Earlier this month, the Obama administration let pass a deadline to appeal to the Supreme Court in a case regarding a decorated female Air Force officer who was discharged for having a homosexual relationship. Defenders of Major Margaret Witt argue that “Don’t Ask, Don’t Tell,” the Clinton-era policy under which she was expelled, can be argued on a case-by-case basis and doesn’t have to be obeyed as a blanket order. The San Francisco court that heard her case ordered the government to prove that the presence of Major Witt was a threat to military discipline and cohesion. The case will now continue to travel through the lower court appeals process. White House spokesman Ben LaBolt said that Obama, who had pledged repeatedly to repeal “Don’t Ask, Don’t Tell” during the campaign, is still in favor of doing so “in a sensible way that strengthens our armed forces and our national security.” LaBolt also said, however, that “until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
This, understandably, is a confusing position, especially when taken in tandem with a Pentagon statement today that there are “not any plans underway” to repeal “Don’t Ask, Don’t Tell,” and that top military brass have only had “preliminary” discussions with the Obama administration about doing so. But it is merely a symptom of a larger conflict facing Obama lately. More and more reports and editorials in the media cite a growing discontent among the new president’s gay constituency, a group that rallied behind him aggressively during the campaign (at least after Hillary dropped out) and was an important fund-raising block. After all, in defending his invitation to Pastor Rick Warren to participate in his Inauguration, he called himself a “fierce advocate of equality for gay and lesbian Americans.” That’s pretty much the last we’ve heard him speak about gay people — there’s been barely a fax in his first 100 days and counting.
Not that there weren’t opportunities. Candidate Obama pleased gay activists by coming out against Proposition 8 in California before the anti-marriage-equality measure was passed, saying he opposed the “divisive and discriminatory” bill. But when weddings between same-sex couples were legalized in Maine, Iowa, and Vermont during his presidency, he remained silent. While Obama has said he’s not in favor of federally legislating marriage equality — and even advocates realize that trying to do so would be futile at the moment — this would seem to be a good moment to start work on his promise to repeal the Defense of Marriage Act, which allows states to not recognize same-sex marriages performed elsewhere. Furthermore, a hate-crimes bill protecting LGBT victims is now meandering through Congress, having been passed in the House and awaiting debate in the Senate. Obama could easily lean on Senate leadership to expedite the bill, which already has bi-partisan support and will surely pass.
The biggest missed opportunity, though, seems to be “Don’t Ask, Don’t Tell.” The excuse, given by Robert Gibbs, that Obama is distracted by the economy is really nonsense — that didn’t stop him on Guantanamo or health care or car emissions, other core beliefs he championed while on the stump. He’s still got the approval ratings to effect rapid change, and even if he didn’t, the majority of Americans already believe “Don’t Ask, Don’t Tell” should be repealed.
So why the delay? Part of the reason is that the gay community, while irritated over the delay, isn’t nearly as motivated by this issue as it is by marriage equality — where real change is being effected in progressive states without Obama. He has never been on the side of activists in the gay-marriage battle. While their energy is focused at the state level, there’s no threat of massive uproar if he maintains the status quo on “Don’t Ask, Don’t Tell” for now. To be fair, Obama is also facing foot-dragging on the part of the Department of Defense. In an ABC News interview with George Stephanopoulous, National Security Adviser General James Jones went to extreme, nervous lengths to explain just how complicated it would be to get all of the military top brass lined up to support Obama on this.
More immediately, Obama’s upcoming Supreme Court nomination (or nominations) poses an obstacle. Two gay women are on the commonly cited short lists to replace David Souter, and already opponents are lining up to cause a stir — arguing that the appointment of a homosexual would mean putting a sure vote for gay marriage on the bench. It’s hard to imagine Obama would appoint someone gay, no matter how hard LGBT activists push him on it. Yet pushing hard on hate crimes and “Don’t Ask, Don’t Tell” right now, just as gay marriage is gaining momentum nationally, would risk Republicans painting any nominee he picks as an “activist judge.” Every hearing would be an opportunity for the GOP to try to scare moderate supporters away from Obama.
None of that, of course, changes the fact that Obama could get a bill to repeal “Don’t Ask, Don’t Tell” on the floor in Congress if it were really important to him. Gay activists and journalists alike are just coming to terms with the fact that, most likely, it isn’t.
Related: Gay Math: Running the marriage numbers in Albany
Pride Agenda Director: ‘We’re Closer Than Most People Think’ to Marriage Equality