Don’t Ask, Don’t Tell Finally Repealed

In one of the great civil liberties victories of our age, President Barack Obama this morning signed the formal repeal of the Don’t Ask, Don’t Tell — an obnoxious policy of discrimination put into effect under President Bill Clinton. At the time, many of us criticized Clinton for not having the courage to reject discrimination against gays and lesbians — even if we lost the fight on principle. Instead, we have had this insidious and hypocritical policy in place — resulting in the discharge or rejections of thousands of brave citizens. It is now relegated to the dustbin of history with the other discriminatory policies once embraced by our nation.

The battle, however, is not over. Under the DADT policy, servicemembers suspected of being gay were often harassed but could not file complaints. Now, they can. The question will be how the military enforces protections against harassment or hostile work conditions for gays and lesbians. The Obama Administration has two year to put such protections in place — a key challenge since the next Administration may not be as supportive of such rights.

Another challenge could come from the National Guard. Historically, the National Guard was the successor to the militias formed at the beginning of our Republic. They were created as state organizations. With the Vietnam War, the U.S. Army assumed greater control over the state units. Certainly when deployed, they are squarely subject to such policies. Some politicians, however, may try to reassert state authority in preserving DADT on the state level. The federal government has the stronger legal hand under current laws and precedent but it could force a reevaluation on the relative lines of authority between the states and federal government.

The implication for future litigation may be subtle. Notably, the Administration struggled to avoid making this repeal a recognition of constitutional protections for gays and lesbians. The Administration in court fought against claims that sexual orientation should be given the same protections as a category of discrimination as race, religion or even gender. Indeed, in court, the Administration argued to preserve the policy under the claim that gays and lesbians were a danger to unit cohesion.

In the repeal, the Administration largely focused on the sacrifice of these brave men and women — as well as rejecting the discipline and unit cohesion theory. It steadfastly avoided supporting claims that gays and lesbians are entitled to the high level of scrutiny afforded race or the intermediate scrutiny afforded gender.

The repeal will certainly help in the recognition of greater constitutional protections for gays and lesbians. The Supreme Court is a cautious and deliberative institution. It took small steps before accepting a higher level of scrutiny for gender. The repeal puts gays and lesbians on the same legal trajectory in greater recognition of their rights.

This is a wonderful day for civil libertarians. Despite our criticism of Obama for his government’s arguments in federal court, it is also a great victory of him and his legacy. More importantly, it is a great victory for members of Congress — including Republicans who stepped forward to support civil liberties.

Jonathan Turley

Source: LA Times