Okay, So What The Heck Is The Status Of DADT Right Now?

The problem with that question is that even the White House and the Pentagon don’t seem to know, but let’s take a stab.

Don’t Ask Don’t Tell is unconstitutional, U.S. District Judge Virginia Phillips ruled this week. She gave the Department of Justice 60 days to file notice of appeal — and the government’s attorneys are expected to do so imminently. Along with that, DoJ is likely to request a stay in the ruling until its appeals are exhausted, but that’s yet to happen.

Which means, for all intents and purposes, DADT is dead right now.

Except: The Pentagon is sending mixed messages about whether they’re going to hold up that court ruling. Despite a worldwide injunction against DADT, gays are being turned away at recruitment offices. And while Obama says the law is discriminatory, even his press secretary doesn’t know if he thinks it’s unconstitutional, and he continues saying he cannot, “with the stroke of a pen,” kill the law.

Which means he’s sticking with his strategy of legislative repeal. Except that effort appeals stalled in the Senate, and wholly unlikely if Republicans pick up any addition seats in November.

But: The Pentagon indicated in an internal memo that all military officers must immediately halt DADT investigations and dismissals in compliance with the judge’s order. A Pentagon spokesman confirmed “the Department of Defense will of course obey the law.” That is, DADT is dead to Defense Department. Until: DoJ decides to appeal the ruling.

Which, um, DoJ says it is going to do. Which means the Pentagon will, uh, heed DoJ’s appeal and ignore the ruling?

That part is unclear. So unclear, then, that no gay soldier who wants to avoid discharge should come out. Which is the same place we were when all of this confusion began.

And given Defense Sec. Gates is running the DADT show, with Obama privately letting him steer the repeal effort, we know we’re looking at a day when gay soldiers can serve openly “down the road.”

SHOCK: Defense Sec. Gates to Congress: Do Not, Under Any Circumstances, Repeal DADT

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  • Cam

    Look, the White House Rep speaking at the HRC dinner showed us EXACTLY what the White House thinks of gays. She said it was a “Lifestyle Choice”.

    This is what a rep from the White House said at a Gay sponsored event knowing that her audience was gay.

    There isn’t any other reason to keep appealing other than bigotry.

    first the White house lied and said that they HAD to defend any Federal Law, that lie was exposed when a list of cases not defended by the previous four presidents was put out there. Additionally all of those presidents joined in opposing Federal laws they didn’t like.

    Now the line from people trying to defend the White house is

    “But the economy is in bad shape and that is taking attention away.”
    or even better and more ridiulous.
    “This ruling will allow states to keep DADT in recruitment and only a Congressional law will change that.”

    Um, no idiots, when the Federal Courts make a decision that is what KEEPS the states from having their own laws have an effect. Brown v. Board of Ed didn’t let Alabama continue to segregate.

    It is frightening that people are so loyal to a particular politician that they will lie and make up any excuse to defend outright bigotry.

  • John (CA)

    There is no DADT until Monday.

    That is when an emergency hearing is scheduled in Riverside, CA with DOJ trying to convince Judge Virginia Phillips to stay her own ruling while it prepares to appeal. If Phillips refuses to grant a stay, then the Obama administration will go straight to the Court of Appeal in San Francisco. They have probably already prepared a brief for this eventuality and will file it Monday afternoon or Tuesday at the latest. The appeals court will get back to them by the end of the work week.

    Poor straight soldiers might be subjected to a whole week without discharges.

    The horror, the horror.

  • Brutus

    Wait, you mean it takes time for people to adapt to changed circumstances? And that if you follow, in today’s 24-hour news cycle, every moment of every meeting, there are going to be periods of time when things are unclear?

  • Brutus

    The really sad part about all this is, we should be celebrating the fact that courts have held Prop 8, DOMA (section 3, at least), and DADT unconstitutional. All of them. Yes, there are appeals pending, but they haven’t happened yet. Let’s cross that bridge when we get there.

    The fact that people here keep using each of these things as a platform simply to bitch creates a toxic atmosphere that poisons and obscures those victories.

    I don’t care how they were obtained. It happened. Let’s all try to be a little more optimistic. If these all stand, we’ve got nothing left to do except knock out the rest of DOMA and pass ENDA.

  • Kev C

    Regardless of pending actions, DADT is currently illegal. Any appeals or stays must be granted by the court (expected monday). As yet, such a grant is not given and DADT is currently illegal.

  • Tony O

    We need to support Robin McGehee and send donations to GetEqual.

    Most of you pussies are too afraid to get in the streets and take action. Robin understands we need to threaten to win. She has the President running scared and we need her to continue to put pressure on politicians. She has accomplished a lot for us and we should be thankful.

    Donate something, anything. Robin is our new leader. Who knew it would be a lesbian Mom to finally show some “balls.”

