5 Years After DADT Repeal, A Look Back At How We Won The War
Although President Obama Often Gets Credit For Lifting The Ban, LGBT Servicemembers And Grassroots Activists Led The Charge
On Sept. 20, 2011, the U.S. military policy that prohibited the service of openly gay men and women finally and officially ended.
In effect since 1993, Don’t Ask, Don’t Tell was responsible for curtailing the military careers of more than 14,000 American servicemembers and causing psychological damage to many more. The policy forced gay men and lesbians in the military to live in constant fear of exposure as they served under the threat of losing their jobs should their sexual orientation become known.
The cost to American taxpayers of discharging openly LGBT servicemembers under DADT is estimated at some half a billion dollars. But the cost to military effectiveness and governmental integrity was even more staggering.
As proponents of ending DADT pointed out, the ban promoted a hostile working environment, wasted crucial resources on unnecessary investigations, forced many qualified service members to leave the military, and caused others not to join, thus depriving the military of much-needed talent.
In addition, as Adm. Michael Mullen, former Chair of the Joint Chiefs of Staff, observed in 2010, the policy forced members of the military to violate the honor code by lying: “I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens,” he said, adding, “For me, personally, it comes down to integrity â€” theirs as individuals, ours as an institution.”
Frustration and Disappointment
The struggle to end the odious policy was a long and frustrating one, filled with disappointments and surprises. The struggle began as soon as it was enacted in 1993, when David Mixner, who had supported President Bill Clinton in the 1992 presidential election in part because of his commitment to end the military’s blanket prohibition on LGBT servicemembers, broke with him over the â€œbetrayalâ€ that was Don’t Ask, Don’t Tell.
The policy was originally touted as a way to end the witch hunts to which LGBT servicememers were subjected. The “compromise” was supposed to be “Don’t Ask, Don’t Tell, Don’t Pursue.” But in implementation, LGBT people were in fact “pursued.” The number of troops dismissed under “Don’t Ask, Don’t Tell” was higher than had been dismissed under the blanket exclusion of gay and lesbian personnel.
But with the election of President Barack Obama in 2008, hopes were high that the DADT policy would soon be history. During the campaign, then-Sen. Obama said that repeal of the policy would be a top priority of his administration.
Following his assumption of office in 2009, however, Obama disappointed many of his LGBT supporters by his timidity in confronting the issue. He indicated that plans to repeal the policy would be delayed so that he could confer with Secretary of Defense Robert Gates, a Republican holdover from the President George W. Bush administration, the Joint Chiefs of Staff, and his new political appointees at the Pentagon to reach a consensus, and then present legislation to Congress.
During the campaign, Obama intimated that he would end the ban by executive order. After the election, however, he insisted that only Congress could change the policy. And despite the fact that his party had large majorities in both Houses of Congress, he did not make repeal a legislative priority of his administration during the first year.
Although military law experts concluded that the President as commander-in-chief had the authority to suspend discharges under the policy, and thereby end it in practice, Obama refused to exercise this authority.
Moreover, the justice department continued to oppose court challenges to Don’t Ask, Don’t Tell, even saying in briefs that dismantling the policy by court order would create chaos and endanger the nation’s safety.
The Don’t Ask, Don’t Tell policy discriminated against gay men and lesbians so starkly that it became emblematic of the injustices LGBT individuals experience in American society generally, particularly since those who experienced the discrimination directly wanted only to serve their country.
Its repeal became a priority of the LGBT movement even though the number of individuals affected by it was relatively small compared to those who experience discrimination in the private sector or in the area of partnership rights (before the landmark Supreme Court rulings that dismantled the Defense of Marriage Act and mandated equal marriage rights), and even though the number of servicemembers discharged under the policy declined in its later years, falling from more than 1,300 discharges in 2001 to 499 in 2009, owing largely to the need for recruits to fight two wars.
DADT also became emblematic of the difficulties of effecting real change in the United States and of the unresponsiveness of American political institutions to popular will. Despite the fact that large majorities of Americans believed that gay men and lesbians should be permitted to serve openly in the military, the DADT policy proved extraordinarily resistant to change.
Because the policy became such a symbol of injustice, its repeal sparked a new and fierce activism. Legal organizations, academics and individual servicemembers emerged to lead the movement against the policy.
The Servicemembers Legal Defense Network (SLDN) â€” now known as OutServe-SLDN, an organization dedicated to ending discrimination and harassment against military personnel affected by DADT â€” became a leading voice for change. It offered free and confidential legal advice to those directly affected by the policy; it lobbied Congress and other political institutions for repeal of the policy; and it challenged the constitutionality of the policy in court.
