Who Cares About LGBT Workers?

The Employment Non-Discrimination Act would prohibit employers from discriminating on the basis of sexual orientation or gender identity. ENDA has been introduced in Congress multiple times, but it has never passed. While federal law prohibits discrimination on the basis of sex, race, and other categories, it does not address sexual orientation or gender identity. Furthermore, only a handful of state law prohibit employment discrimination on the basis of gender identity and sexual orientation. In most states, such discrimination is perfectly legal.

Although LGBT workers remain vulnerable to discrimination across the nation, ENDA has not received much attention from the media and from many groups that advocate for LGBT rights. Instead, same-sex marriage and the repeal of Don't Ask, Don't Tell have occupied most of the recent headlines and have dominated the contemporary advocacy of LGBT social movement organizations.

While supporters of same-sex marriage often point to the economic benefits associated with marriage, ENDA would also potentially improve the economic situation of LGBT individuals by reducing their exposure to workplace discrimination. Furthermore, DADT is a classic example of employment discrimination. But, while DADT only focuses on military service members, ENDA would end discrimination on the basis of sexual orientation and gender identity among most employers nationwide. Logically, if same-sex marriage and the repeal of DADT are valuable elements of LGBT rights, then ENDA is equally (or even possibly more) valuable. Nevertheless, it remains on the back burner.

LGBT People and Employment

Two recent studies demonstrate the importance of ENDA to LGBT rights. Both of these studies report the experiences with discrimination of LGBT. The first study, released by the Center for Work Life Policy, shows that 48% of self-identified LGBT college educated professionals remain closeted in the workplace. During an interview with NPR, Karent Sumberg, an economist who conducted the research, stated that most of the closeted individuals expressed fear of career reprisals as the reason why they hid their sexual orientation and gender identity.

In addition, the Williams Institute, a research center on sexual orientation and gender identity at UCLA, recently released a study which concludes that about one-fourth of LGB (not "T") workers report experiencing job discrimination or harassment based on sexual orientation in the past year. Among transgender individuals, the number was a staggering 78%. The Williams Institute, like the Center for Work Life Policy, also concludes that significant numbers of LGBT individuals remain closeted at work. Furthermore, the study reports the findings of prior studies (on this issue, the work of economist Lee Badgett is the most prolific), which demonstrate that LGBT individuals tend to earn less and face greater rates of unemployment than similarly situated heterosexual and gender-conforming individuals.

Why So Little Attention on ENDA?

Despite this research, most of the nation's discussion of LGBT rights has focused on DADT and same-sex marriage. The impact of workplace discrimination, however, is very wide ranging, and it undoubtedly affects poor individuals, women and persons of color in the LGBT population even more dramatically. With all of this evidence, the lack of attention to ENDA is both perplexing and disturbing.

If employment issues are so important to LGBT individuals, why do social movement organizations that advocate LGBT rights spend so much of their time on marriage and military concerns? It is hard to document the reasons, but the following arguments present potential explanations.

First, marriage and the military provide symbolic value in US culture. If LGBT people obtain access to these institutions, advocates believe (rightfully or wrongfully) that they will have shifted the very terrain of LGBT rights discourse. Some commentators, like Andrew Sullivan, have argued that this would complete the entire mission of LGBT equality (in his book Virtually Normal).

The lack of attention to employment discrimination could also result because people who dominate mainstream LGBT social movement organizations live in jurisdictions that prohibit sexual orientation and gender identity discrimination by employers. Because they are not vulnerable in their own workplaces, this issue may seem less important to them.

Furthermore, as LGBT critics have long observed, many of the people who direct the advocacy of LGBT social movement organizations have relative privilege in society (based on gender, race and class). As a result, they do not have to worry about job losses as much as more vulnerable persons within the population of LGBT individuals.

Although the foregoing arguments might explain the relatively lower priority given to ENDA among some LGBT social movement organizations, they cannot excuse reducing ENDA to obscurity. Class issues matter for LGBT individuals. Economic concerns exist outside of marriage. And job security is a concern for civilian LGBT workers. Based on the most recent research and the unprotected status of LGBT workers in most states, the passage of ENDA should receive far more attention from the media and from LGBT social movement organizations.

