Obama as Commander in Chief and DADT

According to a Newsweek article that sources a bunch of different military and constitutional scholars, Obama in fact does have options in at least putting a freeze on enforcement of 'Don't Ask, Don't Tell'. Not only is there precedent in the courts but Congress has explicitly given him greater freedom in how to enforce laws regarding the military and shaping regulations that pertain to those laws. There are a number of justifications for not enforcing the law and aside form an executive order, as the head of the military he could simply instruct the military to stop enforcing the law.

Reasons discussed went as follows:

1) He could declare that he believed it to be unconstitutional. When the law was first put in place in 1993 there was no legal precedent for recognizing the rights of gay people. That changed, though, when the Supreme Court recognized the right to privacy of people in gay relationships in Lawrence v. Texas which struck down the sodomy law in that state, effectively ending sodomy laws across the country. This decision then also set a standard that unless the state can prove that it had a legitimate interest in limiting the rights of LGBT people, laws infringing on those rights were unconstitutional.

2) Congress and the courts often defer to presidential authority under Article 1 of the Constitution. While the matter of his seemingly ignoring laws passed by Congress could go to the courts, the case would have to be argued on behalf of military officers and or members of Congress. But Article 1 gives the president a lot of leeway.

3) There are already laws in place that the President either does not enforce or enforces lightly, in particular when it comes to deciding on what laws to prosecute and in seeking sentences.

4) In 1984 Congress gave the president 'Stop-Loss' authority that allows him to put a halt to discharges in the face of troupe shortages. In the current climate, it is a widely regarded fact that there has been difficulty in recruiting service members. Recruitment has been so difficult, in fact, that they have been allowing convicted felons and high school dropouts to join, been lowering standards of physical fitness and been giving wavers to soldiers caught and convicted of crimes during active duty.

5) He could have decided from the beginning not to defend the law. This would have set up a situation where the decision didn't override legislative or executive power. Like Governor Schwarzenegger did in California on the case against Prop 8, he could have allowed other groups, including Republicans in Congress, to step in and try to defend the law in court, if the court allowed it. Doing this would not only have provided him political cover among his base, but also would have allowed him to not act in direct conflict with stated policy.

The President, while making firm statements in his belief that the policy is wrong and is even detrimental to our national security, has yet to say whether he believes it is unconstitutional. From the beginning he could have instructed the Justice Dept. to argue the case from a point of already believing the law is unconstitutional. To the contrary, however, my understanding is that they've been aggressive in defense of the law.

While some people may think rail against 'judicial activism', the same kind of activism that held up voter's rights in FL during the 2000 election and thereby giving the hypocritical George W. Bush the win, as I've stated before that is the job of the federal court system, or one of them at least. It is always funny to me how people, almost always people on the political right, argue about judicial activism only when their side loses. People on the political left have done so rarely and most recently in what I believe to be a truly horrific decision by the Supreme Court in the Citizens United decision that recognized corporations as legal entities with a right to free speech. By doing this they've allowed unprecedented amounts of money to flood the campaigns during this election cycle.

In terms of the President enforcing DADT or not enforcing it, it is a terrible contradiction for him to hold a position that he clearly is not willing to act upon when he does have options, at least while the courts are deciding on the issue. His Justice Dept is seeking a stay on the injunction, arguing it before the judge who created the injunction and now issuing a request for an emergency stay on the injunction to the Court of Appeals. Whether it is likely or not that Court of Appeals would go through with putting a stay on the decision seems to be a mystery to most. What is believed, however, is that if the issue goes to the Supreme Court, because of the political atmosphere on the court it is likely that they would issue a stay, at least while the case itself is going through.

What the Judge reasoned, however, when denying the request for a stay is that the government failed to prove that the injunction would in fact harm readiness and troupe cohesion as they've argued all along. They failed to prove their case, and if the Appellate Court agrees, there really may be too weak of a case. Also, I would think that by now, considering the study ordered by the President and Secretary of Defense was supposed to have begun in July and been done by Dec 1st, which is only about six weeks away, they must have at least some data already that would give a preliminary indication about the effect of DADT. If they don't or if they are reticent not to give away the surprise before the study is complete, I suppose they seem happy to have a weak case. If, however, the preliminary findings of the ongoing study lean toward it being less of a problem than argued by the political right, than they should suffer the consequences of going against even the evidence they already have.