The work of the Palm Center, a think-tank originally at the University of California, Santa Barbara, but subsequently relocated to UCLA, and now independent, which concentrates on the study of sexual minorities in the military, was also influential in attacking DADT. Its research thoroughly undermined the assumptions about the deleterious effect of gay men and lesbians on unit cohesion that allegedly justified the policy in the first place. The numerous books and articles â€” both scholarly and journalistic â€” of Nathaniel Frank and Aaron Belkin were especially significant.
In addition, a number of individuals who were directly affected by the policy also emerged as effective activists against it.
Perhaps the best known of these was a charismatic infantry officer and Arab linguist who served in Iraq in 2006 and 2007, Lt. Dan Choi, who outed himself in March 2009 on MSNBC’sÂ The Rachel Maddow Show. A 2003 West Point graduate, Choi challenged the policy on a number of fronts, from an open letter to Obama to acts of civil disobedience.Â
Capt. Jim Pietrangelo also frequently engaged in civil disobedience to protest the policy. He fought in Iraq in 1991 as an infantryman and returned as a JAG officer for the second Iraq War. As he was readying for a third combat tour in 2004, he was honorably discharged after being outed by a third party. Pietrangelo sued the government, charging that the policy is unconstitutional. He appealed to the Supreme Court, but in June 2009, pursuant to a request from the Obama administration, the Supreme Court rejected the case.
Army Sgt. Darren Manzella came to national attention in 2007 when he announced on the CBSÂ news program 60 MinutesÂ that he was gay. He became the first openly gay service member on active duty to speak to the press from a war zone.
Because of his frequent appearances on television in opposition to the DADT policy, Air Force Maj. Michael Almy became a familiar critic of the regulation. Almy was named one of the top officers in his career field and led 200 airmen in Iraq. He became the subject of an investigation after his e-mails were illegally read. He was relieved of his duties in 2006 after he refused to make a statement about his sexuality without the presence of his attorneys.
An active duty Air Force Lt. Robin Chaurasiya faced disharge under DADT because she entered into a civil union with her partner. In speaking out against the policy, she received widespread support from her unit.
Air Force Lt. Col. Victor Fehrenbach was one of the highest ranking servicemembers to fight against the DADT policy. After 18 years of service as a decorated pilot â€” the recipient of nine Air Medals, including one for heroism â€” Fehrenbach was investigated on suspicion of homosexuality in 2008.
At first he decided to go along with the discharge, despite being close to a full pension, just because he wanted the ordeal behind him. But then he had a change of heart. “The military was taking everything away from me, but the one thing I realized they couldn’t take from me is my sense of right and wrong,” he concluded. So he decided not only to fight the discharge but to go public with his case on The Rachel Maddow Show.
A transgender activist who served for 20 years in the Navy as a male and who retired in 2000 as a First Class Petty Officer, Autumn Sandeen suffered harassment as a result of her presentation as an effeminate male, but knew the regulations well enough to fight back when targeted for a DADT investigation. She participated in many protests, including one in which she was arrested with Choi and others for handcuffing themselves to the fence in front of the White House.
Servicemembers United Executive Director Alexander Nicholson was also one of the leaders in the fight to repeal Don’t Ask, Don’t Tell. A former Army human intelligence collector who speaks multiple foreign languages including Arabic, Nicholson was discharged from the military just six months after the terror attacks of Sept. 11, 2001. In 2005, Nicholson went public about his own experience with DADT and began encouraging other veterans to become active in opposing it.
National Equality March on Washington
The National Equality March on Oct. 11, 2009 was born out of frustration: frustration with the loss of referenda on same-sex marriage and other rights; frustration with the alleged co-opting of the gay rights movement by the Democratic Party; and frustration with the failure of Obama to fulfill the promises he made in his 2008 campaign for the presidency, including his failure to lead the battle against DADT.
The March, which was hastily organized in only six weeks, initially without the support of the major gay rights organizations, was called by veteran activists Cleve Jones and David Mixner, but those who responded to the call and made the March a success were primarily young activists who had been stirred into action by the passage of Proposition 8 in California, which they attributed to a failure of strategy and vision on the part of the established gay political organizations.
Despite detractors such as Congressman Barney Frank, who said the march was an exercise in futility that would apply pressure only to the grass, the Equality March attracted upwards of 250,000 highly diverse but predominantly youthful participants. Since the march was promoted primarily by bloggers through the Internet, its success was itself a tribute to the growing power of the World Wide Web.
Mixner captured the spirit of the March perfectly in the following words: “When people tell me to be patient, when people tell me, ‘Oh lord, not now,’ all I can think about is how many more tears must be shed so some politicians in a back room can figure out when it’s convenient to join us and to fight for our freedom.”
An immediate outcome of the National Equality March was the founding of the direct action groupÂ GetEqualÂ by Robin McGehee and Kip Williams, with the financial support of philanthropist Jonathan D. Lewis. The group came to national attention through its demonstrations against DADT, especially the arrests ofÂ McGehee, Choi, Pietrangelo, Sandeen and others who chained themselves to the White House fence on several occasions, most notably in November 2010 when it appeared that the long-sought repeal of DADT would fail.