DADT: Senate Republicans Hold Civil Rights Over A Barrel

Senate Republicans have decided to hold civil rights over a barrel. Senate Minority Leader Mitch McConnell has said that Republicans will not allow a vote on the repeal of Don't Ask, Don't Tell until they reach a consensus with Democrats over the Bush tax cuts. Republicans favor extending all of the cuts, which have exacerbated the federal budget deficit. Most Democrats, however, favor allowing the cuts for the highest income owners to expire.

Recently, Senators Scott Brown and Susan Collins, two moderate Republicans, have expressed support for repealing DADT. While Brown's statement does not reference a tax deal, Collins explicitly ties her support for a repeal of DADT to a resolution of the tax issue.

The Republicans are simply engaging in smart political bargaining. Democrats know that the DADT repeal must take place, if at all, before Republicans assume control of the House next year. Republicans are using the DADT issue to gain support for their tax plan.

Good politics, however, also requires parties to frame the terms of the debate. Democrats should continue working on the tax issue, but they should also call out Republicans for threatening civil rights in order to provide handouts to wealthy Americans.

Repealing DADT is a cost-free measure. It is unrelated to tax policy. Repealing DADT will end a policy of irrational and unfair discrimination by the national government. Many Republicans support the ban because they or their constituents oppose equal protection for gays and lesbians. Democrats should not allow their bigotry to go unrecognized in these debates.

Senator Scott Brown Backs DADT Repeal

US Senator Scott Brown (R-Mass), has released an official statement that announces his support for the repeal of Don't Ask, Don't Tell. Although Senate Minority Leader Mitch McConnell says that Republicans will oppose lifting DADT until the Democrats accept their demands on the Bush tax cuts, Brown's statement suggests that moderate Republicans might vote in favor of repeal despite McConnell's threat.

If repeal does not take place before the Republicans assume control in the House in 2011, then DADT will likely remain law for the indefinite future. Even if repeal soon takes place, the Department of Defense will undoubtedly have the authority to determine the timeline and substance of changes to the formal policy. These details will require immense scrutiny from DADT opponents.

Washington Post blogger Greg Sargent initially reported Brown's position on DADT, along with a copy of the his formal statement. New York Magazine, however, wins the prize for the best headline regarding this news item: "Scott Brown Does Not Care If You’re Gay If You’re Willing to Get Blown Up for America."

Colin Powell Tells GLBT Activists Not to Press Congress on DADT

Colin Powell warns GLBT activists not to press Congress to repeal Don't Ask, Don't Tell. Even though President Obama and Secretary of Defense Robert Gates oppose the ban, Powell says that he wants the "study" of this issue to continue. He also opposes litigation challenging the ban. Unless Congress repeals the statute before Republicans take over the House, the discriminatory measure will likely remain in place for a long period of time, absent a judicial ruling enjoining its enforcement.

Ironically, Powell himself has embraced changing course on this issue in extremely measured comments. Powell, however, played a great role in crafting DADT. President Clinton promised to lift the ban, but military leaders -- including Powell -- opposed the decision. When Democrats cheered Powell's endorsement of President Obama, I questioned this stance, given his role in President Bush's unnecessary invasion of Iraq and his support for DADT. Powell's current stance would virtually ensure that the ban remain in place.

DADT Emergency Stay: Analyzing the Law and Politics

The US Court of Appeals for the Ninth Circuit has issued an "emergency stay" of a US District Court ruling that enjoins enforcement of Don't Ask, Don't Tell. The stay is only temporary, and it maintains the status quo until the court can fully review the issues raised by the government's request.

Legal Issues
The legal issues related to this litigation combine many of my teaching and research specialities (e.g., Constitutional Law, LGBT rights, and Remedies). I have read all of the legal papers submitted in the case related to the stay (located on the Ninth Circuit website).

