The injunction issued by Judge Virginia Phillips to halt enforcement of Don’t Ask, Don’t Tell is a wonderful thing, but it has some bugs attached. First, the Obama Administration might be fool enough to appeal it and second, it leaves the Pentagon with an escape clause that it can still use to club queer service people about the head whenever it wants.
That the Obamas would be fool enough to appeal would not surprise me. Obama is in love with process and fearful of criticism, and no criticism to a process lawyer is worse than being told he should have allowed the system to run its course. Reap the whirlwind or not, the Obamas will often put process over politics.
It goes without saying that nothing would piss off the Obama base more than appealing this decision. I may even vote against the “fierce advocate” if he appeals. But Obama has proven consistently that he does not care what the base thinks. Some common taters have opined that Congress may save his ass by repealing in the lame duck session, but I would not hold my breath. The Court ruling may have been in favor of the Log Cabin Republicans, but the GOOP leadership in the Senate cares as little for that sector of the Republican Party as Obama cares for his base.
A bigger issue is the loophole the court created for the Pentagon’s Evangelical Christian leadership. The Log Cabin decision turns on the failure of the Pentagon to provide due process to gay soldiers. In effect, the Pentagon has declared that a class of soldiers is per se a threat to unit cohesion, and is therefore barred from service. The constitutional violation is in treating every member of the class the same without a judicial process for reviewing individual claims.
A lack of due process can easily be remedied by creating a process. The Pentagon can conclude by regulation that homosexual behavior may indicate a threat to unit cohesion, and establish a tribunal to hear claims of suitability for service. Every queer in the military would have to have a hearing, but no queer would be safe. (I can imagine a scenario in which a service person would have to endure a new hearing any time he or she changed units.)
By creating a regulatory process, the Pentagon gets to keep the investigative apparatus that it now uses to track down queers. It also gets to set up a new Star Chamber to hear cases and make unit cohesion determinations. Queer service people would still be subject to the same back-stabbing punishments motivated by jealousy, revenge or Christofacist zeal that they now endure.
Without a clear direction from the top, DADT will live on.