Justices decline ‘don’t ask, don’t tell’ case

In refusing to hear a challenge to the military’s restriction on gay troops, the Supreme Court has put the issue back into President Obama’s lap — and gay rights advocates are starting to get angry over his slow pace in terminating “don’t ask, don’t tell.”

Mr. Obama promised during the campaign to eliminate the policy, though he says he needs to act with Congress. But advocates say he could end the ban unilaterally or at the very least use his power as commander in chief to stop the dismissal of troops found in violation.

The White House has clearly made a decision from early on that it does not want to venture into culture-war issues, but it may not have the choice, because they’re getting a lot of bad press on this,” said Nathaniel Frank, a senior research fellow at the Palm Center and author of “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.”

“What’s concerning me now is they don’t seem to have a plan. They seem defensive,” Mr. Frank said.

The Supreme Court on Monday, with the Obama administration’s support, rejected a request by Army Capt. James E. Pietrangelo II to hear an appeal challenging the constitutionality of the ban. The court rejected the request, or writ of certiorari, without comment.

In court filings, the Obama administration had to defend ?don’t ask, don’t tell,? arguing that it was a rational policy for the military, though most observers viewed that not as a change in position but as a way to buy time while the Pentagon reviews the policy.

The White House had no comment after the court’s decision, but press secretary Robert Gibbs has been fending off questions about Mr. Obama’s policy, saying the president remains committed to passing a bill through Congress.

“To get fundamental reform in this instance requires a legislative vehicle,” Mr. Gibbs said in May.

Mr. Frank and other advocates said they allowed Mr. Obama some time to deal with the nation’s economy and legislative priorities but now are looking for signs of commitment from him and from Congress.

“The time to repeal ‘don’t ask, don’t tell’ is now,” said Human Rights Campaign President Joe Solmonese. “The Supreme Court’s denial of a writ of certiorari in this case, and the upcoming hearing to discharge Lt. Dan Choi, is only further proof that this law is not working and is putting our national security at unnecessary risk.”

Rep. Joe Sestak, Pennsylvania Democrat, said Congress and the president “should move on into this area and try later this fall and to move this forward as an issue we can put behind us.”

“I do believe that on his own the president in an executive order could potentially go and do this, but I think the Congress should bear that responsibility also,” said Mr. Sestak, a retired Navy admiral who is the highest-ranking former service member in Congress. “We’re co-equal members of the government.”

Elaine Donnelly, president of the Livonia, Mich.-based Center for Military Readiness, which supports the law prohibiting gay troops from serving openly, said there isn’t enough support in Congress to act and that Mr. Obama would be making “a serious breach of trust between the commander in chief and the troops he leads” if he tries to act unilaterally.

“These gimmicks of highlighting human interest stories or coming up with this ludicrous plan to suspend the law. That’s not going to cut it,” she said.

More than 1,000 retired generals and admirals signed a letter earlier this year supporting the ban on gay troops serving openly, and said a repeal could eventually break the All-Volunteer Force that is the core of the U.S. military model.

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