    Keep it up Robin! We don’t need HRC or even Democrats, we need more anger.

  • naswiflyer

    In the vid clip, POTUS mentioned that his position is different from President Truman’s ability to sign an Executive Order. If I heard him correctly, he mentioned that Congress limits his ability to sign an Executive Order to end DADT. Can someone provide further background to what extent has Congress limited the President’s ability to issue an Executive Order?

  • the crustybastard

    ARTICLE SAID: Which means he’s sticking with his strategy of legislative repeal. Except that effort appeals stalled in the Senate…

    ARTICLE SHOULD HAVE SAID: “Which means he’s sticking with his strategy of ensuring that the ‘repeal effort’ gets scuttled in Congress.”

    Oh, and it was Candidate Obama who advocated “repeal.”

    President Obama supports “change in a sensible way.”

  • Brutus

    @Tony O: We do NOT need more anger. I refuse to contribute to the juvenile wave of public debate in the vein of the Tea Party.

  • counterpoll

    TonyO = sockpuppet for AndrewW, using his special brand of “reverse psychology”.
    AndrewW used similar tactics during GetEqual’s most public demonstrations earlier this year, along with puppets “JasonActivist” and “JustinActivist.” Same vocabulary, punctuation style and typography.

  • JumpingUp

    Brutus : To a great extent the Tea Party groups are correct. And we’re right too.

  • Brutus

    @JumpingUp: Whether the Tea Party is correct has no bearing on how they articulate their position.

  • ElmerFudge

    @naswiflyer: Nas, the difference between Truman ending discrimination against blacks and Obama ending DADT is this…Truman was only up against an internal military policy (think of your handbook of rules/regulations at your office). As “the boss” of the military it was a simple matter for him to change that policy.

    DADT is LAW. It’s part of the constitution. Obama can’t (as is so often stated) stop discharges “with the wave of a pen.” I don’t know about you, but I don’t want a president who choses which laws he’s going to follow/enforce and which he isn’t. That approach is fine and dandy if you agree with the party in power. Otherwise, you get your “Watergates” and “Trail of Tears.”

    What I find perplexing about Obama’s insistance that the policy “will end on my watch” is this: how does he know that?!? The Senate has already shown they’re unable/unwilling to strike down the law (Obama’s preferred method of ending it). Is he counting on the Supremes to do the job? If so, that’s a pretty steep gamble given the make up of this court.

  • Michael @

    @naswiflyer & ELMERFUDGE:

    First, to FUDGE: how can I put this politely? How about: you don’t know what the fuck you’re talking about.

    The mere passage of ANY law doesn’t make it “part of the constitution”!!!!!

    TO ALL: By issuing an Executive Order freezing gay discharges pending repeal, Obama would NOT be defying a law, he would be FOLLOWING one.

    As just reiterated by Aaron Belkin, the director of the Palm Center, from the second he was sworn in as President, Obama has had the unequivocal, unilateral power under a law passed by Congress in 1983 to suspend any or all gay discharges in the name of national security. That law is 10 United States Code § 12305Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation, and it has already been ruled Constitutional by the US Supreme Court. It reads, emphasis mine:

    “Notwithstanding ANY other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend ANY PROVISION OF LAW relating to promotion, retirement, OR SEPARATION applicable to ANY member of the armed forces who the President determines is essential to the national security of the United States.”

    If Congress had wanted to exclude gays, they could have, but note the wrote “ANY member of the armed forces.” Nor does it matter that the ban was not yet an actual law then. “Notwithstanding ANY other provision of law”….NOT “except for any that might be passed in the future.”

    The President himself said in June of 2009 that such discharges “weaken national security.”

    Over the last year, no less than Senate Majority Leader Harry Reid, Speaker of the House Nancy Pelosi, and Senate Armed Services Committee Chair Carl Levin have asked him to suspend discharges pending “repeal,” along with 77 members of the House who asked him by letter to stop discharges more than a year ago. Need one point out that, in addition to the personal reputations associated with their positions of leadership, all members of the House and Senate swear to uphold and defend the Constitution and would hardly urge him to take such an action if they didn’t feel it legal?

    Sure, a few professional homohating asshats like McShame would wet themselves, but overturning a Presidential Executive Order requires a supermajority vote which would never happen.

    And the attempt wouldn’t be supported by the majority of Americans who support open service, including the average Republican, “conservative,” and “weekly church goer.”

    And, NO, saying a future President could reverse it is NOT an excuse for not doing it, for not saving as many from being discharged as possible for as long as possible which would at the same time demonstrate to that minority of Americans opposed to open service that the sky did not fall. As Belkin has said, once proven non-problematic, there’s no way a future President could put the toothpaste back in the proverbial tube.

