So what comes next? Already Judge Phillips has denied the Obama administration a stay, and the Justice department has announced it is taking an appeal to the Ninth Circuit Court of Appeals. While that court might allow the injunction to remain in place during the appeal, it might ultimately reverse the district court and vacate it. What we do know is that the Phillips decision will likely be tied up in the courts for years. On the evening news we see gays and lesbians trying to enlist, but their window to do so may close again any day. At the moment there is much uncertainly. That need not continue.
The most immediate and timely road to repeal, albeit perilous, uncertain and with only the slimmest of chances of succeeding this year (after all we are talking about the Congress), is in the Senate which has before it the National Defense Authorization Act which contains provisions providing a path to DADT repeal. The looming challenge there however is the New Right Senator from Arizona -- John McCain, who, apparently, in his mind, is making the military safe for straights. In fact, Sen. McCain announced this weekend his continued determination to block any action that would allow senators to vote repeal up or down in the lame duck session. That means repeal advocates will have to muster 60 votes to debate what over 75 percent of Americans favor.
Victory will come only with some Republicans joining what the majority of senators and Americans want to achieve. And how do Senate Majority Leader Reid, President Obama and repeal advocates pull that off? The old fashion way. Vote-getting isn’t always a matter of fairness; it’s the inside game and art of convincing a couple more senators to be in the yes column with you, and its understanding and hearing what that will take. Reid and Obama and their people know how the game is played; the only question is will they pull out all the stops when the Senate returns to get the defense bill on the floor that week, with some arms having been twisted and perhaps some holiday stockings stuffed. The question is do they now realize this cannot be business as usual.
The Republican who could be very helpful in making this happen is Defense Secretary Gates. After all, it is his defense bill we are talking about, it is his department operating on a short-term Continuing Resolution, and a number of Gates’ projects and funding are on hold, even training for troops about to be deployed to war zones, as well as their pay increase and benefits.
But Gates hasn’t been sounding as though he is ready to step in. In fact, the other low that went largely unreported last week was Gates’ rushing out shortly after Judge Phillips’ decision to declare that any hasty action would be inappropriate, from a single judge and maybe from the Senate too. The Secretary insisted there was much more work and study to be done before a change in the law would be ripe. Incredibly, Gates singled out the need to study separate military housing for gays. (The Gates/Pentagon speak for this red herring was “Defense Department Buildings.”) Well, while that was the Secretary’s talking point for delay over a year ago on the Sunday talk shows, it is something that others at the Pentagon have been saying is not under consideration. For him, clearly it is business as usual.
Last week, the President tweeted, “We will get this (repeal) done on my watch.” But back in January in his State of the Union address it was going to be “this year.” Unfortunately, “on my watch” could be another two years or longer, and that is simply not going to fly. If Congress hasn’t acted, I believe we could well see service members out in the streets openly protesting, perhaps on and around military bases. While this is not what we are advising, this is what we are hearing from service members who have been extraordinarily patient throughout this protracted process — the very same people we are advising not to come out because it is not safe to do so.
These are not subversive unAmericans who don’t care about the military or their country. These are non-political soldiers, sailors, marines and airmen who are getting ready to act, if necessary, and to say, “Hell, no, I’ve had enough. Two years of study and delay are two years too many.” This is not business as usual for these service members, nor should it be for their leaders in Washington.
Aubrey Sarvis is an Army veteran and now executive director of Servicemembers Legal Defense Network (SLDN), a group working to repeal “Don’t Ask, Don’t Tell.” Sarvis is the former chief counsel for the Senate Commerce Committee and later executive vice president of Verizon Communications.