Constitutional Scholar Examines Obama’s ‘Wily’ Effort to End ‘Don’t Ask, Don’t Tell’

While high-profile members of the Obama administration, including the president, have repeatedly knocked "Don't Ask, Don't Tell" as ineffective and discriminatory, the Justice Department has defended it in federal court causing plenty of consternation from opponents of the law. The administration has responded to the howls of indignation that it is following a longstanding policy of many administrations to defend congressional acts in the courts.

Adam Winkler, a UCLA School of Law professor, in a piece for The Huffington Post asks whether it's possible "that the president is employing a wily, covert strategy that all but guarantees the courts will find the law unconstitutional?"

Winkler notes the Pentagon report issued last week that includes a survey showing strong support among service members for repealing the law, which bars lesbians and gay men from serving openly. The Pentagon study also concluded that allowing gays to serve openly presents little risk to the military, and was accompanied by Secretary of Defense Robert Gates' call for Congress to act quickly to repeal the law. Obama also issued a press statement saying the policy "diminishes our military readiness," and "violates fundamental American principles of fairness and equality." As Winkler notes, Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have also issued similar statements.

Winkler suggests that the administration's rhetoric calling for an end to "Don't Ask, Don't Tell," even as it defends the law in federal court might well be a strategy aimed at ensuring the law's demise. (Earlier this year, U.S. District Court Judge Virginia Phillips ruled that the law violates the Constitution's First and Fifth Amendments and issued an injunction against the policy. The Department of Justice appealed the ruling and won a stay of the injunction as the U.S. Court of Appeals for the Ninth Circuit considers the case.)

Winkler writes:

That's where these strong statements about how the law is unnecessary for military readiness and combat effectiveness come in. These could be seen as simply rhetorical flourishes designed to appease his base of support. President Obama may yet have another reason for the public comments. His statements and those of the top military officials could be designed to insure that courts strike down ‘Don't Ask, Don't Tell.' 

Obama's statements fundamentally undermine the argument that ‘Don't Ask, Don't Tell,' is required for military effectiveness. He's said, in fact, that the policy actually undermines that goal. So even though the Justice Department is arguing in court that the policy is needed, top military commanders, including the Commander-in-Chief, have admitted that the policy harms the military.

University of Chicago School Law School Professor Geoffrey R. Stone, also an ACS Board member, noted in a piece for The Huffington Post that recent polling shows most Americans, including Republicans, strongly favor repealing "Don't Ask, Don't Tell." But he notes that stubborn opposition from Republican senators is making it likely that the courts may have the final say on the law.

Stone writes:

Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities. ...

We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.

In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority." 

Adam Winkler's full commentary at the Huffington Post continues here....

Source: American Constitutional Society Blog (acslaw.org)