High Court jus­tices won’t hear ‘don’t ask, don’t tell’ chal­lenge

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

In re­fus­ing to hear a chal­lenge to the mil­i­tary’s re­stric­tion on gay troops, the Supreme Court has put the is­sue back into Pres­i­dent Obama’s lap — and gay rights ad­vo­cates are start­ing to get an­gry over his slow pace in ter­mi­nat­ing “don’t ask, don’t tell.”

Mr. Obama promised dur­ing the cam­paign to elim­i­nate the pol­icy, though he says he needs to act with Congress. But ad­vo­cates say he could end the ban uni­lat­er­ally or at the very least use his power as com­man­der in chief to stop the dis­missal of troops found in vi­o­la­tion.

“The White House has clearly made a de­ci­sion from early on that it does not want to ven­ture into cul­ture-war is­sues, but it may not have the choice, be­cause they’re get­ting a lot of bad press on this,” said Nathaniel Frank, a se­nior re­search fel­low at the Palm Cen­ter and au­thor of “Un­friendly Fire: How the Gay Ban Un­der­mines the Mil­i­tary and Weak­ens Amer­ica.”

“What’s con­cern­ing me now is they don’t seem to have a plan. They seem de­fen­sive,” Mr. Frank said.

The Supreme Court on June 8, with the Obama ad­min­is­tra­tion’s sup­port, re­jected a re­quest by Army Capt. James E. Pi­etrangelo II to hear an ap­peal chal­leng­ing the con­sti­tu­tion­al­ity of the ban. The court re­jected the re­quest, or writ of cer­tio­rari, without com­ment.

In court fil­ings, the Obama ad- min­is­tra­tion had to de­fend “don’t ask, don’t tell,” ar­gu­ing that it was a ra­tio­nal pol­icy for the mil­i­tary, though most ob­servers viewed that not as a change in po­si­tion but as a way to buy time while the Pen­tagon re­views the pol­icy.

The White House had no com­ment af­ter the court’s de­ci­sion, but press sec­re­tary Robert Gibbs has been fend­ing off ques­tions about Mr. Obama’s pol­icy, say­ing the pres­i­dent re­mains com­mit­ted to pass­ing a bill through Congress.

“To get fun­da­men­tal re­form in this in­stance re­quires a leg­isla­tive ve­hi­cle,” Mr. Gibbs said in May.

Mr. Frank and other ad­vo­cates said they al­lowed Mr. Obama some time to deal with the na­tion’s econ­omy and leg­isla­tive pri­or­i­ties but now are looking for signs of com­mit­ment from him and from Congress.

“The time to re­peal ‘don’t ask, don’t tell’ is now,” said Hu­man Rights Cam­paign Pres­i­dent Joe Sol­monese. “The Supreme Court’s de­nial of a writ of cer­tio­rari in this case, and the up­com­ing hear­ing to dis­charge Lt. Dan Choi, is only fur­ther proof that this law is not work­ing and is putting our na­tional se­cu­rity at un­nec­es­sary risk.”

Rep. Joe Ses­tak, Penn­syl­va­nia Demo­crat, said Congress and the pres­i­dent “should move on into this area and try later this fall and to move this for­ward as an is­sue we can put be­hind us.”

“I do be­lieve that on his own the pres­i­dent in an ex­ec­u­tive or­der could po­ten­tially go and do this, but I think the Congress should bear that re­spon­si­bil­ity also,” said Mr. Ses­tak, a re­tired Navy ad­mi­ral who is the high­est-rank­ing for- mer ser­vice mem­ber in Congress. “We’re co-equal mem­bers of the gov­ern­ment.”

Elaine Don­nelly, pres­i­dent of the Livo­nia, Mich.-based Cen­ter for Mil­i­tary Readi­ness, which sup­ports the law pro­hibit­ing gay troops from serv­ing openly, said there isn’t enough sup­port in Congress to act and that Mr. Obama would be mak­ing “a se­ri­ous breach of trust be­tween the com­man­der in chief and the troops he leads” if he tries to act uni­lat­er­ally.

“Th­ese gim­micks of high­light­ing hu­man in­ter­est sto­ries or com­ing up with this lu­di­crous plan to sus­pend the law. That’s not go­ing to cut it,” she said.

More than 1,000 re­tired gen­er­als and ad­mi­rals signed a let­ter ear­lier this year sup­port­ing the ban on gay troops serv­ing openly, and said a re­peal could “even­tu­ally break the All-Vol­un­teer Force” that is the core of the U.S. mil­i­tary model.

“Ev­ery­thing has stalled, and I think it’s be­cause of the flag and gen­eral of­fi­cers let­ter. Their open let­ter has to­tally changed the at­mos­phere,” Mrs. Don­nelly said.

More than 1,000 re­tired gen­er­als and ad­mi­rals signed a let­ter ear­lier this year sup­port­ing the ban on gay troops ser ving openly, and said a re­peal could “even­tu­ally break the All-Vol­un­teer Force” that is the core of the U.S. mil­i­tary model.

She pointed to com­ments from Rep. Bar­ney Frank, Mas­sachusetts Demo­crat, who in April told Roll Call news­pa­per that Congress will not con­sider the is­sue un­til next year, as ev­i­dence that re­peal will be dif­fi­cult.

Pres­i­dent Clin­ton in 1993 called for a pol­icy to end the ban on gays serv­ing in the mil­i­tary in what be­came known as “don’t ask, don’t tell.” But Congress later that year also acted, pass­ing leg­is­la­tion that pro­hibits openly gay ser­vice mem­bers.

The Ser­vice­mem­bers Le­gal De­fense Net­work says nearly 13,000 troops have been dis­missed un­der the pol­icy since 1994.

The de­bate over Mr. Obama’s pow­ers to change the pol­icy has raged this year.

The Palm Cen­ter — a think tank based at the Uni­ver­sity of Cal­i­for­nia at Santa Bar­bara spe­cial­iz­ing in re­search in the ar­eas of sex­u­al­ity and the mil­i­tary — is­sued a re­port ear­lier this year ar­gu­ing that fed­eral law al­lows the pres­i­dent to sus­pend laws that in­ter­fere with na­tional se­cu­rity. In lieu of that, the Palm Cen­ter said, Mr. Obama could di­rect the mil­i­tary not to make any more find­ings of ho­mo­sex­u­al­ity of ser­vice mem­bers.

Mr. Ses­tak said he doubted any change would af­fect unit co­he­sion or mil­i­tary readi­ness. He said younger troops don’t find serv­ing with openly gay troops as much of an is­sue. Once the pol­icy is scrapped, he said, peo­ple will look back and won­der why there was so much fuss about it.

But Mrs. Don­nelly said the re­tired of­fi­cers’ let­ter in sup­port of the ban shows the detri­men­tal ef­fects of over­turn­ing the pol­icy.

De­spite the court’s de­ci­sion not to hear the case, it could be asked to hear an­other case in which the 9th U.S. Cir­cuit Court of Ap­peals ap­plied a stricter stan­dard in re­view­ing the pol­icy.

Also, the is­sue could flare again when the next round of num­bers is re­leased show­ing how many troops have been dis­missed as a re­sult of the pol­icy un­der the Obama ad­min­is­tra­tion.

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