:07 | #7

    I’m afraid you give Obama more credit than I do. In fact, this decision is the perfect political “out” for him – the Court made me do it!! No Republican votes needed.

    But he probably will appeal. In which case, I will be calling everyone I know to see if we can’t get a better progressive leader, such as Howard Dean, to challenge him in the next Presidential election.

    Obama has proven himself to be a coward who has invested more time and political capital in avoiding conflict than he has in standing up for what’s right.

    If he appeals, he becomes the ultimate politician, talking out of both sides of his mouth at the same time: I want DADT gone, but I’m going to send the DOJ in to defend it.

    This is cognitive dissonance at its worst. My poor, aging brain cannot even contain this man’s contradictions at the same time.

    Let’s be honest. We made a mistake. We supported him passionately as the “Fierce Advocate” of LGBT rights. We got snowed, we got used and now it’s time to show him that it’s not nice to fool with us and fool us.

    Howard Dean for President! At least he, we know, has always been on our side.

  8. October 14th, 2010 at 15:11 | #8

    Alan Arthur Katz: I have to correct the historical record here. Howard Dean was firmly and consistently opposed to marriage equality when he was governor of VT. He did support the civil union compromise that was ultimately enacted, and that took some courage. But on that issue, he was no more evolved than Obama — who also supports civil unions, but not marriage equality.
    It’s very hard for politicians to do the right thing. It’s our job to hold them accountable when they fail to do so. And I think that Obama has heard from the LGBT community: loudly, consistently, and sometimes rudely (as by being interrupted at rallies). So I don’t think the criticism by Tara and echoed by Dr. Peter really sticks.

  9. TigerTzu
    October 14th, 2010 at 15:25 | #9

    I think the Tara is a troll of the DNC looking to save the Dems ass any way possible. We elected a Dem President, Senate and Congress. We have been very vocal. Her self-riteous attitude is based on a fallacy, namely that we are in the majority and can force our representatives to do the right thing.

    That being said, from now on I vote Republican. The Dems merely use us to get elected then throw us under a bus. Obama fooled you into believing changed had come. He fooled you so well you overlooked his policy of “separate but equal”. At least with the Repubs we know we are hated and we know they will do everything they can to set our rights back 100 years. On the bright side, maybe once things get bad enough, we will finally rise up and TAKE what is ours by virtue of the Constitution. That is the only way I will ever see any hope of equality in my lifetime because I don’t have another 150 years to live to wait for the Dems to do the right thing. Our rights will only advance when we give people a reason to fear us, and it will take the Repubs to remove this simpering, ass-kissing, please-sir-may-I-have-another attitude that has infected us.

  10. October 14th, 2010 at 20:19 | #10

    While I cannot, as TigerTzu said, vote Republican, I am seriously considering changing my affiliation to Republican. It is clear we cannot rely on Democrats for change. We must change the party in power…Republicans. The only way to do that is from the inside. If enough of us change affiliation we can vote for the more moderate Republicans and move that party to the left a bit.

  11. mscottdodd
    October 14th, 2010 at 22:26 | #11

    I am saddened by this whole mess. My partner, a decorated Green Beret who served in Vietnam, devoted incredible hours to getting President Obama elected. Because he is now working on a local Democrat’s campaign (someone the LGBT community can feel confident supporting), he keeps his frustrations with the administration to himself. I find that I avoid talking about my own anger because I do not want to add to his problems right now. I am fortunate that I can enthusiastically vote for Democrats in all our local and state elections and for my US senator and representative as well. I will not vote for Mr. Obama again, however, unless I see a real turnaround on LGBT issues before the next election. I will not vote for a Republican, because that would be a vote FOR the greater of two evils. But I have decided never to vote for an evil again, even if it be the lesser of two. I vote only for those who vote for full equality.

  12. randy
    October 14th, 2010 at 22:28 | #12

    Suppose LGBTs come out now, as DADT is declared unconstitutional worldwide, and yet they get discharged as the appeal drags on. Suppose further that Obama’s appeal fails, and we win. Would these discharged servicemembers not be entitled to reinstatement, including back-pay, and perhaps damages as well? DADT doesn’t “become” unconstitutional. It was ALWAYS unconstitutional. I hope we’re vigorous in getting this for them. Defeating DADT is just the first step. Setting things right for discharged servicemembers comes next.

    For two years, time has been wasted while Obama says one thing and does another. People joined up, counting on him to do what he said, and he’s done nothing but drag this out.

    I hope Democrats nominate someone else for president in 2012. Obama is un-re-electable, because of things like this.

    And did you see how he laughed at that woman who told him she was exhausted defending him? He disgusts me.

  13. October 14th, 2010 at 22:49 | #13

    randy: Things do “suddenly” become unconstitutional. Consider Lawrence v. Texas (statute outlawing same-sex intimacy was declared invalid, overruling Bowers v. Hardwick, which held to the contrary). That’s how constitutional law gets made.
    Your other question is an interesting procedure one: What would happen to discharges that took place during the pendency of the appeal if the S Ct (or the Ninth Circuit, if the case ends there) decided that the trial judge was right? The short answer is that the Supremes have discretion, but the more accurate one is that, if Judge Phillips’s decision is stayed, then the policy continues in effect until finally ruled unconstitutional by the highest court.

  14. michaelandfred
    October 19th, 2010 at 09:01 | #14

    I agree Dave. Popularity contest versus job interview. It was all there to see if people had just been paying attention to all the information that was out there instead of screaming like they were at a Johnas Brothers concert. A new face, a recycled MLK orating style and a catchy slogan. It seems to be the Democratic version of “He seems like someone you could sit and have a beer with.” It was all there to see, but nobody wanted to look.

    Such a wasted opportunity.

  1. October 18th, 2010 at 11:42 | #1