Don't Ask, Don't Tell Politics Get Trickier As Senate Vote Looms, Says Professor Katherine Franke

Defense Secretary Robert Gates has said he wants the Senate to repeal the “don’t ask, don’t tell” policy for gays serving in the military.


New York, Nov. 9, 2010—Defense Secretary Robert Gates has said he wants the Senate to repeal the “don’t ask, don’t tell” policy for gays serving in the military. But such a vote, even if it fails, may be part of a larger administration strategy to repeal the policy, says the director of the Center for Gender and Sexuality Law at Columbia Law School.
What Congressional democrats and the Obama Administration may be up to, says Katherine Franke, is high-stakes politics, but it might work. The Pentagon’s review of the ongoing viability of DADT is slated to be released Dec. 1. Presumably it will recommend repeal and will set out timely procedures and training for doing so. Immediately thereafter the repeal vote could come up in the lame-duck Congress and, most likely, fail.
“Having given the Pentagon the time they needed to think through the nuts and bolts of repeal, and having exhausted Congressional avenues for the change in the law,” commented Franke, “the Obama Justice Department would be able to change their strategy in the legal challenges to DADT.”
“The Justice Department is now appealing a lower court finding that don’t ask, don’t tell is unconstitutional on the grounds that the Pentagon needs time to figure out how to train military personnel on the inclusion of openly gay people in the military,” Franke said. “But by December they will have had the time they need.”
The lawsuit challenging the constitutionality of DADT was brought by the Log Cabin Republicans, a gay-rights group, which on Friday asked the U.S. Supreme Court to allow gays and lesbians to serve openly while the case was being appealed.
“The Justice Department could go to the Ninth Circuit and the Log Cabin Republicans and represent to the court that it will no longer defend DADT,” said Franke, adding that the government could then let the court fashion a remedy that will probably resemble the Pentagon’s recommendations.
“That is likely since the court’s order lifting the lower court stay pointed to the importance of deference to military judgment,” Franke said. “This way, the administration will have exhausted legislative repeal and deflects political flak by letting the court have the final say.
“It’s not a bad strategy, and maybe it’s the strategy they’ve been planning all along.”
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