Constitutional Law, Military, Politics, Society

Don’t Ask, Don’t Tell Finally Repealed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

72 thoughts on “Don’t Ask, Don’t Tell Finally Repealed”

  2. Here is what I am saying. This law corrects one injustice contained within another injustice. Thus it was unjust that gay men and women were unable to serve openly in the military and this law should have been repealed as an ethical and legal matter. This may be said to have advanced the cause of civil rights for lesbian and gay people (depending on how the executive branch implements it).

    Now we must look at the wider context of this situation. Both Congressional Democrats and President Obama have cynically manipulated all of our population for votes and money. The moneyed gay community has been an important contributor to their campaigns and they had been disappointing them for some time with an anti-gay agenda of their own. So “repealing” DADT (we don’t really know how that will work out yet) served to cynically motivate donors by linking the ending of discrimination with a way to hold a campaign rally and get more money.

    Bringing our focus out to an even wider angle shows that the injustice being rectified takes place within a hideous injustice that neither the Congress nor the President have any intention of rectifying–that is, our illegal wars, occupations, torture, extrajudicial killings, indefinite detention, failure to take care of our veterans after death/injury, the killing of civilians, etc. That is why I cannot consider this a glorious day for civil rights. This was a cynical manipulation by our political class to get some mileage out of one section of their donor base. It was not an heartfelt redress of injustice. It was also used to glorify actions which are themeselves illegal and immoral, namely– everything to do with our military “war on terror”.

    These ideas are not mutually exclusive, they were put together on purpose to manipulate our public. So I say, yes we can get our troops, all of them, gay and straight, the hell out of these fucking wars. These wars are illegal. These wars destroy lives.

  4. Speaking of planting posters on blogs to steer opinion:

    If anyone thinks this repeal is a good thing, think again. The fact that wars are still going on completely nullifies any advantage to those gays in the military, and especially those who will now join the military, because that will only help keep those wars going. That’s probably the real purpose of this repeal – not enough volunteers.

    Therefore, this repeal is not a triumph of civil rights but simply a way to pry some more money (and votes) from the gay community while also gaining more volunteers for the war machine.

    If the gay community doesn’t see it that way, they are simply misinformed and/or misguided.

    Have I got it right, Jill?

  7. corporal klinger ain’t happy
    [youtube=http://www.youtube.com/watch?v=x7TXTt1sEgg&fs=1&hl=en_US]

  10. Jill, I completely agree with your views on American imperialism. Nonetheless, I view the abolition of DADT to be of historic significance in the field of civil rights.

    You will recall that the long battle for equal rights for blacks did not get kick-started until Pres. Truman ordered the integration of the armed forces. This beginning ultimately led to the legislative and judicial destruction of legal apartheid in this country.

    I also believe it was wise of Pres. Obama to force the issue in Congress rather than waiting for the courts to deal with it. That gives repeal greater authenticity, and protects the right-wing’s favorite whipping-boy. It will also accelerate the passage of future legislation to afford gays complete legal and social equality.

  12. Elaine,

    I think you make a very good point. We are ill served by our media. The M$M sees its job as cheerleading for the benefit of the oligarchy. This is done in numerous ways. Celebrity newz is a common form of propaganda. It is distraction. Planting talking heads whose job it is to repeat the corporate/administration’s talking points is another. Keeping information that would counter these talking points from entering the public’s consciousness is yet another technique. Planting posters on blogs to steer opinion towards the “correct” thinking is also used. Of course, completely ignoring major situations, as you pointed out in your post, has also been quite effective.

    Here’s a different way of looking at what would have been a true civil rights victory. It is written by a poster on Common Dreams: ” Randy G December 22nd, 2010 12:29 pm

    It’s a huge defeat for common sense and decency that homosexuals will now be allowed to serve openly in the military.

    In the interests of our nation and the world, it would have been much better to keep the ban in place and even extend it to heterosexuals.

    Now that would have been progress.”

  13. Credit where Credit is due:

    Good on you Legislative Branch and Judicial branches.

    We’ll see how the Executive branch does it’s job.

  15. Jill: “But I refuse to call this a glorious success for justice.”

    ——–
    Justice would be full civil rights. That’s not the way it was discussed though, as a matter of civil rights. It was discussed as a matter of tit for tat, almost it seemed to me, as an issue specific to troops and certain, compartmentalized expectations and dispensations reserved for the military. I did hear the words “civil rights” come out a couple of times by Rachael Maddow and maybe Al Sharpton on one of the MSNBC shows (after some prompting) but the more broad issue of universal civil rights didn’t seem to come into the picture in the political dialogue or the MSM at all.

  16. Otteray Scribe: “It was about time this despicable law was repealed. … For the occasion of the DADT repeal, I wrote a diary on Daily Kos last night about military homophobia and the ultimate consequence of this kind of prejudice.”
    ——

    An excellent diary well worth a trip to read it. Tragic how people’s lives are squandered and discarded over nothing, simply nothing.

    http://www.dailykos.com/storyonly/2010/12/21/930794/-Hector-the-Hero:-a-cautionary-tale-about-military-homophobia

  18. “The repeal will certainly help in the recognition of greater constitutional protections for gays and lesbians.”

    *********************

    The repeal will certainly help in the recognition of greater constitutional protections for gays and lesbians Americans and those who aspire to be.

  20. Methinks we may need to solve the enigma of what allows a person to tolerate war in order to solve the enigma of what allows a person to participate in war. When there is no person who will either tolerate, or participate in, war, perhaps war will forget that it exists, while remembering what it did when it existed.

    I, for one, neither tolerate nor participate in war. It is for that reason, and others, that I decline to hurl epithets at people, myself included.

    Ideas, notions, constructs, fantasies, delusions, and the like are not alive, have no life to lose, and cannot be hurt because they are purely imaginary.

    People who have ideas, notions, constructs, fantasies, delusions, and the like are alive, have life to lose, and are hurt when abused.

    Sticks and stones may break my bones, but only words can totally destroy me.

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