The government makes some valid points in its motion for a stay. Namely, an abundance of Supreme Court precedent dictates that courts must display deference to Congress when it regulates military affairs. The government argues that the District Court failed to show proper deference when it issued the injunction.

Some of the government's arguments, however, are very flawed. For example, the government continues to use the dramatic label "worldwide injunction" to describe the judge's order. That label is geared to catch the attention of the 24-hour news racket, but it has very little legal value.

The lower court's injunction properly enjoined the government from enforcing a statute that it had already determined was unconstitutional on its face. The only reason why the injunction is "worldwide" is because the military has a worldwide presence. Nothing is gained from making dramatic -- but baseless -- legal arguments.

Furthermore, the government contends that the injunction should only apply to the plaintiffs and not to all gays and lesbians currently in or who seek admission to the military. This argument is also flawed.

The District Court held that the law on its face violates the Constitution. While this conclusion is susceptible to reversal, once a court determines that a law is "facially" unconstitutional, it can enjoin enforcement of that law altogether. If, on the other hand, the court had only decided that the law was unconstitutional "as applied" to the plaintiff in this litigation (i.e., the Log Cabin Club), then a more limited injunction would have been appropriate.

Political Issues
The case is undoubtedly a political nightmare to Democrats. During his presidential campaign, Barack Obama described himself as a "fierce" advocate for LGBT rights. He has also repeatedly said that he opposes DADT. Nonetheless, his administration has defended the statute and has now obtained a temporary stay of a judicial order that bans enforcement of a law he claims to oppose.

Dan Choi -- a former member of the military who was discharged because he is gay -- was on the news circuit this morning expressing anger over the Obama administration's decision to pursue an appeal in the litigation. Choi also stated that he would not vote for Obama in 2012.

It is likely that many other LGBT rights advocates will express similar disdain for Obama and the Democrats. But Obama has clearly chosen to align himself with conservative interests on this subject, even as he attempts to support gay rights. He is not the first (and probably will not be the last) president to triangulate on this matter.

Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.

Washington Post Columnist "Angry" With Injunction Banning DADT

Washington Post columnist Jonathan Capehart is "angry" with federal judge Victoria Phillips's order that enjoins the military from enforcing Don't Ask, Don't Tell. Although Capehart agrees with the "fairness" of the ruling, he believes that Congress should repeal the statute:

[T]his ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.

It is not entirely clear whether Capehart is simply angry that Congress "failed to act" or whether he believes that the court should have waited for Congress to act. If Capehart is angry with Congress alone, then I agree with his position.

If Capehart, however, believes that the court should have waited for Congress to act, then I must dissent from this position. People have made similar arguments in other contexts. For example, conservatives, including members of the Supreme Court, have argued that the Supreme Court should have declined to find a constitutional right to terminate a pregnancy in Roe v. Wade. At the time, conservatives argued that the democratic process -- not courts -- should resolve the matter. Similarly, conservatives have criticized court rulings that invalidate laws banning same-sex marriage, and they have expressed a preference for legislative action instead.

Judge Phillips, however, did not "repeal" DADT. Instead, she enforced the Constitution. Generally, judges should not wait for lawmakers to act before they remedy violations of the law. This argument is even more compelling when the same legislature (Congress) enacted the unconstitutional law in the first place. I commend the judge's ruling -- even though I think parts of it are subject to criticism, if not reversal. Congress has delayed justice in this area far too long.

Federal Judge Enjoins DADT, But Ruling Not Flawless

A federal judge in California has declared Don't Ask, Don't Tell unconstitutional and enjoined enforcement of the anti-gay policy. The judge held that the policy violates the Due Process and First Amendment rights of gays and lesbians. Both the opinion and the injunction are available online.

I have read the injunction and the 86-page opinion. Although I agree that DADT is unconstitutional (and homophobic), the judge's ruling is not without weaknesses. There are three elements to the decision that could result in a reversal.

First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.

Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.

The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.

The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.

There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.

In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.