The bottom line is that when the President says he doesn't have the authority to end the law by executive order, he is correct. When he says that, though, and lets it imply that he has no options or recourse other than to wait until Congress repeals the law, he is deliberately dodging the issue and dodging his responsibilities as a leader. He has stated his position on the policy. He has authority to take action that would at least temporarily halt enforcement of the policy he's against. He has a responsibility to the citizens of the United States and especially to those serving in the military to exercise the leadership we had hoped he would exhibit when we elected him into office.

More on Obama and the ruling and injunction on Don't Ask, Don't Tell

There are some necessary thoughts about the effects of the Don't Ask, Don't Tell policy. Rachel Maddow on her show on MSNBC, which it shouldn't be a surprise that I love, interviewed two service members, both decorated Air Force fighter pilots who have served tours in central combat zones. Both men were kept in shadow and their identities were protected. The first of the two interviewees has a partner and laid out one of the most essential problems with the policy. Because he is gay and is forced to remain in the closet, his relationship with his partner must remain absolutely secret. That means the partner has no official relationship status with the service member.

One of the consequences of this lack of status is that the partner of a service member on active duty would not be notified if their partner was killed in action. The reverse is also true, should anything happen to the non-military partner, unless a family member or close friend was able to inform them, which is not always the case if they are in a heavy combat area, that military person wouldn't know if they're partner died. If they were recognized by the military, the administrative arm of the military would make sure that this notification happened either surviving partner.

Also, according to the interviewee, a service member can be sent home to be at the bedside of their spouse. Because of DADT, when his partner was in the hospital because of medical complications and his heart stopped and had to be resuscitated, he not only couldn't be there by the partner's side but wasn't even able to be informed of the situation. As a result he didn't find out until later how critical the health scare was. Because he's not out to his family or any but a few very close friends he couldn't obtain that information indirectly either. In the interview he said that he'd written a letter for a friend of his to give to his partner in the case of something happening to him during active service, and that that would be the only way his partner would be notified.

Estimates as to the number of gay men and lesbians in active military service probably vary widely, but a statistic I thought looked good from the methodology of those studying the issue came up with about 11,000 lesbians, 14,500 gay men. I've heard estimates that are three times that number.

Whatever the actual number of service members are gay or lesbian, it is inconceivable that anyone who truly respected the service of troupes and the needs of military service members would not recognize the incredible burden they are placing on these people by not repealing DADT. It is a clear example of the hypocrisy of the right-wing of politics that they have taken control of discourse around the meaning of freedom and liberty and what it means to be a patriotic American, yet they largely oppose open-service. You cannot be both. Either you are a patriot who loves our country and the freedoms that are at the foundation of our society, that you respect and are devoted to the welfare and well-being of all our service members, or you oppose the fundamental right of people in the service to healthfully and respectful acknowledge and embrace their essential identity and be unafraid of reprisals because of that openness.

It is a fact that Obama could issue an executive order that would put a moratorium on the execution of DADT. It is nearly a fact that there is no chance of the repeal of DADT actually passing as a part of legislation in the Senate, especially with the inevitable results of the 2010 mid-terms. Let me repeat that to be perfectly clear, there is almost NO chance for the repeal of DADT to pass in the Senate. If that doesn't happen, there is absolutely no way for Obama to oversee it's outright repeal. Even with a moratorium via executive order, that would only stay in effect until the next president decides to lift it, thereby reinstating the policy.

Right now, barring an act of honesty and integrity on the part of the Republican minority in the Senate, the only way for DADT to be repealed is through the courts and the only way for it to happen under Obama's current term is for him to instruct his Justice Department to not appeal the ruling from "Log Cabin Republicans vs. the United States" and the subsequent injunction. If he is honestly serious about seeing the policy end, which he states over and over again, this is his last real option. If he is honest in claiming that he is an ally of the LGBT community, this is his chance to prove it.

President Obama and the Gay Left

Something pretty incredible happened recently. After two important rulings regarding the Don't Ask, Don't Tell policy in the US military first declared that the policy violates constitutional rights of service members and people considering entering military service but that in at least the instance of a specific flight nurse the policy actually hindered readiness and morale. The primary reason given by those opposed to repeal is that allowing gay and lesbians hurts readiness, morale and group cohesion. Recently, the judge who declared the constitutional issue via a ruling in a lawsuit filed by the Log Cabin Republicans issued a worldwide injunction basically saying that anyone and everyone involved with the military administration and chain of command must immediately halt any and all procedures involving implementing DADT.

Now, those on the progressive side of politics, progressive Republicans as well as Democrats, have seen the faces of service members who were discharged, some of whom have honorable and highly lauded careers as well as specialized skills such as being Arab linguists. As most US citizens support the repeal, and as the military struggles in many areas of recruiting and retaining qualified and talented service members, it becomes apolitical to support the cause of repeal.

