Yesterday, I argued that the Department of Justice was right in asking the courts to delay a court ruling on Don’t Ask, Don’t Tell. “A court decision supporting the ban could energize not only conservative advocates but also the men of the military who have publicly embraced the President’s decision as a general concept, but seem very uncertain about the prospect of actually regulating DADT out of existence.” AmericaBlog’s John Aravosis characterizes my position as “wrong” and “dangerous,” saying that I had decided that “the gay community should give up using the courts to fight for our civil rights.” “So CAP is now taking the position that civil rights advocates shouldn’t go the courts, ever,” Aravosis asks.
The question is surely rhetorical, or perhaps Aravosis isn’t aware that on Tuesday CAP CEO John Podesta published an op-ed in the Washington Post arguing that the courts should be used to advance marriage equality and announced that he has agreed to co-chair the advisory board of the American Foundation for Equal Rights. In covering this development, on AmericaBlog, Aravosis’ colleague Joe Sudbay describes the op-ed as “strong and unapologetic“:
It’s good…. Podesta is the personification of a Washington insider. He was Chief of Staff to Bill Clinton. He founded CAP. He was the chair of Obama’s transition. Many of the DC Democratic insider-types have kept their distance from the marriage issue. Podesta’s engagement is an important signal for that crowd.
Let me assure you then, that in the 48 hours since the op-ed was published, CAP has not reconsidered. Nor is it “taking the position that civil rights advocates shouldn’t go the courts, ever.” My point was to say that the risks of a negative decision far outweigh the benefits of an unconstitutional ruling and in all his grand proclamations about how dangerous the Center is, Aravosis never actually addressed the substance of my argument.
Even if the courts were to strike down the policy, it would still take some amount of time for the military to institute new regulations and there is simply no evidence that the time to implement a new policy would be any faster than the current process. This doesn’t even address the fact that any decision would be stayed pending further proceedings and appealed — a process that would take far longer than the current political track. For instance, in Loving v. Virginia, a case which Aravosis cites, it took four years after the ACLU filed its first motion before the Supreme Court eventually ruled for the Lovings. A few isolated districts complied with the Browne v. Board decision, but the ruling encountered massive resistance until the early 1960s.
Finally, the Pentagon certainly wouldn’t “openly defy a court order striking down DADT as unconstitutional,” but it could certainly use a negative ruling as an excuse to maintain the status quo. That, would truly be dangerous.