Tuesday's ruling by a California federal district court judge ordering an immediate halt to the U.S. military's controversial "don't ask, don't tell" policy regarding gay servicemen and women puts the Obama administration in a difficult bind, but the real problem is Congress' refusal to face up to the fact that the original law establishing the policy is badly outmoded and needs to be changed.
The Justice Department could seek to have the decision overturned on appeal, even though President Obama opposes the current policy, as do a majority of members of Congress and 70 percent of Americans. That includes majorities of Democrats and Republicans, young and old, men and women. Since "don't ask, don't tell" was passed in 1993, attitudes about homosexuality have changed dramatically, and the public is now well out in front of lawmakers on this issue.
The fault for this paradoxical situation, in which the administration finds itself widely expected to defend a discriminatory law with which it openly disagrees, lies squarely at Congress' feet. A majority of House members voted to repeal the 17-year-old law banning gays and lesbians from serving openly in the military, and there's enough bi-partisan support in the Senate to pass similar legislation — but not the 60 votes needed to overcome the threat of a Republican filibuster. As a result, the issue has never been allowed to come up for a vote there.
California District Court Judge Virginia A. Phillips didn't leave the government much wiggle room when she ruled last month that the "don't ask, don't tell" policy unconstitutionally violates the rights of gay and lesbian service personnel to due process and equal protection of the law. On Tuesday, she categorically rejected the government's argument that immediately ending "don't ask, don't tell" would have a deleterious effect on the military's ability to conduct operations around the world. Her ruling not only bans future investigations and trials of gay service members under "don't ask, don't tell" but also halts all such proceedings currently underway.
One of the fascinating aspects of this case is that it was brought not by liberal advocacy groups like the ACLU or Common Cause but by the conservative Log Cabin Republicans, an association of gay and lesbian G.O.P. activists that claims 19,000 members. Justice Department lawyers had argued that even if the court found for the plaintiffs, its ruling should apply only to members of that group. But Judge Phillips disagreed, ruling that "don't ask, don't tell" was fatally flawed because it "infringes the fundamental rights of United States service members and prospective service members."
The administration clearly is worried that after next month's mid-term elections the partisan balance in Congress may make it even less likely to repeal "don't ask, don't tell," regardless of the recommendations of a study the military is conducting on the feasibility of ending the policy, which is due in December. Leaving the matter up to the lame-duck session that starts when Congress reconvenes after the election and runs through the end of the year provides no guarantee the measure will pass the Senate. Members of that body say they're waiting on the military's report, but Republicans such as Arizona Sen. John McCain have moved the goalposts for earning their support on this issue before.
Simply letting the lower court decision stand without challenge is far from ideal. Not only should such an important shift in policy — the California ruling affects military personnel not just there but worldwide — be ratified by Congress or the nation's highest court, simply doing nothing opens the administration to charges that its own attorneys aren't vigorously defending the laws of the land.
But in a situation where no option is perfect, the Obama administration needs to consider what side of history it wants to be on. Does it want to use its Justice Department to protect a policy that is manifestly unjust?