I have an opinion about Don't Ask, Don't Tell.
But first, full disclosure: I was part of the Administration that devised and developed DADT into law. As a White House Fellow with a law degree in the Clinton Administration, I was assigned to the Vice President’s Office. I was often asked to advise Vice President Al Gore on legal issues – the Brady Bill, the Crime Bill, Welfare Reform and, yes, Don’t Ask, Don’t Tell. I would attend the relevant policy briefings, furiously take notes, stay up all night doing research and then write legal memos for the VP’s briefing book. Not infrequently, I would personally brief the VP in advance of an event, speech or meeting with the President. Occasionally, I would brief him together with the President or other members of the cabinet in advance of a joint appearance.
It was heady stuff for a kid a few years out of law school; but Berkeley Law had been good training for the White House. Back at Berkeley I had learned to care passionately about justice but to remain dispassionate when advocating for a position.
I specifically remember the meetings related to gays in the military like they were yesterday. Unlike most other policy briefings (the Crime Bill, for example, or Welfare Reform, which were gatherings in large conference rooms, filled to capacity), these were very small, high-level meetings—twenty people, no more. At the head of the table: then-Chairman of the Joint Chiefs, Colin Powell.
It wasn't long before the subject turned from lifting the ban on gays in the military to some sort of compromise. It's worth remembering that, at first, we weren't talking DADT. Not yet. Before DADT, gay Americans were not permitted to serve in the armed forces, at all. Period.
Going back to at least World War II, service members found to be gay, but who had not committed any sexual acts while in service, would receive an undesirable discharge. Those found guilty of engaging in sexual conduct were dishonorably discharged. This was actually a DOD Directive which also stated that homosexuality was incompatible with military service.
In those early meetings, I asked, “Why?” Respectfully, but pointedly, I suggested that the ban on gay service members was akin to the segregation of African Americans during World War II—unrelated to military service, not rooted in any sound public policy and a violation of due process. It was an argument I thought General Powell would find persuasive. He did not.
President Clinton had come to office with a promise to end the ban on gays in the military. After Clinton won the presidency, however, Congress rushed to enact the existing ban into federal law, outflanking Clinton's planned repeal effort. We introduced congressional legislation to overturn the ban, but it encountered intense resistance by the Joint Chiefs, members of Congress, and some sectors of the public.
Therefore, DADT was a compromise—a weak effort to find some middle ground. As a young lawyer, I believed this political compromise, however well-meaning, to be constitutionally flawed. I said so in my briefs and at other opportunities. But as I would soon learn in Washington, political strategy often trumps the rule of law.
Fast-forward seventeen years to this week's ruling by a federal judge in California. Many on the left are cheering the ruling by U.S. District Judge Virginia Phillips ordering an immediate halt to DADT policy. I am not.
Don't get me wrong: I haven't changed my views about the policy. If anything, nearly two decades of real-world application have only underscored its failure in theory and in practice. DADT is an inane policy, one in which we compel people to lie to their superiors about who and what they are as people. When I discussed the ruling on The Brian Lehrer show, Brian pointed out the discriminatory absurdity of the policy: Nearly 14,000 service men and women have been discharged under DADT because they, or somebody else "told" superiors about their homosexual status. Yet, how many have been discharged for violating the “Don’t Ask” portion of the rule? Zero.
I also continue to believe that DADT is a bad law, unconstitutional through and through. Judge Phillips is correct: The policy "infringes the fundamental rights of United States service members and prospective service members."
Phillips ruled as I believe she should have. It is what the Constitution requires and what Congress should have done a long time ago: Put an end to DADT. But that gets us to the better result: a political fix.
DADT was wrong from the day it was passed 17 years ago. The best solution by far would be for Congress to repeal it, because it would reflect political consensus. After 17 years of DADT, we finally have the political will at the executive level to get rid of it, once and for all. We have a President who wants to see it repealed. He has the support of the Secretary of Defense and the Joint Chiefs who have expressed a desire to dismantle the policy. Secretary Gates has ordered a sweeping review, due in December, to include a survey of troops and their families. The purpose is not to determine whether to change the law but rather how to lift the ban.
Judge Phillips' decision, therefore, could not come at a worse time. It puts the Obama Administration in the awkward position of defending a policy in the courts that it is actively working to repeal. This unfortunate situation is not the fault of the judge. Responsibility lies with Congress. A majority of House members voted to repeal DADT. There is enough bi-partisan support in the Senate to pass similar legislation, but not the 60 votes needed to overcome the threat of a Republican filibuster. As a result, the issue has never been allowed to come up for a vote. And the climate is likely to get worse after the elections.
If all else fails, then we return to the courts. The administration likely will appeal Judge Phillips’ ruling. Litigation on the constitutionality of the law could go on for years, which is not the best result for a policy that is nearly two decades too old already. Those who want to see this policy undone would do to make peace with the political process.
Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.