- The Washington Times - Tuesday, June 9, 2009

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.

“Everything has stalled, and I think it’s because of the flag and general officers letter. Their open letter has totally changed the atmosphere,” Mrs. Donnelly said.

She pointed to comments from Rep. Barney Frank, Massachusetts Democrat, who in April told Roll Call newspaper that Congress will not consider the issue until next year, as evidence that repeal will be difficult.

President Clinton in 1993 called for a policy to end the ban on gays serving in the military in what became known as “don’t ask, don’t tell.” But Congress later that year also acted, passing legislation that prohibits openly gay service members.

The Servicemembers Legal Defense Network says nearly 13,000 troops have been dismissed under the policy since 1994.

The debate over Mr. Obama’s powers to change the policy has raged this year.

The Palm Center, a think tank based at the University of California at Santa Barbara specializing in research in the areas of sexuality and the military, issued a report earlier this year arguing that federal law allows the president to suspend laws that interfere with national security. In lieu of that, the Palm Center said, Mr. Obama could direct the military not to make any more findings of homosexuality of service members.

Mr. Sestak said he doubted any change would affect unit cohesion or military readiness. He said younger troops don’t find serving with openly gay troops as much of an issue. Once the policy is scrapped, he said, people will look back and wonder why there was so much fuss about it.

But Mrs. Donnelly said the retired officers’ letter in support of the ban shows the detrimental effects of overturning the policy.

Despite the court’s decision not to hear Monday’s case, it could be asked to hear another case in which the 9th U.S. Circuit Court of Appeals applied a stricter standard in reviewing the policy.

Also, the issue could flare again when the next round of numbers is released showing how many troops have been dismissed as a result of the policy under the Obama administration.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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