First, it was the first time anyone has challenged the law based on the First and Fifth Amendments; until now all the challenges have been on an individual being discharged because they’re gay. But to take the approach that keeping quiet about your sexual orientation is a violation of free speech and being discharged for it is a violation of self-incrimination is remarkable for its common sense and fundamental rightness. Whether or not you believe that gays and lesbians should serve openly in the armed forces, it’s very hard to make the argument that they, unlike the straight soldiers, cannot talk openly about their personal lives or be discharged for saying that they went out on a date last night with someone of their same sex. It’s discrimination, and in a country founded on the idea of equal rights for all, it’s wrong.
The second good was that this case was brought by the Log Cabin Republicans; the gay GOP group. As hard as it might be to get your mind around the idea of gay Republicans — after all, the GOP has made a lot of money and secured their base as the Anti-Gay Party — but the reality is that like every group, not everyone thinks alike. And in a way I admire the Log Cabin Republicans for taking the case to the court. It makes it a little tougher for the homophobes in the GOP to claim that this was the doings of liberals. They’ll still come up with the canard of judicial activism — an unelected judge is making laws — but, like the Bill of Rights, that’s how our system works.
There’s been some justifiable impatience from gay-rights advocates that the Obama administration has not done enough to put an end to DADT. After all, the president campaigned on it and a lot of people voted for him based on the assumption that he would immediately lift the ban by executive order. But following the legislative route guarantees that the next Republican president can’t reinstate it, and if the rulings in the courts are upheld, it relieves the administration of the responsibility for lifting the ban on their own, providing them with political cover. (I’m shocked, shocked to find politics going on here!) Frankly, I would rather we went through the sometimes aggravating process of lawmaking rather than rely on executive orders and lower court rulings. There is, at least, the impression of permanence.
This ruling comes at a time when DADT is in the process of being repealed by Congress; the House has already passed it and now we’re just waiting for the Senate. Whether or not this will advance the clock on it is uncertain, but like the ruling on Prop 8 last month from the federal court, the tide is turning.