Will Obama Defend “Don’t Ask, Don’t Tell?”

Yesterday, U.S. District Court for the Central District of California Judge Virginia Phillips declared the military’s “Don’t Ask, Don’t Tell” policy unconstitutional. In her ruling—which comes on the heels of another federal judge’s decision to overturn California’s ban on same-sex marriage—Philips said that the policy, which has led to the discharge of more than 13,000 service members, violated the rights of gays and lesbians to free speech and due process. “The Act,” Phillips wrote, “discriminates based on the content of the speech being regulated. It discriminates between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian service members, which is banned, and speech on those subjects by and about heterosexual service members, which is permitted.”

Judge Phillips concluded that the military’s own actions—routinely delaying the discharge of gay and lesbian service members until after their deployments had ended—showed that gays and lesbians were effective soldiers. Phillips found that the policy had harmed our military capabilities, by hampering recruiting efforts and requiring the discharge of service members with what the military considers “critical skills,” like fluency in foreign languages, expertise in counterterrorism or weapons development, and medical training. And Phillips noted that this had led to the military to lower its standards and recruit people whose criminal records, poor education, or physical condition would otherwise have disqualified them.

The case against “Don’t Ask, Don’t Tell” was brought by the Log Cabin Republicans. While Republicans have generally been more resistant than Democrats to lifting the policy—although it should be noted that the policy originated under President Clinton, and that President Obama has dragged his feet about pushing for its repeal—the Log Cabin Republicans argue that denying equal rights to gays and lesbians is incompatible with Republican ideals.

The ruling puts the Obama administration in a difficult position. It now has to decide whether to appeal the court’s ruling before the injunction against the policy takes effect. President Obama has said the policy is “discriminatory” and pledged to push for its repeal. The Department of Justice is normally responsible for defending federal statutes, but did not seem to try very hard to defend the policy in court, calling no witnesses and offering no defense beside the argument that the court should defer to Congress. Even so Obama has so far not pushed hard for repeal, and many LGBT groups have been frustrated with his lack of effort on their behalf. The policy itself is not particularly popular—an ABC/Washington Post poll earlier this year found that 75% of Americans say that openly gay or lesbian people should be allowed to serve in the armed forces—but Obama has generally tried to avoid taking stands on divisive social issues and may not want to take the issue on before November midterm elections.