Don't Ask Don't Tell Don't Make No Sense-- When Will It Be Repealed?

JB

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

Because all of the Democratic candidates are opposed to it, one presumes that don't ask don't tell will be eliminated in the next Administration if a Democrat is elected and the Democrats retain control of both Houses of Congress. In general the Republican candidates have supported keeping it (I don't know if Giuliani has spoken on the question recently). But that does not mean that a Republican President won't sign a bill repealing it, especially if the war in Iraq continues and the military needs all the soldiers it can get. If the military signals it wants a change, I believe that both Congress and the President will go along.

What about a court challenge? Well, although in my opinion, the law is pretty clearly unconstitutional, it was upheld repeatedly by lower federal courts in the years immediately after its passage. Of course, attitudes have changed, but these lower court decisions are still there; the Supreme Court would probably have to get involved. Although the Supreme Court might consider the constitutionality of don't ask don't tell in the future, it would be reluctant to take a case if it was not clear that the military had changed its mind on the policy. That is true even though the swing vote would be the author of Lawrence v. Texas, Anthony Kennedy. All of which means that if a Democrat is not elected President in 2008 (leading to a repeal), the military itself will likely decide when don't ask don't tell will be replaced by signaling that it has no interest in maintaining the policy any longer.

Don't ask don't tell is a good example for analyzing how constitutional law changes. Much constitutional change occurs because social attitudes change that eventually get reflected in law. When that happens, change usually comes first not in federal court decisions but in decisions by the political branches. Federal courts are usually the last actors to recognize changed circumstances and attitudes and act on them. That is why I say that courts are bad at tackling, good at piling on. Where the military is concerned, federal courts are particularly deferential. Bill Clinton, sensing changes in views on gays, tried to abolish the ban on military service early in his presidency but was forced to compromise, in part because lacked the political capital to succeed and in part because he handled the matter badly. The lower federal courts ratified this compromise, which exists to this day. Since that time, social attitudes have changed even more decidedly toward equality for gays, and the Supreme Court has confirmed this shift in the 2003 Lawrence decision. That is, Lawrence followed the trend of public opinion, rather than getting ahead of it. (It's also worth noting that federal courts have not been asked to rule on the constitutionality of same-sex marriage; advocates have pursued change in state courts and state legislatures. If federal courts ever decide in favor of same-sex marriage, it will likely be many years down the road.)

Given these facts, it is a fair bet that the end of don't ask don't tell will probably come from the political branches before the Supreme Court has a chance to pass on it. The Supreme Court will only get involved if the policy lasts for a very long time after the military has effectively signaled that it will not enforce it, and Congress fails to respond.

UPDATE: The comment below about the pending First Circuit case poses an interesting possibility: If the First Circuit were to hold the policy unconstitutional it would create a split in the circuits, which would greatly increase the chances of Supreme Court review. But if the Supreme Court did accept cert, it would probably not hear the case until after the 2008 election. This might well inject the issue into the 2008 campaign, although I am not certain that the Republican presidential candidate would want to make as big a deal out of it as the Republicans did with the gay marriage issue in 2004. It strikes me that the issue of gays in the military has a somewhat different meaning to the public than the issue of gay marriage, and arguing against gay rights in this context would not prove as advantageous as a wedge issue. In any case, the position of military officials would remain crucial, as it proved to be in the Grutter v. Bollinger case on affirmative action.
Posted 9:31 AM by JB [link]