This afternoon, Lt. Dan Choi appeared on MSNBC with Contessa Brewer to discuss yesterday’s court ruling striking down the Don’t Ask, Don’t Tell policy on the grounds that it violates the due process cluse of the Fifth Amendment and abridges servicemembers’ First Amendment rights:
BREWER: [Judge Phillips] says it bars people from enjoying intimate conduct and bars them from speaking about their loved ones while serving in uniform. It bans them from including information in a personal communication that could reveal their homosexuality. If you’re deployed, you’re away from your support system. That’s a severe impediment to dealing effectively, operating effectively in our nation’s armed forces. But she says she’s not going to issue a final ruling for two weeks. What should happen right now from our nation’s leaders not just this judge?
CHOI: You’re absolutely right, for our soldiers not only in combat but back home that have to deal with so many issues of posttraumatic stress, depression, suicide, which is skyrocketing. I don’t see how they could stand by. But if the President and his Justice Department do not appeal, lift a finter, waste any energy, waste any statement or waste any money defending Don’t Ask, Don’t Tell, then what we might see is an absolute victory not only for gay veterans but for our whole military. We don’t have to fire people for being honest. We can bolster and reiterate not only our Bill of Rights and Constitution but that American value of love.
Indeed, while the Justice Department is still reviewing the decision and considering whether or not to appeal the ruling to the Ninth Circuit, at least two Democratic Senators are pressuring the Senate to pass the Defense Authorization Bill, which includes an amendment that begins the process of repeal. Sen. Kirsten Gillibrand (D-NY) tweeted this last night that she hopes “DOJ does not appeal” and Sen. Mark Udall (D-CO) called on Congress to “repeal it to improve natl security.”
Meanwhile, New York Magazine observes that the “ruling presents both a problem and an opportunity for Obama.” “With Democrats heading into what might just be a lame-duck session in the House (leading up to November elections, during which they very well may lose the majority), this might provide a last-minute chance to finally enact change on a policy many of them have vowed to end.” “If the Justice Department simply doesn’t appeal the case after this ruling, ‘don’t ask, don’t tell’ might just go away. If Obama waits for Congress to address the issue, a Republican-led house might reject an overturn.”
Once Phillips enters her judgment, “she can either permit it to take effect immediately, stay it while the decision is on appeal, or temporarily stay it to give the Ninth Circuit an opportunity to rule on whether her decision should be stayed during the appeal.” “Because this is a facial challenge, not just an as-applied challenge, if the decision is upheld on appeal, it will apply to the whole country and will be the end of Don’t Ask, Don’t Tell.”