View From Washington

View From Washington

BY Kerry Eleveld

September 10 2010 5:05 PM ET

The president of the United States now appears to be on the wrong side of a trend among his fellow constitutional law scholars when it comes to discrimination against lesbian, gay, bisexual, and transgender people.

Those who are tasked with following and interpreting the intent and meaning of this country’s Constitution are now resoundingly ruling that the government has no reasonable rationale for discriminating against LGBT Americans in situations ranging from marriage to military service.

As The New York Times wrote Friday morning after federal district court judge Virginia A. Phillips ruled the “don’t ask, don’t tell” policy unconstitutional:

“The decision is among a number of recent rulings that suggest a growing judicial skepticism about measures that discriminate against homosexuals, including rulings against California’s ban on same-sex marriage and a Massachusetts decision striking down a federal law forbidding the federal government to recognize same-sex marriage.”

News of the decision came late Thursday after Politico dropped a bombshell in its Morning Defense section earlier that day regarding the plausibility that the Senate will act on the Defense authorization bill that houses DADT repeal:

“WILL THEY OR WON'T THEY? — The chances that the Senate will take up the National Defense Authorization Act before the next recess are declining by the minute; ‘contingency planning’ is now the operative phrase. Defense industry and lobbying sources are scrambling to prepare for any number of possible courses of action that are dependent on congressional leadership, and, to some extent, election poll results.”

The piece also included a renewed threat from a spokeswoman for Sen. John McCain that “the senator has not backed away from his objection to bringing the defense authorization bill to the floor.”

None of that sounded particularly promising, especially after Senate majority leader Harry Reid’s spokesman seemed slightly less bullish about the bill’s chances for a vote when asked about the matter this week.

“It’s on the list of things we would like to do in the next few weeks,” Jim Manley told The Advocate.

By contrast, last month Manley said it would be “among the first things we do when we get back.”

Sure, one could argue it’s splitting hairs, but read in context, there’s good reason for repeal advocates to be alarmed. If the bill is not voted on between next Monday when Congress returns from recess and October 8 (a period that may actually only yield about two voting weeks in the Senate), it may still have a chance of passage during the lame-duck session after the midterms, but that chance will be greatly diminished. Quite honestly, political observers of the Hill vary wildly in their prognostications, from “zero” chance to “50-50,” each of which strikes me as too low and too high, respectively. But if nothing else, it’s fair to say the odds aren’t particularly good.

So what exactly stands in the way of this bill making it to the floor? Some combination of timing, strategy, and sheer lack of guts.

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