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March 31, 2009

Obama administration hits pause on the repeal DADT button

Given the debacle that led to Don't Ask Don't Tell at the beginning of the Clinton administration, I don't really blame Obama for wanting to prioritize other things first, like taking over the auto industry. The White House, the Justice Department and Congress all seem to have put DADT repeal deep in the file marked "after the 2010 midterms."

SecDef Gates remarked as much on Sunday, when he told a reporter that

Any change in the policy would require a change in the law. We will follow that law whatever it is. That dialog though has really not progressed very far at this point in the administration. I think the President and I feel like we've got a lot on our plates right now and let's push that one down the road a little bit.

Meanwhile, the two lawsuits on a possible Supreme Court track have also been slowed down. In one, Witt v Air Force, the ACLU of Washington won a ruling that the Defense Department had to prove actual harm to unit cohesion would follow absent discharge of a 19-year veteran Air Force nurse. (See analysis here.) The Solicitor General's office originally had until April 3 to decide whether to seek Supreme Court review or let the case go back to the district court and attempt to make the required showing (or try to settle it). Now, at the SG's request, their deadline has been extended (for the second time) until May 3.

That's three days before the same office must respond to a cert petition filed by James Pietrangelo, who together with 10 other plaintiffs, sued in the First Circuit to overturn DADT.  (The SG's office also got an extension of time in this case as well.) The wrinkle in that case is that SLDN, who originally represented all the plaintiffs, opposed the cert petition, and filed its own statement asking the Supreme Court to defer review of DADT pending further proceedings in Witt and attempts in Congress to repeal the policy.

I doubt that the SG will get any additional deadline extensions, so in the first week of May, we'll know how the White House will weigh in vis-a-vis the courts.

Witt is the one to watch. There is no reason for the SG to do anything in the other case but oppose cert and let the the First Circuit case that upheld DADT stand, especially since that's what even the lgbt advocacy groups want. But in Witt, the administration has to decide whether to seek review of a decision they lost. If they do, this Supreme Court will almost certainly grant cert and reverse the Witt decision, given the current state of precedent. But since that decision does not hold the policy facially invalid, DoJ could choose another path. Whether they do will be the acid test - the first - of where this administration is going to stand on lgbt rights.

Given what a basketball fan the big O is, it shouldn't be a surprise that he knows how to run a four-corner stall when he wants to.  Meanwhile, public opinion has moved, even if the politicos haven't. According to Pew Foundation polls, a 60 per cent majority of Americans had figured out roughly four years ago that DADT was a loser, albeit with the typical splits among social groups:

"Republicans are divided over this proposal: 501-3 a majority of conservative Republicans (57%) oppose allowing gays and lesbians to openly serve in the military compared with 37% who favor letting them serve. By about two-to-one (62% to 30%), moderate and liberal Republicans favor permitting gays and lesbians to serve in the armed forces.

"Eight-in-ten liberal Democrats (79%) support allowing gays to serve in the military while just 18% oppose the proposal. A smaller majority of conservative and moderate Democrats (60%) favors permitting gays to serve openly while 29% are opposed.

"More women than men favor letting gays and lesbians serve in the military (66% vs. 52%). There also are large differences among religious groups in views on this issue. By about five-to-one (77% to 15%), the religiously unaffiliated favor allowing gays to serve; smaller majorities of white Catholics (65%) and white mainline Protestants (62%) express this view. By comparison, 38% of white evangelical Protestants support allowing gays to serve openly in the armed forces while 55% are opposed."

When will the beltway boys catch up?

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