Activists Question Lack of Action on DADT

Dixon Osburn, a Washington lawyer and former executive director of SLDN, said he studied the issue thoroughly while he was with the organization.

"We concluded that there was little legal precedent that definitively ruled whether the Constitution gave the president or Congress the plenary authority to regulate military personnel matters," he said, adding that the Constitution gives Congress the right to raise armies while it gives the president the right to nominate certain personnel for promotion.

"So, could the president issue an executive order concerning 'don't ask, don't tell?' Yes. Could Congress bring legal action challenging the president's executive order? Yes," he said.

The other argument often leveled at the executive order option is that it's impermanent and subject to the whims of whoever sits in the Oval Office. "A new president four or eight years from now could easily come in and reverse it," said SLDN's Sarvis.

But Belkin thinks incrementalism is exactly the right approach and would be harder to undo than people argue.

"It would be operationally and politically impossible to reverse an executive order once people see gays serving openly and legally," he said, noting the incredibly high polling numbers for allowing gays to serve in the military. "It's much more difficult to take away a right than to provide a right," he added.