Response of the Obama Administration to Grassroots Pressure
In October 2009, on the eve of the National Equality March, Obama was picketed by grassroots activists as he arrived to deliver a speech at the Human Rights Campaign’s annual gala. Under pressure from frustrated gay and lesbian activists, he again promised that he would repeal Don’t Ask, Don’t Tell, but also again failed to offer a detailed plan or timetable.
However, during the President’s State of the Union Address on Jan. 27, 2010, he announced that he would work with Congress and the military to “repeal the law that denies gay Americans the right to serve the country they love because of who they are.”
In testimony before Congress on Feb. 1, 2010, Secretary of Defense Gates and Admiral Mullen, chair of the Joint Chiefs of Staff, committed to ending the ban, though they said that yet more studies were needed in order to implement the repeal.
In his testimony, Secretary Gates implied that the military might soon adopt a more humane interim enforcement protocol before Don’t Ask, Don’t Tell was actually repealed legislatively.
On March 25, 2010, Gates announced some details of the “fairer and more appropriate” enforcement protocol. Henceforth, he explained, third-party complaints about servicemembers must be given under oath and third parties would be scrutinized more thoroughly to prohibit disclosures by those with vindictive or inappropriate motives. He also struck down the practice of allowing confidential conversations with lawyers, clergy, physicians and therapists to be used in fact-finding inquiries.
In addition, he announced that henceforward only generals and naval flag officers would be authorized to initiate fact-finding inquiries.
Steps Toward Repeal
In the spring of 2010, activists became increasingly frustrated at the prospect of having to wait almost a year for yet another Pentagon study before the DADT policy was finally dismantled. In addition, some suspected that the President and Secretary Gates were not acting in good faith.
The suspicion was that Gates had agreed to support repeal only after exacting a promise from Obama to delay legislation until after the study scheduled for completion in December 2010. That in effect would mean that repeal would not be considered until 2011, by a Congress that would likely contain far more Republicans than did the 2009-2010 Congress. Many political analysts believed (correctly, as it turned out) that in 2011 there would be fewer supporters of repeal in Congress than there were in 2010 and that if Republicans gained control of one of the Houses of Congress, they would prevent repeal.Â
After several acts of civil disobedience, and even the heckling of Obama at fundraising events, activists pleaded with the president to keep his promise to repeal DADT in 2010 and to exert control over the Department of Defense and the Department of Justice, which were defending the policy in court.
These calls were met mostly with silence from the White House. In response, many leaders and bloggers urged LGBT voters to withhold support from the Democratic Party if action on repeal was not forthcoming.
It is believed that House Speaker Nancy Pelosi and Chair of the Senate Armed Services Committee Carl Levin in effect forced the president’s hand. Allegedly, they told him that they were close to having sufficient votes to repeal DADT and were planning to proceed with legislation regardless of his support. They warned that if they succeeded without his support, he would get no credit; and if they failed, he would be blamed.
In response, the president and Secretary Gates tepidly endorsed a compromise in which Congress would vote to authorize repeal of the ban subject to the December study and to assurances from the president, the secretary of defense, and the Chairman of the Joint Chiefs that the repeal would not affect military readiness, unit cohesion, and recruitment and retention.
Even after agreeing to the compromise, however, Secretary Gates and some of the military leaders campaigned against it.
Nevertheless, on May 27, 2010 the Senate Armed Services Committee endorsed the compromise on a 16-12 vote and the House of Representatives voted in favor of the compromise on a vote of 234 to 194.
Filibuster and Disappointment
However, soon after these important votes, Republican senators, led by an embittered and erratic John McCain, vowed to filibuster the repeal of DADT when the Defense Appropriations bill came to the Senate, thus requiring 60 votes to allow the amendment authorizing repeal to be considered.
On Sept. 21, 2010, Senate Majority Leader Reid moved to invoke cloture to kill the Republican filibuster. This motion received 57 votes, three short of the necessary count. All the Republicans and two Democrats (Senators Pryor and Lincoln of Arkansas) voted to sustain the filibuster, thus dooming the attempt to repeal DADT to failure.
Immediately after the vote, Nicholson of Servicemembers United issued the following statement: “Today’s vote is a failure of leadership on the part of those who have been duly elected to serve this nation and to put the best interests of the country ahead of partisan politics. It is simply inexcusable that this vote failed today.”
When it was revealed that President Obama had lobbied not a single senator to vote in favor of breaking the filibuster and that the day after the vote Vice President Biden flew to Arkansas to attend a fundraiser for Sen. Blanche Lincoln, who had joined the filibuster, many activists came to the conclusion that the entire vote was a charade so that Democrats could pretend they were trying to repeal DADT even as they were not.
