Congress must repeal 'don't ask, don't tell'

Service members advocating for an end to "don't ask, don't tell" handcuffed themselves to the White House fence in April.
Service members advocating for an end to "don't ask, don't tell" handcuffed themselves to the White House fence in April. (Pablo Martinez Monsivais/associated Press)
Saturday, October 16, 2010

ATTORNEY GENERAL Eric H. Holder Jr. no doubt held his nose on Thursday as the Justice Department filed an appeal of a California federal court ruling striking down the military's "don't ask, don't tell" policy. It was the politically distasteful but legally correct choice. Now, it is Congress that must summon the courage to repeal this abhorrent mandate.

Judge Virginia A. Phillips of the U.S. District Court for the Central District of California this week issued a broad injunction prohibiting the military from enforcing the policy, which threatens gay service members with expulsion if their sexual orientation becomes public. Judge Phillips ruled that the policy violates constitutional guarantees of due process as well as gay service members' First Amendment rights.

The ruling put the Obama administration in an awkward position. The president has repeatedly declared his opposition to the policy and has called for its elimination, as has Defense Secretary Robert M. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff. Yet the Justice Department is obligated, with rare exceptions, to defend all congressional enactments.

The Justice Department had good reason to seek to put the judge's order on hold. The judge's conclusion that service members' First Amendment right are violated by the policy could have significant ramifications beyond "don't ask, don't tell." Courts have upheld restrictions on service members' political activities -- including free-speech restrictions that probably would not stand if applied to civilians. Judge Phillips's ruling could put these narrow but sensible limitations in doubt.

Just as important, the judge's decision to put an abrupt halt to "don't ask, don't tell" risks confusion, and changing the policy without a solid transition plan coming from military leadership could place gay service members in harm's way.

The political branches are best suited to determine how to dismantle the policy to ensure compliance and minimize disruption. A Pentagon task force has been analyzing how a repeal would affect troop readiness, morale and recruitment. Its report is due in December.

Some 75 percent of the country thinks gay people should be able to serve openly in the military , as do top military and civilian leaders. The country cannot afford to turn away qualified individuals who are willing to serve, especially in the midst of two wars. The House has already voted to get rid of the policy. Pre-election gamesmanship by Senate Democrats and Republicans ensured that repeal would have to wait for another day.

That time should come soon. The Senate should take up the matter when it returns for the lame-duck session. The judge's ruling should serve as a wake-up call: If lawmakers do not take the lead, the courts will.

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