I had dinner two nights ago with a friend who said he was thoroughly confused by an email blitz of conflicting views about the DADT repeal legislation. What did I think, he wanted to know. Bottom line - I believe that this repeal in slow motion is an extremely smart political move, and, while the fat lady hasn't yet played taps for DADT, the very strong odds are that a hideous law will soon be history.
We've all heard the downsides of the DADT deal: The policy will continue to be enforced until the last stage of a multi-step process is complete; the arrangement could fall apart at any point in that process; and the legislation contains no anti-discrimination provision (as was originally proposed) to protect those who come out in the post-DADT world.
I'm pretty optimistic, notwithstanding these downsides, for several reasons. First, POTUS has, however reluctantly, bought in big time to the deal; having it fail would be a massive lose-lose proposition for him with every voter segment. So the administration has every incentive to make it succeed. Second, the public has "been there, done that" with this issue, and I doubt that conservatives will find much traction for obstructionism outside their die-hard base. Lastly, I question whether anti-discrimination words on paper would have been terribly useful: with or without them, DoD has to carry out this transition with a minimum of thuggish resistance in the ranks or else the U.S. military will be perceived as unable to prevent the kind of fragging that broke out in the last stages of the war in Vietnam. In other words, the self-interest of the White House and the Pentagon now lies in managing a successful phase-out, not (as before) in trying to endlessly postpone it.
Beyond skepticism about the negatives, why do I think so highly of what seems like typical beltway business-as-usual deal making?
First, although it is business as usual, the LGBT community comes out way ahead. With midterms approaching, the political environment for progressive legislation is going to get much worse, even if, as current polls indicate, the Dems show signs of holding more seats than pundits predicted a few weeks ago. Given this environment, I don't see a plausible alternative scenario in which repeal would go into effect any faster than it will under the new legislation. Indeed, we may come to look back on this moment as an example of a smart inside-outside strategy, in which advocacy organizations huddled with Congressional leaders who cajoled the White House, while activists heckled, demonstrated, and chained themselves to fences to press the issue.
Second, as the process goes forward, court cases challenging DADT will wind down. The sooner the military cases diminish the better because, with few exceptions, the military always wins.
The biggest problem in DADT litigation is the Equal Protection standard of review that is applied. Courts are hesitant in any situation to treat sexual orientation classifications as suspect, but in military cases, that reluctance is even stronger. As a result, except for an ACLU case (Witt v. United States) now set for a summer trial, DADT cases have produced a long line of precedents in which courts defer to the military and uphold a discriminatory policy. Although everyone understands that the standard applied in the military context should not control civilian cases, DADT cases comprise the bulk of federal court Equal Protection decisions dealing with sexual orientation, which distorts the doctrine across the board. I really won't miss them.
Lastly, there is a silver lining to the perception that the policy has already ended, even though it hasn't. This perception itself sets a higher threshold for debate on LGBT issues. As far as the public is concerned, the exclusion of openly lesbian and gay service members is over. Done. Next?
And that's exactly what we want the conventional wisdom to be.
(Cross-posted at hunter of justice)