Can You Shower With A Gay Person And Other Questions The Pentagon Is Asking Troops

ABC News (via Jake Tapper) reports that a Pentagon survey for 400,000 non-deployed, active troops regarding Don't Ask, Don't Tell has some very inflammatory questions. For example, the survey asks respondents to say what they would do if they were assigned to a shower with a suspected or known gay or lesbian individual. Another question asks respondents whether they could live on-base if another servicemember lived on-base with his or her same-sex partner. The survey also asks respondents to state how they would respond to the prospect of sharing a room or field tent with a gay or lesbian individual.

These questions are inflammatory and designed in a manner that invites homophobic responses. I am not surprised that the military has designed such a survey. In fact, the whole idea of subjecting an equality issue to a popular vote is extremely problematic. This survey does not represent "change" or "hope" on GLBT issues.

If Gen. McChrystal Had "Come Out" to Rolling Stone, He'd Be Gone. . . .

If, rather than berating his commander-in-chief in an internationally read magazine, General Stanley McChrystal had simply said he was gay, then he would have been subject to discharge from the military under existing law. He would have been subject to discharge even if he replaced his criticism with praise and respect -- and then said "I'm gay." I offer this thought for people to consider as they debate military protocol and the merits of dismissing McChrystal.

Gates Says Obama Might Veto Bill Containing DADT Repeal Measure

Speaking on Fox News Sunday, Secretary of Defense Robert Gates said that President Obama might veto a military spending bill that contains a provision allowing for the repeal of Don't Ask, Don't Tell. The proposed measure would repeal DADT following the conclusion of a military review (slated to end in December 2010), a finding by the military that ending the policy would not compromise military preparedness, and the promulgation of policies by the Defense Department implementing an end of the anti-gay law.

Gates said that the larger bill contains spending initiatives that Obama opposes. But Republicans also vigorously opposed the repeal language, and Obama did not openly solicit its inclusion in the bill. Instead, Senator Joe Lieberman and Representative Patrick Murphy proposed the measure. Furthermore, Pentagon officials, including Gates, opposed the repeal measure, and Obama has pursued a very guarded approach to this matter. During the interview, however, Gates said that he "think[s]" that Obama would veto the bill whether or not it also included the repeal provision.

A Volley of Questions
Will Obama actually veto the bill? Will he veto the bill due to spending measures or because he opposes the repeal provision? Can Congress repass the measure as a stand-alone policy or as part of a new bill that does not contain offending spending measures? If Congress repasses the measure, will it do so prior to the conclusion of the Defense Department review of DADT? Is the threatened veto simply a way of eliminating the repeal measure and allowing the DADT review to go forward without Congressional input? If Obama vetoes the measure, will this enrage GLBT advocates, eroding support for Obama among liberals? What do you think?

Who Benefits from Deal on Don't Ask, Don't Tell?

Several media outlets are reporting that a "deal" has been reached on legislative efforts to repeal Don't Ask, Don't Tell. According to the New York Times, the deal would allow legislation proposed in the House by Representative Patrick Murphy and in the Senate by Joe Lieberman to proceed.

Nonetheless, the legislation would not take effect until after the Department of Defense completes its study on the effects of lifting the antigay ban. Also, the White House would have to confirm that repealing DADT would not harm military effectiveness.

Definitely a Compromise
So - a deal has been reached to repeal DADT after Obama determines whether the ban should in fact be lifted. This is indeed a compromise. It accomplishes several things. Democrats in Congress can claim that they ended DADT, which could score them points in midterm elections (for those who represent liberal states). Nothing tangible, however, will happen to DADT until after the midterm elections, which should protect moderates, including Obama. President Obama's one-year study of the matter will proceed uninterrupted, but he can say (again) that he is on-board with lifting the ban and that he accepts the legislation. Mainstream gay rights groups can claim victory and celebrate their access to the White House, which could lead to new donations. And all can live happily ever after. . . .

Update: I have also blogged on this issue for Concurring Opinions.

