This week, a federal court judge issued an extreme ruling regarding “don’t ask don’t tell”: An injunction, forbidding the U.S. military from enforcing the policy worldwide. As part of the ruling, she gave the government up to 60 days to appeal. Attorneys for the Log Cabin Republicans, which brought the lawsuit, have counseled caution, discouraging servicemembers from coming out.
Now, it’s been a long while since I practiced law actively, but I have some ideas radical ideas about how those in the military should approach this ruling.
• COME OUT NOW. I know the LCR doesn’t think it’s a good idea, but here’s the thing: It is, for now, the law. Just like years ago, when San Francisco and New Paltz, N.Y., declared they would recognize same-sex marriages and performed dozens of them, the act itself has repercussions. The courts had to decide the legality, but in the interim, who could say they were not legal?
Relatedly, everyone who got married in California after same-sex marriage was allowed but before Prop 8 was passed were deemed to be legally and forever married. Those unions were not negatively affected from legal recognition by Prop 8. I would argue that anyone who does come out in reliance on a federal ruling cannot later be discharged, anymore than someone who drives 30 mph can be given a ticket a year retroactively later when they change the speed to 25.
It also provides the Obama administration with political cover. Obama claims to want to discontinue DADT, but is relying, disgustingly, on some bullshit “study” before acting. (The details of that study offend me to the core, as it will evaluate such things as whether gay troops should be given “separate living facilities” or whether the other servicemembers will be “OK with it.” Since when did the military care what grunts think, or act like a democracy? What if a soldier is gay but doesn’t want to come out — should he be forced to so he can be segregated in the pink barracks? It’s really very easy: The ruling should be “gay troops are no different than any others; effectively immediately, they are treated identically.” So if they wouldn’t do something for single gays or gay couples they do for straight singles or couples, don’t do it.) But Obama does not have to appeal the ruling; he shouldn’t. Let the courts decide it for him. Continue on with the legislative agenda just in case, but don’t appeal the ruling.
• HOLD OBAMA TO HIS PROMISES. I mean this in the most threatening way possible. If the Obama administration does appeal the ruling, I personally will do everything in my power to throw my support to someone else. If a black man who is president cannot stand up for minorities and keep the promises he made the gay community as a candidate, he does not deserve my financial support. Or my vote. This is a test, Brarack: If you fail it, do not expect to get extra credit from me.
I know there are many out there who’ll say, “you’d prefer a Republican over a Democrat in the White House?” No. But I know this: If my rights are trod by someone who doesn’t have the political will to respect me, I don’t care what political party he or she is a member of. Keep in mind: DADT and DOMA were signed by Clinton; the first sitting president to express any support for civil unions for gays was W. (Granted, W did it in the context of opposing marriage, but Clinton never came out in favor of it, and even counseled John Kerry in 2004 to come out against civil unions! “The gays will forgive you and it might help you win,” he supposedly said. Shameful.)
We are at the brink of huge changes in the law and recognition for gay rights at a level I could not have conceived when I was a college student. This is no time to back down. This is the time to fight. Bloody some noses. Shame people into acknowledging their own bigotry. Because I assure you, in 50 years, public high school students will look back on how the current culture treated gays with the same puzzled disgust that we look on Jim Crow laws. Orville Faubus and George Wallace were probably more popular in public opinion polls in their day than Rosa Parks and Martin Luther King Jr. And how many streets have you seen named after Faubus and Wallace?
This is the time to create our heroes, our Rosa Parkses. Don’t shy away, guys. Don’t go to the back of the bus. Come out and say “In accordance with a federal order, I am saying I am gay. What are you gonna do about it?” Because right now, they can’t. And even if they can down the road, they will appear vindictive to discharge those with the courage to come out later.
Obama pledged change we can believe in. We’re ready for the change, Mr. President. Keep your word.