Majority Leader Reid announced that the Senate might again attempt to repeal DADT during the lame-duck session following the November 2010 elections, but Sen. McCain said that he would again filibuster any such attempt.
Perhaps not coincidentally, in the November elections the Democrats suffered what President Obama described as a “shellacking.” In the Congress that would convene in January 2011, Republicans would control the House of Representatives and hold additional seats in the Senate.
Although some individuals had successfully sued to block discharges under the military’s anti-gay policies, most notably Sgt. Leonard Matlovich in the 1970s, Sgt. Perry Watkins and Sgt Miriam Ben-Shalom in the 1980s, and Col. Margarethe Cammermeyer in the 1990s, courts had been unwilling to declare the Don’t Ask, Don’t Tell Act unconstitutional. This is partly because of the deference that courts traditionally pay to military policy and partly because at the time courts had not recognized a constitutional right to homosexual sexual expression.
This latter condition changed with the 2003 Supreme Court decision in Lawrence v. Texas, the decision thatÂ invalidated sodomy laws. In that decision, Justice Anthony Kennedy wrote for the court’s majority that, “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”
Lawrence v. Texas proved crucial to two decisions that led to the declaration of Don’t Ask, Don’t Tell as unconstitutional by a federal district court and that altered the environment in which legislative repeal of DADT occurred.
In a 2008 case, Witt v. Department of the Air Force, the U.S. Court of Appeals for the 9th Circuit determined that the precedents upholding Don’t Ask, Don’t Tell needed to be reconsidered in light of Lawrence v. Texas.
The case involved Maj. Margaret Witt, a highly decorated Air Force flight nurse, who was discharged under Don’t Ask, Don’t Tell. After losing her case at the district court level, she appealed to the 9th Circuit.
The effect of the appellate ruling was to force the military to justify its allegations that the presence of an openly gay servicemember negatively affected unit cohesion and that Don’t Ask, Don’t Tell was necessary for purposes of military readiness. It thereby established a test by which the policy’s constitutionality could be measured.
While the ruling did not declare Don’t Ask, Don’t Tell Act unconstitutional, it made discharging soldiers under the policy potentially much more difficult. The military could not rely upon mere assertions of hypothetical risk, but had to demonstrate the dangers posed by openly gay servicemembers.
During the retrial of her case in September 2010, Major Witt’s former colleagues testified to her exceptional skills and to the fact that knowledge of her sexual orientation had no effect on unit cohesion and morale. Indeed, they testified that her firing adversely affected morale and cohesion.
On Sept. 24, 2010 U.S. District Judge Ronald Leighton ruled in favor of Major Witt and ordered her reinstated in the Air Force as soon as practicable. He found that her discharge under DADT violated her due process rights under the Fifth Amendment to the Constitution.
He wrote: “The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important governmental interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. … Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission.”
Just before the Witt case was retried, on Sept. 9, 2010, District Judge Virginia Phillips of Riverside, California, released her opinion in another case in which she had applied the Witt test. Using that standard in Log Cabin Republicans v. U.S.A, Judge Phillips ruled forcefully that Don’t Ask, Don’t Tell was unconstitutional.
Referring frequently to the 9th Circuit’s 2008 ruling in the Witt case and to Lawrence v. Texas, she declared that Don’t Ask, Don’t Tell violated the due process clause of the Fifth Amendment and the guarantees of freedom of speech and petition of the First Amendment to the Constitution.
In her ruling, she rehearsed the testimony of military experts, who explained how the policy is harmful to the military, and of servicemembers whose privacy was violated and whose expression was unconstitutionally inhibited by the policy.
In many ways, the 85-page decision is a crushing analysis of all that was wrong with the enforcement of the policy. Judge Phillips pointed out, for example, that the military often suspended investigations of troops accused of homosexuality if they were to be deployed abroad, waiting to discharge them only when (or if) they returned. This practice, she observed, is utterly inconsistent with the military’s contention that gay and lesbian servicemembers undermine unit cohesion. If they really did that, then the military would surely not want troops accused of homosexuality to serve in battle.
Quite apart from the harrowing accounts of injustice suffered by those who were directly affected by Don’t Ask, Don’t Tell, perhaps the most damning revelation of the trial was the disconnection between the ostensible aims of the legislation and its effects. As Justice Phillips wrote, “Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been not to advance the Government’s interests of military readiness and unit cohesion … but to harm that interest.”
On Oct. 12, 2010, Judge Phillips issued her final judgment and a worldwide injunction against enforcement of the DADT Act. She ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.
Dan Woods, the attorney who represented the Log Cabin Republicans in the landmark suit, released a statement on Oct. 12 declaring Don’t Ask, Don’t Tell dead: “This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can.”