South Dakota Police Chief Says Cops Followed Rules By Outing Lesbian

Chief Steve Allender of the Rapid City, South Dakota police department says that his officers followed protocol when they outed Jene Newsome to Air Force authorities.  This decision subsequently led to her discharge.

My Take
I highly doubt that "protocol" requires officers to  peak through a kitchen window, read documents on a table, and report the existence of a lesbian marriage to military authorities.  Despite the suspicious facts of the case, Allender refuses to say that the officers acted with ill will. He says that it is difficult to know what motivates others. That is true, but homophobia is a pervasive social fact. The officers knew exactly what would happen if they reported the marriage. They likely did so to create those results. Allender should not try to deny the obviously spiteful and petty behavior of his staff. Instead, he should work to root out all forms of pernicious bias from the police department.

What Cruel Country Fires People For Getting Married: The United States

The Jene Newsome story is bringing new attention to the military's anti-gay policies. Newsome, who served in the Air Force for nine years, lost her career because she got married.

Newsome legally married another woman, and South Dakota police revealed that information to military officials. It appears that the cops were trying to locate Newsome's partner, but she did not assist them. So, they used her marriage as retaliation.

The fact that a marriage can be used as the basis for punishment underscores the nastiness of Don't Ask, Don't Tell and anti-gay discrimination generally. While the sluggish Obama Administration waits another year to "study" how to allow openly gay and lesbian people to serve in the military, professionals like Newsome will continue to lose their jobs -- which the wretched economy makes more traumatic. Shame on U.S.

NYT Op-Ed Defends Sexism and Homphobia in the Military

The New York Times has published an op-ed written by Merrill McPeak, a former Chief of Staff of the Air Force. Although McPeak's essay has the appearance of reasoned debate, it cannot escape his narrowness and bigotry.

McPeak was a military chief when Congress passed "Don't Ask, Don't Tell." President Clinton vowed to lift the military's ban on "homosexuals" altogether, but a loud and homophobic reaction led to the DADT compromise. McPeak's essay simply reiterates the same unsubstantiated claim he made over a decade ago -- that "allowing open homosexuality in the ranks would probably damage the cohesiveness of our combat units."

Contrary to Peak's mischaracterization, lifting the ban would not allow "open homosexuality" in the ranks. Instead, it would permit out gays and lesbians to serve.

McPeak refuses to accept this issue as a civil rights question. Although he rightfully argues that legal standards often allow the military to utilize different standards than civilian society, this does not make DADT a rational or lawful policy. Even in civilian employment, persons can be excluded for traits that are validly linked to job performance. So, for example, a person who cannot walk probably could not legitimately argue that he or she should qualify as a firefighter or as a member of a SWAT team.

Homosexuality, by contrast, is not linked to performance, and McPeak's essay does not even try to make the connection. Therefore, his comparison of military and civilian standards is unpersuasive.

Instead of showing that individual gays and lesbians are unfit for military service, McPeak makes the tired assertion -- refuted by several studies -- that the mere presence of openly gay and lesbian servicemembers will undermine cohesion among the troops. In particular, he says it will degrade the military's "warrior culture":

Armies have to care about what succeeds in war. Sometimes they win or lose because of material factors, because one side has the greater numbers or better equipment. But armies are sure to lose if they pay no attention to the ideas that succeed in battle. Unit cohesion is one such idea. We know, or ought to, that warriors are inspired by male bonding, by comradeship, by the knowledge that they survive only through relying on each other. To undermine cohesion is to endanger everyone.

I know some will see these ingredients of the military lifestyle as a sort of absurd, tough-guy game played by overgrown boys. But to prepare warriors for a life of hardship, the military must remain a kind of adventure, apart from the civilian world and full of strange customs. To be a fighter pilot or a paratrooper or a submariner is to join a self-contained, resolutely idealistic society, largely unnoticed and surprisingly uncorrupted by the world at large.

I do not see how permitting open homosexuality in these communities enhances their prospects of success in battle. Indeed, I believe repealing “don’t ask, don’t tell” will weaken the warrior culture at a time when we have a fight on our hands.

