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Why fight it?

The Obama administration is acting hypocritically with regard to a federal court’s invalidation of the military’s “don’t ask, don’t tell” policy.

President Obama continues to state that he opposes the policy and seeks its end. Just last week, he told a town hall meeting in Washington that no one should have to “lie about who they are in order to serve.” At the same time, Secretary of Defense Robert M. Gates asserts that there will be “enormous consequences” to the military if gays and lesbians are immediately allowed to serve openly.

The administration has a simple way to end this offensive and harmful policy: don’t appeal a recent federal court ruling that declared it unconstitutional and enjoined its enforcement.

Nothing in the Constitution or any other law requires the U.S. government to defend a law in court or to appeal an adverse ruling. Executive officials at all levels of government have discretion as to how, if at all, to proceed in court. All government officials take an oath to uphold the Constitution, and it would be inconsistent with that oath to require them to defend a law that they believe is unconstitutional.

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U.S. District Judge Virginia A. Phillips presided over a trial in her Riverside courtroom in which both sides had the opportunity to present evidence concerning “don’t ask, don’t tell.” The government offered no evidence whatsoever that allowing openly gay and lesbian individuals to serve in the military causes any harm. Phillips reviewed every study done on the subject and the testimony of several witnesses. In the end, she concluded that an immediate end to “don’t ask, don’t tell” would not cause any problems.

Phillips found that “don’t ask, don’t tell” is an unconstitutional restriction of freedom of speech. The most basic principle concerning the 1st Amendment is that the government generally cannot punish speech based on the content of the message, allowing some messages but not others. Phillips explained that “don’t ask, don’t tell” does exactly this, precluding some service members from discussing aspects of their lives that others are allowed to talk about freely. By its very terms this is a content-based restriction on speech. Moreover, “don’t ask, don’t tell” is discrimination based on sexual orientation. From 1993 to 2009, 13,000 gay and lesbian service members were dismissed based on this policy.

Now, however, a high-level Obama administration official, Clifford L. Stanley, who is undersecretary of Defense for personnel and military readiness, has filed a declaration asserting that ending “don’t ask, don’t tell” would “irreparably harm our military and the national security of the United States.” But he offers no evidence for this conclusion, and none was presented in Phillips’ courtroom. It is inexplicable why an administration committed to ending “don’t ask, don’t tell” would file such a statement in federal court.

It also is inexplicable why the administration sought to stay Phillips’ ruling (which was granted on Wednesday), and is appealing it. The judge’s nationwide injunction, if allowed to stand, would have ended “don’t ask, don’t tell” once and for all.

Gates says that it is better to have the policy ended by Congress than by the federal courts. But ending the policy through congressional action is at best uncertain because Senate Republicans have successfully filibustered an attempt to do this. There is no reason to believe that Democrats would be more successful in ending a filibuster in December, or after January, when there are likely to be even fewer Democratic senators.

By contrast, not appealing Phillips’ nationwide injunction would have provided a certain end to the policy. In fact, allowing the ruling to stand might have provided the political cover necessary for Congress to repeal this law because it would be doing no more than changing the law in compliance with a federal court order.

Last week, Obama promised again that he would instruct the Defense Department to stop issuing apocalyptic statements about how ending the policy will cause irreparable harm to national security. The exclusion of gays and lesbians from the military is wrong, and the president should have the courage to stand behind his rhetoric and finally end a long and tragic history of discrimination.

Erwin Chemerinsky is dean of the UC Irvine School of Law.


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