DADT is on its last unconstitutional leg

While the Senate didn’t take the necessary steps to get this discriminatory law off the books, thankfully there are other avenues to ensuring our military remains the best and most capable fighting force in the world.

Reflecting on yesterday’s loss, I can’t help but think of the 14,000 veterans discharged under “Don’t Ask Don’t Tell” since 1993 and the nearly 70,000 gay, lesbian, and bisexual service members who continue to selflessly serve in silence. They have been waiting for the Senate – for their country – to come through for them, to allow them to finally serve openly, honestly, and with the full integrity their uniform demands.

The Senate failed them. Election year posturing beat out not only dedication to our men and women in uniform, but also the will of the American people. Nearly 80 percent of Americans hold the common sense belief that on the battlefield what matters is getting the job done, not sexual orientation.

There is still hope though that the end of DADT is near. Senate Majority Leader Reid has committed to bring the bill back up following the mid-term elections. In over 40 years, Congress has not failed to act on the National Defense Authorization Act, and we hope they don’t fail the troops this year. We are in a time of war and the stakes are too high. We will continue that fight to create a lasting and durable policy that discrimination has no place in our armed forces.

On another front in the battle for repeal, the Log Cabin Republicans successfully argued in front of a federal district judge that DADT is unconstitutional. After hearing significant evidence, including testimony by six discharged service members and seven expert witnesses, the decision makes clear that DADT does not further the government’s interest in military readiness or unit cohesion. The decision also acknowledges that that the military is discharging qualified service members, including those with skills critical for the military’s success.

Opponents of open service are out of arguments. They may have won the day through procedural maneuvering on the Senate floor this week, but even they are facing the very real fact that the days of this failed and discriminatory law are numbered. So what can be done to keep equality moving forward?

The Justice Department can choose not to appeal the Central District of California’s decision that DADT is unconstitutional allowing the well-reasoned opinion to stand. The facts gathered in the case add to the ever-growing list of evidence illustrating that Congress lacked even a rational basis for enacting DADT. While we continue to fight to get the Defense bill over the finish line, now it’s the Attorney General’s turn to stand on the right side of history. 

The facts are on our side. Momentum is on our side. Military leadership, including the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, and the President of the United States, is on our side. The majority of Americans have gone from supporting this failed law, to overwhelmingly opposing it. DADT is on its last unconstitutional leg. The road to progress hasn’t been easy but someday soon we’ll leave this failed law in the dustbin of history.

Joe Solmonese is the President of the Human Rights Campaign.