Awaiting Our Fierce Advocate

COMMENTARY: As we all know, the Senate was to vote last week on a defense bill that would have brought repeal of "don't ask, don't tell" closer to a reality. The bill failed to overcome a GOP-led filibuster, thus continuing this policy of discrimination and leaving thousands of men and women still at risk of being discharged. With Republicans all but certain to make substantial gains in the November general election, the prospects for legislative repeal prior to 2013, when the Congress after next takes office, look quite dim.

As discouraging as this loss was for those of us who wish to end DADT, we must acknowledge that it has radically reshaped the landscape of the debate over the policy. Since Congress has reached an impasse, we ought to take stock of both the path to repealing "don't ask, don't tell" and the obstacles that lie along that path -- a path that can ultimately end at President Obama's desk in the Oval Office.

Supporters of repeal have actually erected one of these obstacles. While I understand the anger that has ensued after the successful filibuster of the defense bill, it should be aimed at the senators, led by McCain and McConnell, who blocked the legislation. Unfortunately, much of this anger has been misguidedly aimed at the Democrats and Senate Majority Leader Harry Reid in particular, even though Reid saw the bill through to a floor vote and that the overwhelming majority of Senate Democrats voted for the bill.

A greater obstacle is that military leaders are still pushing to delay repeal of DADT, if not to prevent it entirely. Defense secretary Robert Gates recently stated that he continues to believe that any action on repeal should wait until after the Pentagon Working Group submits its report on December 1. But any legislative action to do so will be all but impossible after the November election. In addition, Gates's vaunted report, cited by several Republican senators as a rationale for filibustering the defense bill, has come under attack from the Right. A Washington Times editorial last week attacked the Pentagon's work as a "means of indoctrination... to push tolerance of homosexual conduct." Meanwhile, President Obama's nominee for Marine Corps commandant, Gen. James Amos, has stated that he opposes repeal entirely, repeating worn-out and false talking points about how allowing out gay and lesbian servicemembers could undermine unit cohesion.

With "don't ask, don't tell" repeal stalled in Congress and the Pentagon being less than helpful, the best route for repeal has become the courts, and this month's Log Cabin Republicans v. United States ruling, which declared the policy unconstitutional, offered repeal proponents hope. Yet the Department of Justice is actively opposing this ruling. On Thursday the DOJ filed a request with the U.S. district court that decided the case in question, asking the judge not to halt enforcement of the policy worldwide, and instead to limit any application of the ruling to only the plaintiffs, rendering the ruling all but meaningless. Another district court ruled Friday in favor of Air Force major Margaret Witt, discharged under "don't ask." Now we will see if she is reinstated or if this faces an appeal from DOJ as well.

The obstacles to ending "don't ask, don't tell" are formidable, to say the least. But they can be overcome with strong leadership from President Obama. He still has two options to end the policy soon. He can either decline to appeal the Log Cabin ruling or issue an executive stop-loss order to end all discriminatory discharges against gay and lesbian service members.

Either of these routes will meet with harsh resistance. The antigay right has already made it more than clear that it is vehemently opposed to ending DADT under any circumstances. The Pentagon brass will not take well to Obama overriding their timetable for repeal. But in the end, Obama is the commander in chief, and our Constitution grants him power over the military. If he's willing to take a strong stand for civilian control of the Pentagon and against discrimination, he can eliminate "don't ask, don't tell" once and for all.