However, the declaration of victory was premature. The Obama administration moved quickly to resurrect the policy. On Oct. 14, the Department of Justice indicated that it would appeal the decision and asked Judge Phillips to issue a stay of her injunction against enforcement of the Don’t Ask, Don’t Tell Act. They indicated that if a stay of the injunction were not granted, they would seek an emergency stay from the Court of Appeals, alleging that the military would be thrown into chaos if they could not enforce DADT.
On Oct. 19, Judge Phillips rejected the government’s request for a stay, but on Oct. 20, a three-judge panel of the Ninth Circuit Court of Appeals issued a temporary stay pending a hearing on Oct. 25, 2010. On Nov. 1, on a 2-1 vote, the panel issued an indefinite stay pending the duration of the appeal or until legislative action rendered the question moot.
The Obama administration’s choice to appeal Judge Phillips’ ruling, and especially to request a stay of her injunction, deeply disappointed supporters of repeal.
Perhaps as a sop to the outcry against the decision to appeal the ruling, Secretary Gates announced that subsequently no discharges could take place without the approval of the secretaries of the military branches. He claimed that the change in protocol was not an attempt to stop the discharges, but it in fact did. The first month following this change was the first month since the adoption of DADT that there was not a single discharge under the policy, and subsequently the few known discharges were at the request of the servicemembers.
Lame-Duck Hearings and Legislative Repeal
The question of repeal during the lame-duck session (i.e., the session after the November elections, but before the new Congress convened in January 2011) became urgent because it was widely believed that if DADT were not repealed then, it could not be repealed during the next two years when Republicans would control the House of Representatives and have a larger minority in the Senate.
On Nov. 30, 2010, 17 years to the day after President Clinton signed the Don’t Ask, Don’t Tell Act, the long-awaited study that Secretary Gates demanded was released. Costing about $9 million, the 362-page report concluded that a large majority of troops were comfortable with overturning restrictions on gay men and lesbians in uniform and that they expected it would have little or no effect on their units.
On Dec. 2 and 3, the Senate Armed Services Committee again held hearings on the policy. Secretary Gates and Adm. Mullen again indicated their support for repeal, especially since they now feared that the policy would soon be overturned by the courts, giving them little time to prepare for the repeal.
Two of the service chiefs were less enthusiastic about repeal, though they all said that if the law were changed they would implement the new policy.
Although Sen. Joseph Lieberman announced that there were 60 senators in favor of repealing DADT, it was still unclear whether there were sufficient votes in the Senate to defeat a filibuster led by Sen. McCain.
On Dec. 9, 2010, an attempt to invoke cloture in order to debate the Defense Authorization bill, which contained the DADT repeal as an amendment, was again defeated, on a 57-40 vote, with Sen. Susan Collins the sole Republican voting in favor of cloture and Sen. Joe Manchin the sole Democrat voting against cloture.
After the defeat, Sens. Lieberman, Mark Udall and Collins announced that they would introduce a stand-alone bill to repeal DADT. Subsequently, Reps. Patrick Murphy and Steny Hoyer introduced a companion bill in the House.
On Dec. 15, 2010, the House of Representatives passed the bill authorizing repeal of DADT by a vote of 250 to 175.
On Dec. 18, 2010, the Senate finally invoked cloture to cut off debate on the bill and end the filibuster. The vote was 63 to 33, with 57 Democrats (including two independents who caucus with the Democrats) joined by 6 Republicans to invoke cloture. McCain reacted to the vote by throwing a tantrum on the Senate floor.
The final Senate vote on the bill authorizing repeal took place later on Dec. 18. It passed on a vote of 65 to 31, with 57 Democrats and 8 Republicans voting in favor and 31 Republicans voting against repeal.
The bill was then sent to the president for his signature.
Soon after the vote to invoke cloture, President Obama issued the following statement: “By ending ‘Don’t Ask, Don’t Tell,’ no longer will our nation be denied the service of thousands of patriotic Americans forced to leave the military, despite years of exemplary performance, because they happen to be gay. And no longer will many thousands more be asked to live a lie in order to serve the country they love.”
On Dec. 22, 2010, at an elaborate ceremony to which many activists and servicemembers who had been discharged under DADT were invited, President Obama signed into law the bill authorizing repeal of Don’t Ask, Don’t Tell.
The bill did not itself repeal the Don’t Ask, Don’t Tell Act. Rather, it authorized repeal, contingent on the certification of the president, the Secretary of Defense, and the Chairman of the Joint Chiefs that ending the policy would not negatively affect military readiness. Once that certification was issued, the law authorized the Pentagon to put in place any necessary regulations to ensure an orderly transition.
The DADT policy would remain in effect until 60 days after the certification.
