Marine Staff Sgt. Eric Alva might be best known as the first American soldier wounded in Iraq, when a landmine took his right leg in March 2003. But in working with the Human Rights Campaign since 2006, he’s now know for being a gay former servicemember out there spreading the HRC gospel. Like how he would hate to see President Obama issue an executive order killing Don’t Ask Don’t Tell — because doing so would silence the discussions about the legality of the law.
The comments from Alva, 37, came during a speech Friday in front of the Gay and Lesbian Association of San Antonio College (he’s a San Antonio native). We only have this paraphrasing to go on:
Sgt. Alva, in addressing the recent injunction, Obama’s appeal of the decision and the fact that Obama has continued to refuse to sign an executive order ending the policy, stated, “I do not want Obama to sign an executive order, ending don’t ask, don’t tell.” He went on to explain that, if the president chose to end the policy it would put an end to the discussions; discussions he believes are important in light of the recent and highly publicized LGBT youth suicides.
An executive order would end discussion on DADT? No. Nor will Congress killing the law, or a court upholding its injunction against the law’s implementation. The “discussion” — or debate or dialogue or whatever term you prefer — is not going to die anytime soon just because we witness a change in the law. “Discussion” will rage on as long as we have politicians like Sen. John McCain who use gay troops as political wedge issues. In passing the Matthew Shepard Act, “discussion” about hate crimes — from the actual committing of crimes to the legality and ethics of adding additional penalties for the motivation behind a crime — didn’t go anywhere. Knocking down Prop 8 will not end discussion about marriage equality. The second coming of Jesus will not end discussion about whether he is the lord and savior.
If the best argument for Obama not killing DADT with a pen stroke is fearing it’ll end debate on the issue, by all means, let the man sign, because we’re going to be having this discussion for at least the next decade. In the meantime, how about we keep the conversation going while gay soldiers aren’t shamed into staying quiet?
Or maybe Obama’s Justice Department could go ahead and appeal the DADT ruling … but request the court kill the law by arguing it is unconstitutional.
That’s one strategy being floated by former U.S. Solicitor General Walter Dellinger: The theoretical rule is that a law that infringes on liberty …is only constitutional if it advances a governmental purpose. Now, the Solicitor General would assume that Congress can decide the military purpose and here Congress has decided that it advances a military mission…but the President, as Commander in Chief, can make his own judgment that it is not necessary and if he concludes as he has said that it’s harmful to the national defense, then in his belief he doesn’t have to give deference to the political branch, he is a political branch.”
It’s a strategy at least twice employed by George H. W. Bush’s administration — and for Obama, it could have a political upside, too. Wonkroom summarizes:
“I think there are enough instances where the government has done that,” he said. “This is a middle ground between unilaterally not complying with the law and going in an actually defending, arguing that it’s constitutional.” He explained that in this way, the government would also avoid making “malicious” or “homophobic” arguments that are often made by certain conservative organization. “Once you get rid of those arguments, you get down to making arguments that are sort of weaker and weaker and you can be accused by critics of the administration from the right of throwing the case not doing the job. It’s almost better to be candid about it and say…. we’re just going to flat out say, there is not a sufficient government justification for this discrimination and burden….[but] we’re going to give the court the last word.”
Then again, when President Bush Sr. tried it, both times the Supreme Court voted 5-4 to uphold the law.