The Obama administration has disappointed some advocates of allowing homosexuals to serve openly in the armed forces by appealing a federal court decision that would have eliminated the rather hypocritical “don’t ask don’t tell” policy that now applies to gays in the military.
It seems fairly clear, however, that the administration’s move, which is said to be the prelude to having Congress change the policy, is a politically more desirable approach. A policy changed by Congress is likely to have more appearance of legitimacy than one changed — however desirably — by a single judge.
It isn’t difficult to sympathize with the Log Cabin Republicans and other gay-rights groups that have challenged “don’t ask don’t tell” on constitutional equal-protection grounds and criticized the administration for its tactics, which could look like a defense of the policy. If the policy really is unconstitutional, there’s little or no excuse for maintaining it, as a growing number of military leaders agree.
On the other hand, a court challenge that ends up in the Supreme Court will take at least a year, and perhaps longer, to resolve. It is possible that Congress could act sooner.
There are potential problems with the administration’s strategy. Senate Republicans in September acted unanimously to block a provision in a defense policy bill that would have eliminated “don’t ask don’t tell.”
If today’s elections result in more Republicans in the House and Senate, it may be impossible to get Congress to change the policy. The preferred tactic would then be to do so during a post-election “lame duck” session. Given that a goodly number of legislators in such a session will have been defeated in November but remain in office until January, any lame-duck decision will have less perceived political legitimacy than a decision taken before the election.
Even so, however, any decision by Congress would be politically more palatable than a court ruling. The “don’t ask don’t tell” policy does not prevent gay people from serving, it just prevents them from serving openly. It is long past time to change it so that people who volunteer for military service do not have to dissemble about who they are. It would be politically preferable for Congress to change it, but the sooner it is changed the better.