    Far from the shameless way the Obama Mafia and Pentagon bigots have been acting, as if it were something unheard of, the practice, known as “stop-loss,” even before 12305 was passed, has, at the discretion of the DoD, been applied to gays at various times going all the way back to and including WWII after the formal ban was first established.

    PS: One of the reasons we’re in the mess we’re in is because many of the gay reporters our community depends on for facts are so bad at their jobs. For example, The Advocate’s Kerry Eleveld and MetroWeekly’s Chris Geidner are again asking this week if Obama thinks DADT is “constitutional” when he made it clear he thinks it is over a year ago.

    In an interview with Anderson Cooper broadcast on July 13, 2009, he said [in a sleazy, disingenous dodge of Cooper’s question about why he doesn’t order a freeze if he thinks DADT is so bad]:

    “If Congress passes a law THAT IS CONSTITUTIONALLY VALID, then it’s not appropriate for the executive branch simply to say, we will not enforce a law.”

    Obama may not be the “Constitutional scholar” his shills claim he is, but he’s informed enough to know that no law is considered definitively “Constitutional” until the Supremes have declared it so, and they have never ruled on DADT. [And, even then, they could change their minds years later as they did about slavery and sodomy.”

    He was simply shuckin’ and jivin’ again, like he did on MTV yesterday? Why? For the same reason a dog licks its ass – because he can.


  • Mark in Dallas

    I think we should all wait until we hear what Robin McGehee has to say. She is leading this effort now. The President is afraid of her and that was evident after the Miami Party that totally fucked up Obama’s day. I think Robin and GetEqual already has Obama wrapped around her logic, I mean finger. We should let her lead us. We should let her be our MLK. She don’t got no “dream” but da bitch got some balls.

  • Brutus

    @Michael @ You’ve got it backwards there, Mikey. No law is definitively UNconstitutional until the Supremes say so.

    You should consider going to law school, it might clear a lot of this up for you.

    Here’s what Obama said on the campaign trail: “I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary.”

    Stop focusing on the first sentence to the exclusion of the second simply because it’s what you want to hear.

  • Michael @


    Ah, Brutus, still writing with your head stuck up Obama’s ass. Applause for the talent of “touch typing.”

    Typical of pathetic Obambots, you’re arguing from the absurd while misrepresenting the facts. Nowhere did I write that a law is ipso facto “UNconstitutional” until the Supremes rule on it. But Your Lord & Savior Barack Christ DID asserted that the ban IS “constitutional” even though, again, they’ve NEVER determined that…and HE has been to law school. In other words, again, he’s just licking himself.

    When not arguing from the absurd, or outright lying, Obambots resort to distortion as you did in suggesting that Obama’s ABILITY to NOT “compromise on [his] commitment to equal rights for all LGBT Americans” IS DEPENDENT ON convincing others of whatever. Were that true, he is too INCOMPETENT to be President and everyone, including you, should be demanding his resignation.

    Now let’s examine what else he promised in that 2008 job application.

    “Equality is a moral imperative. … And as president, I will place the weight of my administration behind the enactment of the Matthew Shepard Act to outlaw hate crimes…”

    FACT: He never did. He posed for a photo with Judy Shepard [after cancelling an actual discussion with her]; issued a three sentence statement of support a couple of days before the vote; and signed it. If THAT’s how “weight” was defined no one would ever feel the need to diet again!

    “…[and behind] a fully inclusive Employment Non-Discrimination Act to outlaw workplace discrimination on the basis of sexual orientation and gender identity.”

    WE’RE STILL WAITING, Mr. Moral Imperative!

    “As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws.”

    STILL WAITING, Mr. Moral Imperative!

    “I support the complete repeal of the Defense of Marriage Act (DOMA).”

    STILL WAITING, Mr. Moral Imperative!

    “Federal law should not discriminate in any way against gay and lesbian couples which is precisely what DOMA does.”

    Then why, Mr. Moral Imperative, is Lambda Legal SUING you because you refuse to obey a the order of a CIRCUIT COURT judge to allow federal employee Karen Golinski to add her wife to her medical insurance AT NO COST TO THE GOVERNMENT and even though the judge specifically stated that it would NOT be a violation of DOMA?

    “I have worked to improve the Uniting American Families Act so we can afford same-sex couples the same rights and obligations as married couples in our immigration system.”

    STILL WAITING, Mr. Moral Imperative!

    “We should lift the federal ban on needle exchange, which could dramatically reduce rates of infection among drug users.”

    STILL WAITING, Mr. Moral Imperative!

    “Americans are yearning for LEADERSHIP that can empower us to reach for what we know is possible. I believe that we can achieve the goal of full equality for the millions of LGBT people in this country. To do that, we need LEADERSHIP that can appeal to the best parts of the human spirit. JOIN WITH ME, AND I WILL PROVIDE THAT LEADERSHIP.”

    STILL WAITING, Mr. Moral Imperative!


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