McPeak uses the exact same arguments that have justified the exclusion of people of color, women and gays and lesbians from the military. In fact, his view that "male bonding" is a key ingredient of a successful military would justify the exclusion of women -- even though their presence in "combat" situations today is greater than at any period in history.

I find it odd that McPeak apparently believes that so-called "warriors," whom the nation expects to defend the USA, invade other countries, put their lives and health at risk, and to abandon families and loved ones, would become blithering idiots around out gays and lesbians. Perhaps McPeak is simply projecting his own homophobia upon the nation's "warriors."

Military to "Review" How to Repeal DADT; Lieberman Proposes Repeal

Two important developments have happened regarding Don't Ask, Don't Tell -- the military's antigay policy.

Gates Orders "Review" of Best Way to Repeal DADT
First, Secretary of Defense Robert Gates has instructed a team of military leaders to "study" to best way to repeal DADT. This is the typical style of the Obama administration. The report is due on December 1, 2010. Gates issued a memo that provides some guidelines for exploration:

An integral element of this review shall be to assess and consider the impacts, if any, a change in the law would have on military readiness, military effectiveness and unit cohesion, and how to best manage such impacts during implementation.

Is it just me or does this sound unnecessarily dramatic and time-consuming? The memo almost has a Paul Revere feel to it: "the Gays are coming.....the Gays are coming....must prepare." Also, the military is taking a year (added to all of the previous years) to figure out the best way to deal with openly gay and lesbian servicemembers as opposed to the ones it forces in the closet. The results of this study could be less than desirable. Look at healthcare reform.

Senator Joe Lieberman Slated to Introduce Legislation Repealing DADT
Today, Senator Joe Lieberman will fulfill a promise and introduce a bill to repeal DADT. Lieberman's bill will repeal DADT and prevent discrimination by the military on the basis of sexual orientation -- something that sounds far more promising that Gates' review. Co-sponsors of the bill include Senator Carl Levin, Chair of the Senate Armed services Committee, Senator Mark Udall, Senator Kirsten Gillibrand, and Senator Roland Burris.

Source: Politico

2 Generals Horrified by Gays and Lesbians

The New York Times reports that Gen. George W. Casey Jr., the Army chief of the staff, and Gen. Norton A. Schwartz, the Air Force chief of staff, oppose the move to repeal Don't Ask, Don't Tell. DADT is a statute that excludes known gays and lesbians from military service. President Obama has promised to seek repeal of DADT. Recently, Senator Joe Lieberman has said that he will introduce a bill to repeal the legislation.

Casey, appearing before the Senate Armed Services Committee, said that "I do have serious concerns about the impact of repeal of the law on a force that’s fully engaged in two wars and has been at war for eight-and-a-half years. . . We just don’t know the impacts on readiness and military effectiveness." Schwartz testified before the House Armed Services Committee and stated that “[t]his is not the time to perturb the force that is, at the moment, stretched by demands in Iraq and Afghanistan and elsewhere without careful deliberation. . . ." Studies, however, show that the presence of out gays and lesbians would not disrupt military service.

The Defense Department advanced similar arguments to support discrimination against gays and lesbians during the Bush administration. Bush's Secretary of Defense Robert Gates, who also heads the department in the Obama administration, also advanced those claims. Gates, however, now supports lifting the ban.

My Take
I am always humored when military personnel argue that the mere presence of an openly gay or lesbian person could disrupt service or demoralize the troops. The nation expects members of the armed forces to abandon their families and loved ones, invade countries, slaughter opposing forces, and protect national security. But these same "warriors" are apparently so fragile that they will have a nervous breakdown if they have to serve alongside known gay or lesbian individuals. If this is the case, then perhaps they are not tough enough for military service in the first place.

