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The following op-ed, by Palm Center scholars Diane H. Mazur and Aaron Belkin, makes the case for federal courts ensuring that DADT is not reinstated, and follows recent comments by presidential candidate Rep. Michelle Bachmann (R-MN) supporting the reinstatement of the gay ban.
The Palm Center is a think tank at the University of California, Santa Barbara. Since 1998, the Center has been a leader in commissioning and disseminating research in the areas of gender, sexuality, and the military. For more information, visit palmcenter.org.
After "Don't ask, don't tell" (DADT) is repealed on September 20, it would be difficult for any future administration to reverse the change. Most of the country supports allowing gay men and lesbians to serve openly, including a majority of Republicans, and it will be operationally and politically challenging to roll back the clocks.
That said, it's legally possible, and presidential candidate Michele Bachmann's stated intent to re-instate the military's ban is therefore of some concern. Although some activists are calling on President Obama to sign an executive order forcing the Pentagon to treat gay and lesbian troops equally, the institution that's best positioned to lock repeal into place is the federal courts.
There were always two ways to end "don't ask, don't tell" (DADT). Congress could repeal the law, or the courts could find it unconstitutional. During the past year, both options have moved forward in tandem, with Congress pursuing repeal legislation as the federal courts entertained a case, Log Cabin Republicans v. Panetta, that questions its constitutionality.
After a lower court ruled in September, 2010 that DADT is unconstitutional, it appeared as if the judicial branch might terminate the policy before the politicians got around to it. But now that the military, Department of Defense, and President have certified that the armed forces can live without DADT, the converse may be true, and the Justice Department is pressuring the federal courts to dismiss Log Cabin as moot. That would be a mistake and a lost opportunity, because a favorable decision in the case is still needed to protect the welfare of the troops, and because there's even more at stake than that.
