Sorry, CAP – courts matter

We’ve been pretty critical of the Center for American Progress’ Winnie Stachelberg for claiming credit for the “Don’t Ask, Don’t Tell” compromise that lots of people in the community hate. So we expected to catch some flak from CAP. The only problem is, their flak is wrong.

CAP, via their blog ThinkProgress, is now arguing – in response to our earlier post – that it’s not just okay, but downright welcome, that President Obama’s Justice Department is trying to get a case challenging the constitutionality of DADT basically thrown out of court. (The administration is arguing, laughably, that the prospect of Congress passing this DADT compromise – a compromise that does not in any way guarantee repeal of the anti-gay law – means the courts should never rule on DADT ever again.)

As you know, the Obama administration routinely fights against gay civil rights progress in the courts, defending DADT and DOMA, even though they promised to fight against both, and even though they aren’t required to defend those laws at all. Now, in their ongoing effort to out-Wallace George Wallace in the courts, the administration is arguing that courts shouldn’t even consider DADT challenges since Congress might, some day, pass something, even though it isn’t really a repeal. And CAP is, oddly, agreeing with them.

Now, why would CAP take a position that one might expect from the Reagan Justice Department? Here’s their argument:

I’ll grant that repeal certainly isn’t final and faces some substantial hurdles in the Senate, but those obstacles are hills compared to the mountains we’ll have to climb if the court upholds the policy. 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.

It’s those men — Gates, Mullen and the Chiefs — who are responsible for actually changing the military’s regulations in this regard and (given their already considerable foot dragging on the issue) it’s just not believable to say that a court decision will spring them into action.

A few problems with that line of argumentation.

1. The notion that the gay community should give up using the courts to fight for our civil rights is wrong, and dangerous. Look at the advances the black community made in the courts (Brown v Board and Loving v Virginia come to mind, but there are more). You don’t just write off legal action as no longer a welcome option because a loss might affect our legislative agenda. That’s always a possibility, for every civil rights community. So CAP is now taking the position that civil rights advocates shouldn’t go the courts, ever?

2. But more specifically, CAP is now worried that a judge might rule that DADT is constitutional. Yeah, so what? Do you really think any of our allies in Congress are going to change their minds because a court says DADT is constitutional? Courts have been saying that for nearly two decades. The bad guys will always try to use it, and everything else, to justify their bigotry, that isn’t new. But the bad guys are already against us – a court case won’t change that, and our guys are already on our side, and again, a court case won’t change anything in terms of their support for us in Congress.

3. But CAP’s oddest, and most dangerous, argument is the last one: That DOD won’t change its mind simply because a court rules DADT unconstitutional.


CAP believes that the Pentagon would openly defy a court order striking down DADT as unconstitutional? Well that’s rather scary. And it’s the kind of thing that comes awfully close to a coup d’état. To blithely suggest that that’s okay, and to be expected, and accepted, is odd to say the least. Especially from a think tank closely allied with the Obama White House.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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