And then there's the position of the President. From the beginning of his campaigning for the support of the LGBT political left Obama has made repeal of DADT his clinch issue. Many other issues important to progress of gay rights do not really have national platforms or attention right now, nothing like the attention on DADT. Because of that, it was an extremely important to securing the kind of financial support and political action from groups like the HRC.

From what I understand, as Commander in Chief, the president had the power to immediately halt the investigative process in the discharging of gay service members. While it wouldn't outright repeal the policy, it would have kept hundreds of qualified and awarded members of the military from being removed from service. As of now, Robert Gates, the Secretary of Defense, has given instructions to the military to halt enforcement of a key part of DADT, which is the involuntary outing, so basically the witch hunts and the investigations prompted by rumors from other service members of a service member's sexuality. One of the reasons he did this was to prompt a more 'humane' approach to enforcing the policy and was done around the time that they commissioned the study on the most effective way to implement repealing the policy. The president could have done that more than a year earlier.

It is important to note, and this is something that conservative Republicans, and those who repeatedly used anti-gay rhetorical reasoning in their committees, so not necessarily outright derogatory remarks but rather lines of reasoning based on base stereotypes and horrible prejudices, is that it is only a matter of time before it is repealed. Nearly all the military leadership recognizes and wants this to be repealed. The President and the Secretary of Defense are committed to repealing it, one way or another. The majority of citizens think it makes no sense and support repealing it and allowing open service. Thus, it's only a matter of time, so while they argue against repealing it, that's not the issue cause it's going to be repealed. The issue, in terms of their filibusters and nay votes, has been when they would implement the procedural activities involving repeal, not whether it would happen at all.

So the problem now for the President is that he's got not only two court cases, landmark cases, that justify repeal and rule against the policy's constitutionality, but that there is now a legal injunction in place preventing any implementation. Does he have the Department of Justice, which was the group acting as the plaintifs in both cases and basically arguing for the constitutionality of the policy, appeal the ruling on the Log Cabin Republican's case and the subsequent injunction? They have already started the appeal process for a recent ruling in Massachusetts that overturned DOMA, the 1996 Defense of Marriage Act put into place after gay marriage was allowed in Hawaii, a situation that has since been changed through voter memorandum. The argument about DOMA was made around the distribution of federal benefits by the state to married same-sex partners and the 'Full Faith and Credit' clause to the Bill of Rights, which guarantees that any legal contracts recognized in one state, be they private or business contracts or whatever, must be recognized by all other states. DOMA specifically defines marriage on the federal level as between a man and a woman, and rejects any same-sex marital status from a given state in terms of federal pension and social security benefits and everything else on the federal level. It also said that any state can decide for themselves what the definition of marriage is and choose to not recognize marriages from other states. They will appeal that ruling.

In light of the Justice Departments decision to appeal the DOMA ruling, and in light of the fact that the White House has taken a soft position on the repeal of DADT as wanting it to be done by Congress, it is not certain whether they will then appeal this ruling as well. These are important cases and would be hugely influential on all civil rights laws, just as those regarding African Americans were in past decades, if they reach the Supreme Court. As there is, right now, a balance that slightly favors the liberal end of the Court, it would be a good time for these cases to go before them. The problem for Obama and for the gay community is, if Obama has them appeal the DADT ruling as they are doing with DOMA, they will be not only acting against their position on repeal but in fact will be standing against the progress of LGBT civil rights.

There are arguably three cardinal issues in struggle for LGBT civil rights. The first is same-sex marriage, which is probably the most divisive issue nationwide. Eventually, no matter how much the religious conservatives in this country speak out against it, gay marriage will be a reality. All conclusive evidence in terms of polling and studies done about election turnouts indicate that the country is growing more and more supportive with younger generations, and sorry to say this but eventually those who think they are on the correct side of the issue by opposing it are going to die off. Most likely they'll die off soon as most of those who oppose it are older. The second cardinal issue is Don't Ask, Don't Tell. This is the one that has been most pressing in the past two or three years and the one that Obama took the most decisive progressive position on. The third and possibly fourth issues are same-sex adoption and then policies in schools dealing with the harassment of LGBT youth.

Obama has now made a serious misstep in terms of a progressive, pro-civil rights position, on one of these cardinal issues in having the Justice Department appeal the DOMA ruling. That particular ruling is pretty solid and has legal precedence behind it in the overturning of laws prohibiting interracial marriages. If that goes to the Supreme Court, however, no matter what the outcome the repercussions across the country will be significant. Ruling in favor of striking down DOMA would be a move towards considering the issue of the legislation and amendments to state constitutions, which cannot violate the federal constitution. The DADT ruling, however, and particularly the injunction are on much shakier ground as they are unique, they do not have the backing of precedent and while the constitutional issue may be upheld by the Court, the injunction could be challenged on multiple fronts, including the separation of powers clause.