Sen. Lieberman Will Introduce Bill to Repeal "Don't Ask, Don't Tell"

Senator Lieberman (I-CT) will introduce a bill to repeal "Don't Ask, Don't Tell" -- a statute that prohibits known gays and lesbians from participating in the armed forces. James Kirchick, writing for the New York Daily News, suggests that Lieberman could "frustrate and perplex" liberals by introducing "the most significant piece of socially progressive legislation that Congress will deal with this year." But Lieberman's position on DADT should not erase his bad standing with liberals.

According to recent polling data, 75 percent of the public -- including former Vice President Dick Cheney -- supports lifting the ban. Accordingly, Lieberman is not out of step with public opinion.

Furthermore, while repealing DADT is important for social justice, this topic is not as controversial as it once was. President Obama, Secretary of Defense Robert Gates, and Joint Chiefs Chair of Staff Mullen all support the repeal of DADT -- as do many members of Congress. Although he probably opposes DADT, I suspect that Lieberman is also looking for some liberal credentials after losing points with the Left due to his moderate stance on healthcare reform and his support of John McCain during the 2008 presidential election.

Ending Don't Ask, Don't Tell? Get Back to Us in a Year!

During the State of the Union Address, President Obama repeated an often-repeated promise to work to repeal Don't Ask, Don't Tell. DADT is the name of the military policy, embodied in a federal statute, that discriminates against known gay, lesbian or bisexual members of the military.

Although Obama promised to get rid of the policy during his presidential campaign, many GLBT groups have complained that he has pushed this and other issues to the backburner. Accordingly, his recent statements promising yet again to end the policy have caused some observers to anticipate a shift in direction.

Today, however, Secretary of Defense Robert Gates held a press conference during which he indicated that the repeal of the policy would not take place in the near future -- unless, of course, Congress acts more rapidly than the timeline of the Obama administration. In the typical Obama style of announcing long "studies" before actually changing policies, Gates (and Joint Chiefs Chair Mike Mullen) asked for eleven months to study "how" to end the policy before taking any concrete action.

Some civil rights activists will likely complain that the Obama administration is foot-dragging. Republicans, however, are upset that the administration's study proceeds with the understanding that the policy will end -- rather than questioning whether the military should abandon it.

Bottom line: Today's press conference represents the first time in history that a sitting Secretary of Defense and Joint Chiefs Chair have endorse an end of the policy. Accordingly, the meeting was historic. Although the statements of Gates and Mullen are historic, the announcement regarding the study is not. Exactly one year ago, the Boston Globe published an article which stated that President Obama would direct military officials to study the implications of lifting the ban. Today, the military will begin studying the implications of lifting the ban for yet another year. I suspect that many pro-GLBT activists will construe the recent move as constituting more delay.

Update: Yes -- at least one GLBT activist has described the recent announcement as more delay. See: 'Don't Ask' on slow road to repeal?

Other DISSENTING JUSTICE articles related to DADT:

Obama Administration's "Measured" Approach to Don't Ask, Don't Tell

Kinder, Gentler Discrimination: Obama Administration Trying to Make "Don't Ask, Don't Tell" More "Humane"

Don't Ask, Don't Tell, Don't Hold Your Breath

Stonewalling on Don't Ask, Don't Tell? No Action Until 2010

Robert Gates as Obama's Secretary of Defense: "More of the Same" for Gay Rights

Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?

Don't Ask, Don't Tell Heats Up in Courts and in Congress

Obama and Don't Ask, Don't Tell: Political Hot Air?

The military is preparing to discharge another decorated service member because he is gay. Air Force Lt. Col. Victor Fehrenbach faces discharge after a civilian disclosed his sexual identity to military personnel. Although Fehrenbach did not "tell" the military about his sexuality, he could still lose his job and benefits that attach to it, including a pension and health care.

Is Obama Serving "Hot Air" on This Issue?
President Obama says that he opposes the military's anti-gay policy, and during his campaign he promised to seek the repeal of Don't Ask, Don't Tell. Obama, however, has not moved on this or many other promises he made regarding GLBT rights.

