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Don't Ask Don't Tell - Does Constitutionality Matter?

Wednesday, October 13, 2010

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from political conversations on WNYC. On today's Brian Lehrer Show, Jami Floyd, a former Clinton White House advisor, legal journalist and IAFC contributor, talked about yesterday's injunction against "Don't Ask, Don't Tell."

Judge Virginia A. Phillips of the Federal District Court for the Central District of California is saying what Jami Floyd has said for years: the law prohibiting openly gay men and women from serving in the military is unconstitutional.

But constitutionality isn't the end-all-be-all in 2010. "Constitutional and political issues are not always the same," Floyd says, and that's why President Obama is walking on a very thin tightrope. Even though he is against DADT, the Justice Department is generally required to defend laws passed by Congress—as in this case. That's why Obama would prefer to have Congress overturn the law, not Judge Phillips.

Barack Obama and his administration are now put in the uncomfortable position of defending the constitutional issue of the same policy that they would like to see repealed. So you have the political strategy on the one hand and you have the very real constitutional issues on the other. So the judge has put them in a very awkward position.

Don't Ask, Don't Tell was a compromise from the beginning. Back in 1993, it was meant to signal a cautious loosening up of military policy excluding gays and lesbians from the armed forces. Seventeen years later, polls show that it looks staid, unjust, and unconstitutional to a majority of Americans, including Floyd.

It's a ridiculous, pardon the expression, ass-backwards policy, I mean, it requires that you be dishonest about who you are, fundamentally, it requires that people poke around in your personal business.

The other irony is that DADT hasn't been enforced equally. About 14,000 gay and lesbians members of the armed services have been expelled for telling, while none have been expelled for asking.

Even without this injunction, Congress is theoretically supposed to take another stab at rethinking DADT this year. In December (conveniently after the midterm elections) the military will present a report to Congress on the policy. So if anything, Judge Phillip's injunction could spur Congress to move a little bit faster.

Floyd and Brian capped the hour off by talking about this year's phenomenon of March on Washington redux, to "Restore America" and "Restore Sanity," led by commentators Glenn Beck and John Stewart, respectively. For Floyd, it churns up her discomfort with mixing mixing celebrities and politics.

There is a lack of leadership on some level in this country if we have to be following comedians to Washington, DC, and we have to be following comedians to the voting booth.

Read more from Jami Floyd on the It's A Free Country blog.

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