President Obama has not taken decisive action in repealing DADT. Instead he has issued strong positions while implementing soft actions, failed to put the necessary pressure on Congress to proceed in a way that was conducive to passing repeal, and now may or may not appeal the most conclusive and decisive action taken on the policy, this time by the federal courts, thereby either directly compromising his position on repeal or, if choosing not to appeal, taking no action at all as another branch of the government altogether takes the hard action. Either way there has been a profound failure of decisive leadership. If promises and policy positions are to mean anything, a leader needs to take strong, clear action on them. If he pledges his support to a policy position and promises to do whatever it takes to accomplish the goals of that position, it means nothing if he doesn't take action to achieve those goals. By stating publicly, both in meetings with LGBT lobby groups like the HRC and in the State of the Union Address that he was going to make sure it was repealed, he must make good on his promise. He hasn't done so, though. Instead he has abdicated that function to the courts while providing just enough political action to give himself cover if the issue is brought up by progressives in his own reelection campaign.

Mr. Obama promised to be a fierce ally and advocate for the civil rights of LGBT people. He has said multiple times that he is committed to the repeal of DADT and not done nearly as much as he can in order to ensure repeal. Can the LGBT community then really claim that Obama is our ally? John McCain, during his election campaign, also took a pro-repeal position. He might have been the principle senator in filibustering the repeal legislation but if he had won the presidency, who's to say he wouldn't have worked toward repeal. When it comes time to start drawing battle-lines for the 2012 presidential campaign, when Obama begins soliciting campaign contributions and looking to excite the progressive base who were instrumental in his initial election, will the LGBT community show up in similar numbers? Will we give in similar amounts or act with similar force as we did in 2008? If the major policy issues the President can affect are decided through the courts and there isn't much left for him to do, then the question will be should we support him as we did. In a year when there may possibly be a Sarah Palin nomination for the Republican candidate, we may have no choice. However, when we have such immediate issues as the recent gay teen suicides to deal with and organizations that can benefit those youth directly with our contributions, wouldn't our money be better spent there rather than on a candidate who proved himself to be at best a useless ally?

Should GLBT people abandon Dems?

It seems like Obama, despite the continual promises of support for GLBT rights, especially the repeal of Don't Ask, Don't Tell, it seems like the administration and the Democrats in general aren't able to live up to campaign promises and take decisive leadership roles on GLBT issues. In fact, between the Dems who supported McCain's filibuster and the lack of leadership by Obama administration, perhaps it's time that the HRC and major GLBT supporters of the Democratic party should be changing the focus of our fund-raising efforts to put more effort into supporting GLSEN, Lambda Legal, and organizations that support members of the military. I think it might be time for us to give up on the idea of these politicians to support us and for us to make more of an effort for us to take care of our own.

This isn't to say we should totally abandon Democratic and Independent candidates, and any others who pledge to support GLBT rights, that would be a mistake, but we should make our disappointment and displeasure heard by withdrawing financial support. If our political are more interested in keeping their jobs than in actually leading, maybe it's right for them to be voted out now while we have a Democratic president to veto Republican legislation and find candidates for the 2012 elections that are going to take strong stands.

One reason I am bringing this up is because of two recent cases of young teens, both 13 year old boys who were known to be gay, who because of extreme bullying in school, attempted suicide. One of the two shot himself and is dead, the other is on life support after hanging himself at home. This second victim had left school to be home schooled because of the peer torment and was still being bullied. It is unacceptable that just as these students are coming to an awareness of their sexual orientation at earlier ages that we aren't drastically increasing our efforts to protect them.

It has always been difficult for adult GLBT people to mentor young people. It is all too easy for supportive adults to become targets of accusations of sexual misconduct. This doesn't, however, make it any less important for us to put our efforts into supporting organizations that provide support groups, social opportunities, and safe spaces for our youths. If support from the government is being opposed by people on the conservative Right, or even the anti-gay center, than we should put our money power into supporting our young people.

Whatever steps we take in the future, we cannot allow our community to abdicate responsibility for our most vulnerable, thereby giving conservatives the ability to successfully limit our outreach programs and community support. If Obama and the Democrats can't take firm action on DADT, something the president could end with a single Executive Order, than we need to find leaders who will.