Meanwhile, the Log Cabin Republicans lawsuit continued in the Court of Appeals for the 9th Circuit. Following the passage of the legislation authorizing repeal, the government asked the court to hold the appeal in abeyance. The Log Cabin Republicans opposed this request, pointing out that as long as servicemembers could be discharged for their sexual orientation, the lawsuit was still relevant.
Moreover, they also observed that there was no enforceable timeline for lifting the ban or even any guarantee that the ban would actually be lifted.
On Jan. 28, 2011, the Court of Appeals rejected the government’s request to suspend consideration of the lawsuit and set a new schedule for filing briefs.Â
Significantly, the government in its briefs no longer argued that the Don’t Ask, Don’t Tell Act was constitutional. They merely pointed to the fact that repeal had been authorized and was underway.
On July 6, 2011, a three-judge panel of the 9th Circuit Court of Appeals, including Chief Judge Alex Kozinski, granted a motion to lift the stay of District Judge Virginia Phillips’ decision of Oct. 12, 2010 in which she declared Don’t Ask, Don’t Tell unconstitutional and issued a permanent injunction against “enforcing or applying the ‘Don’t Ask, Don’t Tell’ Act.” The Court also ordered that oral arguments in the case be held in the week of Aug. 29, 2011.
On July 15, in response to an emergency appeal by the Justice Department, the 9th Circuit modified the injunction in light of new information supplied by the military to the effect that the repeal process would be ready for certification in a matter of weeks. The new ruling enjoined the government “from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”
The modified injunction in effect ended enforcement of the DADT policy except that it allowed the military to refuse to accept or process applications from openly lesbian, gay, or bisexual people until the repeal process was completed.
On July 22, 2011, the White House announced that President Obama, Secretary of Defense Leon Panetta, and Chair of the Joint Chiefs Admiral Mullen had certified that the repeal of Don’t Ask, Don’t Tell would not negatively affect military readiness or unit cohesion. Sen. Carl Levin, Chair of the Senate Armed Services Committee, announced: “Today’s certification for all practical purposes marks the end of a discriminatory policy.”
Sixty days later, on Sept. 20, 2011, the Don’t Ask, Don’t Tell policy was officially repealed.
Even though Don’t Ask, Don’t Tell was now dead, many questions remained, including whether DADT was or was not unconstitutional. Whether that question will ever be answered is less likely than it once appeared. On Sept. 29, 2011, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the Log Cabin Republicans suit as moot.
More surprisingly, and disappointingly, the panel also deemed the opinion by District Judge Virginia Phillips without precedential value.
A lawsuit filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins in the Federal Claims Court sought full severance pay for gay and lesbian servicemembers who were discharged under DADT and received only half the severance pay offered others who involuntarily left the service.
On Sept. 22, 2011, Judge Christine Odell Cook Miller indicated that she would probably rule thatÂ Collins v. U.S.A. be allowed to proceed to trial, but urged the government to settle the suit rather than attempt to defend a policy that may be indefensible. In response, the government changed its policy and settled the suit.
The military moved quickly to adoptÂ policiesÂ ensuring that LGB servicemembers were treated equally. One barrier to equal treatment, however, was the Defense of Marriage Act, which prohibited the provision of many benefits to the spouses and partners of gay and lesbian servicemembers. When that barrier fell on July 26, 2013 as a result of the Supreme Court ruling in Windsor v. U.S., which declared Section 3 of the Defense of Marriage Act unconstitutional, the military moved swiftly to recognize the legal same-sex marriages of servicemembers.
None of the parade of horribles predicted by opponents of repeal occurred.
The Department of Defense has since added “sexual orientation” to its nondiscrimination policy, and has ended the ban on service by transgenderÂ Americans.
Once a bastion of homophobia in American society, the U.S. military has been transformed into an institution dedicated to diversity and inclusion.
The repeal of Don’t Ask, Don’t Tell is now considered one of the signature achievements of President Obama. But the accomplishment probably owes more to the activists who pressured him to act than to his own efforts at the time. In his first two years, the president was too deferential to Secretary Gates to exercise the kind of leadership that was needed. Indeed, Gates later claimed that he was “blindsided” by Obama’s decision to move forward with repeal of DADT in 2010.
Obama may have feared that DADT repeal might cost him support among the military and divide the country the way President Clinton’s attempt to end the ban on LGBT servicemembers did in 1993. However, in failing to act decisively, he came perilously close to failing to deliver on a significant campaign promise, one which enjoyed wide support in the general population, and to disillusioning many of his most ardent supporters.
Paradoxically, after losing the large majorities he commanded in Congress during his first two years in office, President Obama became a much more effective president. Faced with a hostile Congress intent on obstructing his agenda and unwilling to work with him to fashion compromises and solutions to national problems, he learned to use his executive authority to accomplish his goals.
