In yet another embarrassing court defeat for opponents of gay rights, yesterday a federal judge in California ordered the Obama administration to stop enforcing "don't ask, don't tell," the ban on openly gay service members in the military.
Over the past year, the administration has weathered blistering criticism from gay-rights groups not only for its failure to overturn "don't ask, don't tell" and the Defense of Marriage Act (DOMA) -- the 1996 law that prohibits the federal government from recognizing same-sex marriages performed in the states -- but for defending these discriminatory laws in court. Indeed, as LGBT advocates began speculating whether the administration would appeal yesterday's ruling, the Department of Justice announced it would challenge another federal court ruling in Massachusetts that found DOMA unconstitutional.
The decision on gays in the military represents a sharp turning point: It takes effect immediately. In the DOMA suit, the presiding judge allotted time for an appeal. But as of yesterday, "don't ask, don't tell" is history, and it's only coming back if the administration asks a higher court to stay the decision. President Barack Obama, who put gay-rights issues on the backburner and left advocates to fight for their rights in court, suddenly finds himself in the awkward position of being the prime defender of "don't ask, don't tell." What could have been a political coup is now a liability that has put the president on the losing side of gay-rights issues.
It's a bed Obama made for himself.
At any point during the past two years, Obama could have signed an executive order halting the enforcement of the discriminatory law until it was overturned by Congress. Instead, he sought to appease Republicans and members of the military establishment by commissioning yet another study that will invariably show -- as did the $1.3 million RAND Corporation report paid for by the Department of Defense in 1993 -- that allowing gays to serve openly in the military is not a threat to national security. While he threw in a line or two about the repeal in the State of the Union address and told the LGBT lobbying group Human Rights Campaign at its annual fundraiser that he wanted to see the policy repealed, there's been no concerted effort from the White House to pressure legislators.
Obama isn't just lagging behind the courts on this issue. He's also trailing far behind public opinion. Almost 80 percent of Americans think the law should be repealed; if the president's failure to push through legislation supported by a vast majority of the public isn't an indictment of his ability to lead, then it's at least an indication of the administration's priorities.
Members of the administration have admitted that gay-rights issues have taken a back seat, and indeed, it seems reasonable enough to ask the gay community to be patient while Obama fixes the economy and health care. But here's the thing with civil rights: Whether you think there are more pressing things to do depends on whether you take civil rights seriously. Civil rights aren't perks that you deal with once you get all the practical stuff in order; they are the practical stuff -- they allow all Americans to participate fully in tackling collective problems.
The Justice Department's ardent defense of DOMA and "don't ask, don't tell" have only added insult to injury. The administration's standard justification for defending discriminatory laws in court has been that it's Congress' job to repeal laws; the Justice Department is tasked with defending the laws on the books. But as John Aravosis and Joe Sudbay at AmericaBlog have pointed out, that's not quite the case. Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush all declined to enforce federal laws that they found beyond the pale. While the Justice Department traditionally sticks up for Congress in court, it needn't do so if it believes the statute in question is unconstitutional -- and courts have explicitly found both DOMA and "don't ask, don't tell" to be just that. What's more, the administration's court briefings on behalf of the discriminatory laws have relied on the most antediluvian justifications for anti-gay discrimination, comparing homosexuality to pedophilia and incest. This is the sort of argument you'd expect to hear from raging anti-gay groups like the Family Research Council, not from a president who was elected with strong support from the LGBT community.
Obama is operating as if it's still 1993, when President Clinton pushed to allow gays to serve in the military openly but ultimately settled on "don't ask, don't tell." Times have changed: Then, most Americans supported the law; today, most oppose it. Americans' views on recognizing gay unions have also evolved. By not only dragging his feet amid dramatic changes in the social and legal landscape for gay rights but also using the Justice Department to prop up discriminatory laws, the "change" president has stopped being a passive bystander in the push for gay rights. He's become the obstacle-in-chief.
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