Although politics involves compromises and strategies, President Obama has consistently compromised or remained silent on GLBT issues. During his presidential campaign Obama opposed the Defense of Marriage Act (along with DADT), which he described as unfair. Earlier this year, however, the Department of Justice filed a controversial brief that defends the legitimacy of the statute. The brief makes the specious claim that Congress enacted DOMA to save money, rather than discriminate against same-sex married couples.

After GLBT activists condemned the brief, Obama scheduled a White House meeting with many of them. The event coincided with the anniversary of New York City's Stonewall Riots, a significant historical milestone in the development of GLBT social movements. During the White House event, Obama defended his position on GLBT rights, and he stated that he was "already working with the Pentagon and members of the House and the Senate on how we'll go about ending this policy, which will require an act of Congress."

Even though Obama has stated that he is "working with" members of Congress to repeal DADT, the extent of his efforts remains unclear. Recently, Representative Alcee Hastings of Florida suggested that Obama is saying much more than he is doing regarding the repeal of DADT.

In a formal statement posted on his website, Hastings said that as a result of pressure from members of Congress and from the White House, he withdrew a proposed amendment to a defense funding bill that would have banned the use of money to "investigate or discharge" military personnel who reveal their sexual orientation.

Hastings also says that in late June, he and 76 other members of Congress sent Obama a letter requesting that he work with them to repeal DADT; according to Hastings, Obama never responded to the letter.

Fehrenbach, who faces discharge from the Air Force, attended the June meeting that Obama hosted for advocates of GLBT rights. Fehrenbach met Obama and told him that he faced dismissal. Obama promised that "we are going to get this done." After the meeting, Secretary of Defense Robert Gates said that the Obama administration was trying to make DADT more "humane," including possibly declining to discharge individuals who, like Fehrenbach, are "outed by a third party." Today, however, Fehrenbach remains subject to dismissal.

Final Thoughts: The Power of Politics
I completely accept the proposition that any changes in this area must result from strategies that might include compromise and patience. I also believe that Hastings, who represents a very liberal district in which many GLBT individuals reside, was engaging in generous amount of political grandstanding for his constituents when he proposed the measure to defund the enforcement of DADT.

Nevertheless, I do not share the opinion of writer Jackson Williams, who, in an article published by the tirelessly pro-Obama Huffington Post, contends that Hastings was "foolish" for raising the issue of DADT while Obama is struggling to pass health care. The number of excuses that Obama and his supporters have offered to justify his tepid approach to GLBT rights is increasing. The economy, the wars, inaction by Congress, and now health care all render GLBT rights trivial and complicated. Whatever happened to multi-tasking?

The wars will not end in the foreseeable future, and the economy will remain in a precarious state for some time -- according to Obama himself. Furthermore, the passage of health care reform will not retire the issue because any changes will require implementation.

Furthermore, the excuses that Obama and his supporters offer to justify inaction on GLBT rights conflict with many of the best reasons for ending anti-gay discrimination, including arguments that Obama accepted in the past. For example, Obama and his supporters contend that the wars and national security require a delay in the repeal of DADT. Obama, however, previously argued that repealing DADT is important for national security because the policy deprives the armed forces of talented individuals. Obama and his supporters also argue that repealing DADT cannot occur until the government stabilizes the economy. Enforcing the policy, however, deprives people of jobs, and during a time of high unemployment, this is extremely problematic. Persons who condemn Hastings for pressing the matter during health care debates conveniently neglect to mention that the enforcement of DADT causes many service members to lose health benefits.

More importantly, as I have previously argued on Dissenting Justice (and elsewhere), social movements must push politicians to take positions. This "pushing" includes strategies like the one Hastings recently employed. Hastings has now taken a hard stance on the issue, and he has formally "called out" Obama for taking a conservative line. As a result of this exchange, the stakes will be higher for Obama in the future. If he continues to dance around GLBT issues, then the level of disappointment among his liberal base will continue to rise, which will undermine his reputation as a trustworthy advocate. Eventually, Obama must deliver something tangible to his liberal base -- just as Hastings has done. Placing pressure upon moderate politicians like Obama, who claim to support GLBT issues, likely represents the only viable path to real change.