Not only did he come to rely on executive orders, such as the one that prohibited federal contractors from discriminating on the basis of sexual orientation and gender identity, but he also transformed the Justice Department from an obstacle to equal rights into a means of advancing them, as when he and Attorney General Holder announced that the Justice Department would no longer defend the Defense of Marriage Act.
Buoyed by the praise he received for repealing Don’t Ask, Don’t Tell, President Obama became not only the fierce advocate for equal rights that he promised to be in the 2008 presidential campaign, but he also secured his legacy as a transformative leader whose presidency significantly changed the country for the better.
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‘On Standby’: Experts Say Manhattan Hush Money Grand Jury Delay ‘Not All That Surprising’
In a last-minute surprise move the grand jury examining the Manhattan District Attorney’s hush money case against Donald Trump was called off after being told to show up Wednesday afternoon, leaving some to wonder why. Many anticipated jurors would be voting on a possible indictment of the ex-president, one he wrongly claimed would come on Tuesday.
“The grand jury has been told to stay home today. They’re on standby for tomorrow,” an unnamed senior law-enforcement official said, Politico reports. A spokesperson for Manhattan District Attorney Alvin Bragg told Politico, “We can’t confirm or comment on Grand Jury matters.”
Meanwhile, CNN’s Paula Reid reports, “Sources tell CNN that prosecutors have been in touch with an attorney for at least one witness, and they signal that they’re leaving the door open for that witness to potentially come back to give additional testimony.”
“One of the big questions right now is whether this grand jury has actually completed its investigation or whether they will need to hear from additional witnesses.”
READ MORE: Jim Jordan’s Attack on Manhattan DA Will ‘Backfire’ and Allow Democrats to Expose Coordination With Trump: Columnist
Reid says it’s also possible prosecutors are “taking a moment to really consider the historic weight of indicating a former U.S. president.”
Reid: Sources say that prosecutors have been in touch with an attorney for at least one witness, and they signal that they’re leaving the door open for that witness to potentially come back.. pic.twitter.com/0QYsQOpWkG
— Acyn (@Acyn) March 22, 2023
Experts are offering insight on the delay, with some pointing to tying up “loose ends,” others suggesting security concerns, and others say delays like this are to be expected.
Top national security attorney Brad Moss commented on Reid’s CNN report, saying: “Interesting. Makes sense.”
Overnight, former U.S. Attorney Joyce Vance wrote, “Wherever the truth lies about what’s going on in Manhattan, that timeline suggests there may not be an indictment tomorrow or even this week.” After news that the grand jury would not meet Wednesday broke, she pointed to that remark and wrote: “This now looks like it will be the case.”
That echoes a little noticed Fox News report from Monday that indicated any possible indictment would not come before next week.
READ MORE: Trump Calls for Congress to Investigate NY AG After Judge Refuses to Delay $250 Million Fraud Trial Against Ex-President
A law enforcement “source said law enforcement does not expect the former president to be arraigned until next week as the Manhattan grand jury – which has been meeting secretly to hear evidence for weeks – has another witness on Wednesday. A virtual option was apparently ruled out as the DA is opposed to it.”
Could security be the reason for the delay? On Tuesday, award-winning reporter Carol Leonnig said law enforcement agencies are investigating “chilling” threats, including against Manhattan District Attorney Alvin Bragg.
“I have received copies and screenshots and internal documents and emails flagging concerns about specific protests, investigations into specific online threats that have been made that are not yet determined to be ‘credible and likely to occur’ but have been chilling nonetheless in terms of the threats that have been made about killing certain people,” said Leonnig, a Pulitzer-Prize winning author, on MSNBC’s “Deadline: White House.”
Former New York prosecutor Tristan Snell, who successfully helped prosecute the New York Attorney General’s case against Trump University, pointed to security measures as a possible reason for the delay.
“Most likely reason: all the law enforcement coordination and security logistics that are being worked out, including with NYPD and Secret Service,” Snell offered. “They don’t want to indict and then have a long gap between indictment and arrest/arraignment.”
He also noted, “part of the security is to ensure the GRAND JURORS themselves — 23 regular New Yorkers, doing their civic duty — are protected from a defendant who incites violence.”
Former federal prosecutor Renato Mariotti said: “Based on what we know publicly, there are plenty of loose ends that prosecutors may need to tie up, so delay is not all that surprising.”
Watch the CNN video above or at this link.
Image: Evan El-Amin / Shutterstock
Jim Jordan’s Attack on Manhattan DA Will ‘Backfire’ and Allow Democrats to Expose Coordination With Trump: Columnist
Republican House Judiciary Chairman Jim Jordan‘s unprecedented attack on Manhattan District Attorney Alvin Bragg this week will “backfire” on the GOP, according to a Washington Post columnist who spoke with House Democrats.
