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View From Washington Do or Die


Every once in a very long while, Robert Gibbs goes out of his way to make a point, and it's worth noticing when he does.

So when Gibbs employed the word "odd" to describe the Justice Department's use of Colin Powell's 17-year-old testimony to defend the constitutionality of "don't ask, don't tell" in their latest brief, my ears perked up.

Seems as though the way the DOJ wrote that brief flowed from being a discussion thread for Politico,, and Rachel Maddow right into the walls of the White House. If that were not the case, Gibbs never would have ventured into that territory in response to what was a more general question about whether Justice is too politically tone-deaf on LGBT issues.

It seems the president is not particularly excited about perpetuating a line of defense for the gay ban that might actually harm efforts to repeal it. Perhaps the White House and the DOJ will beef up the vetting process for those briefs before they blindside Obama in the future.

Otherwise, the president may have to suffer through a few more DOJ brief flaps, given the way things are unfolding at the Pentagon. Not only has Defense secretary Robert Gates clearly stated that he believes Congress should wait to repeal the gay ban until the department finishes its internal review in December, but we got our first glimpse last week of at least one of the processes it's using to survey the troops, courtesy of the Associated Press.

Let's just say it didn't seem like a methodology that would fully encourage honest participation from every sector of the armed forces. Apparently, Defense officials gathered about 350 troops in an auditorium and asked them to chime in with specific concerns they had about ending "don't ask, don't tell." Granted, there's no perfect way to take the pulse of service members, but conducting one-on-one interviews seems like it might elicit more honest answers, and anonymous polling of a randomly selected representative sample seems like another good option.

Reading the AP piece, one had to wonder what it was like to be a closeted gay soldier in that auditorium, or how likely straight allies may have been to pipe up with a note of concern for gay service members.

Here are some of the discussion points, according to the AP: "Attendees of the Tuesday session said that one female Marine stated that bunking with a lesbian would be the same as being told to share a room with a man. A soldier said he didn't want to wade into the political debate and that he would follow orders. Another service member asked if a gay service member who gets married -- now forbidden under law -- would receive military family benefits."

Fascinating. Especially the woman who said sharing quarters with a lesbian would be no different than doing so with a man -- this of course assumes that she hasn't already bunked with a lesbian. That premise falls into the "ignorance is bliss" category since lesbians are already serving in the military, as are gay men; many of them just aren't visible to their peers at the moment. Lifting the ban simply means that all service members would have a better chance of knowing who is gay and who is not -- it does not mean that suddenly there would be gay soldiers in the ranks where there had not been before.

As Congress returns to work this week, all LGBT eyes will be on two agenda items: the Employment Non-Discrimination Act and DADT, with the Domestic Partnership Benefits and Obligations Act running third.

And a key question is whether one major obstruction to progress, especially on ENDA, could be the House Democratic caucus. The Hill newspaper is already reporting this morning that a Democratic leadership aide said there would be "no more tough votes" during the April and May legislative work period.

This jibes with what one Capitol Hill insider told me about Speaker Nancy Pelosi wanting to "take the temperature" of the feedback Democratic House members got from constituents during recess in the aftermath of their health care vote. The Democratic caucus meeting on Tuesday evening will surely center on this topic, but it seems some Democratic leaders are already starting to draw lines in the sand and send signals.

What isn't clear is whether ENDA falls into the category of "tough votes" with 198 cosponsors while 216 votes are needed for passage. Rep. Tammy Baldwin has said the votes are there; all three gay elected members have gone on record saying the committee and full House vote are likely to happen shortly after return from recess.

A spokesman for the speaker pushed back on the Hill article and the notion that leadership would take a pass on difficult issues.

"The speaker has repeatedly said that every vote is a heavy lift," Drew Hammill wrote me. "Congress will continue to work to address the needs of the American people."

Nonetheless, we are most certainly entering what I think is fair to frame as a do-or-die legislative work period on LGBT issues in April and May. As political pundit Nate Silver reminded us Friday, the prospects for Dems keeping control of the House after the midterms is increasingly grim, so whatever equality issues are not tackled during this Congress may simply remain stalled during Obama's presidency (or at least during his first term).

Swift passage of ENDA in the House gives the bill a shot at life in the Senate. Meanwhile, the Senate Armed Services Committee's consideration of the Defense Department authorization bill, which is where a DADT repeal measure will either succeed or fail, is likely to be at the end of May.

And despite the swipe at Justice last week, the White House has been MIA on both pieces of legislation ever since President Obama's "don't ask, don't tell" mention in January's State of the Union address.

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Kerry Eleveld