Chairman Jordan, who has no constitutional oversight authority over an elected county district attorney, demanded Bragg hand over documents and communications and testify before Congress about his criminal investigation into Donald Trump’s hush money payoffs and business practices. Some believe an indictment could come as early as Wednesday afternoon.
“If Jim Jordan and MAGA Republicans attack the Manhattan DA’s potential indictment of Trump, Democrats will use the proceedings to draw attention to coordination between House Republicans and Trump’s legal team, Dems tell me,” The Washington Post’s Greg Sargent said Wednesday via Twitter. “This will backfire on the GOP.”
Sargent adds House Oversight Committee Ranking Member Jamie Raskin told him: “This is an extreme move to use the resources of Congress to interfere with a criminal investigation at the state and local level.” Raskin likened “GOP ‘political culture’ to ‘authoritarian dictatorships.'”
READ MORE: ‘Chilling’: Law Enforcement ‘Seriously’ Investigating Threats Ahead of Possible Trump Indictment Says Top WaPo Reporter
Sargent says Democrats “can use this against the GOP.”
He adds: “Trump’s lawyer sen[t] a letter to Jim Jordan urging an investigation into any charges against Trump, the NYT reports. Dems will use any hearings that Jordan holds to shed light on coordination between Trump’s legal team and House Republicans, aides tell me.”
In his Wednesday Washington Post opinion column Sargent calls on Democrats to “marshal some serious creativity in response” to Republican attacks.
“The extraordinary move by House Republicans to insert themselves into Manhattan District Attorney Alvin Bragg’s investigation of Trump provides Democrats with an opening to do just that,” he says.
Sargent says “it’s not clear that Jordan, the Judiciary Committee chair, has thought this through. The course of action signaled by the letter — also signed by Oversight Committee Chair James Comer (R-Ky.) — could go sideways for Republicans in unforeseen ways.”
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Raskin is an attorney, constitutional law professor, and was the lead impeachment manager for the second impeachment of Donald Trump. He has become a leading voice for American democratic values and in the fight against the MAGA Republicans.
“If and when there is an indictment, we will be able to reconstruct all the facts of this case in a way that makes sense to the American public,” Raskin told Sargent, who explains: “The aim, he noted, would be to ‘show the justice process is working, and there is no call for extraordinary intervention by the U.S. Congress.'”
Sargent warns, “A Trump indictment will unleash months of information warfare around a numbingly complex matter never before litigated in the public arena. Democrats sometimes undervalue the importance of sheer creativity in politics, and as ugly as the GOP response has been, Republicans are responding to unprecedented circumstances with new innovations. Democrats must meet them on that battlefield.”
Florida GOP Lawmaker Who Wrote ‘Don’t Say Gay’ Bill Facing Up to 35 Years After Pleading Guilty in COVID Fraud Case
Joe Harding, the now-former Florida Republican lawmaker who authored the extremist “Don’t Say Gay” bill could face up to 35 years in prison after pleading guilty Tuesday afternoon to federal felony fraud charges in a scheme to obtain $150,000 in COVID-19 relief funds, according to Florida Politics‘ publisher Peter Scorsch.
Harding, 35, was a construction project manager who started his own lawn care company. He quickly became a right-wing darling after his anti-LGBTQ legislation, officially the Parental Rights in Education Act, was embraced by Florida GOP Governor Ron DeSantis, who signed it into law.
Harding was charged in a December federal indictment with six counts of wire fraud, money laundering, and making false statements in his plot to obtain $150,000 in COVID funds.He resigned from the legislature the following day. He originally pled not guilty.
READ MORE: ‘Chilling’: Law Enforcement ‘Seriously’ Investigating Threats Ahead of Possible Trump Indictment Says Top WaPo Reporter
After Harding was charged and resigned, Nadine Smith, the executive director of Equality Florida, responded via social media, saying: “So much harm to students, parents and teachers because of his raw political ambitions. He slandered entire communities and trafficked in lie after lie that has emboldened violent bigotry. He will have his day in court but his legacy is already a despicable one.”
Harding is not the only family member accused of criminal acts.
“Harding’s indictment follows a September guilty plea from his brother-in-law, Patrick Walsh,” Florida Politics reported in December. “As reported by Fresh Take Florida, Walsh pleaded guilty to wire fraud and money laundering charges connected to his receipt of nearly $8 million in disaster relief loans.”
Unrepentant to the harm many feel he has done to children and the LGBTQ community, in a statement Tuesday Harding said: “During the past legislative session I have felt the support of millions of Americans while fighting for our shared concerns and for the rights of parents. I will never forget the support I received from every corner of this great country.”
READ MORE: 18 Attorneys General Blast Florida’s “Don’t Say Gay” Law as Unconstitutional
Harding will be sentenced in July.
Florida’s Voice also reported Harding’s guilty plea Tuesday.
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