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Don't ask, Don't tell ban creates hot political problem for Obama just before crucial midterm elections

October 13, 2010 |  2:38 am

Florida protestors against the Obama administration's Dont Ask Dont Tell policy toward gays in the military greet the president Monday during his Miami fundraising trip

Don't ask, don't tell was totally banned by a federal judge near Los Angeles Tuesday, creating a major political predicament for Democratic President Barack Obama just 20 days before crucial midterm elections that already augured ill for his party.

The Don't Ask, Don't Tell military policy tolerates gay members of the armed forces as long as they remain silent about their sexual orientation.

It was actually instituted by a Democratic Congress and signed by a Democratic president in 1993 as a reform to prevent the military from actively seeking out gays in the services and discharging them. It has since come to be seen as a form of discrimination and a hot topic in liberal circles where politicians such as Obama have vowed to end it but have not done so.

Some 13,000 military members have been discharged under that policy since 1993.

However, there's been little movement toward actually ending the policy. A repeal effort is underway in Congress; the Democratic House passed a repeal this year, but the Democratic Senate did not.

Both Obama and Vice President Joe Biden have repeatedly appealed for patience within....

...the gay community while the military and administration conducts another review. But their appeals have been met by growing frustration and an Obama fundraising speech in California earlier this year was interrupted by shouted demands for repeal.

Monday's three-page order by District Judge Virginia Phillips in Riverside, California, instituted an immediate and permanent ban to the policy because, she wrote, it "infringes on the fundamental rights of United States service members and prospective service members.'' She said it violates due process and freedom of speech, and prohibits targeted service members from petitioning "the government for redress of grievances" to fight for their jobs when they are outed as homosexuals.

Under normal federal procedures the Justice Department would be obligated to appeal the ban, as it always does when defending acts of Congress in court.

The administration has known for more than a month that this decision was coming. Judge Phillips said on Sept. 9 that she considered the law unconstitutional. However, a spokesman said no appeal decision has been made. Or at least they are not yet prepared to announce it.

Fortunately for administration political reasons, Obama has 60 days to file an appeal, a timespan that will get him past the Nov. 2 midterm elections when numerous current polls indicate his party will likely endure a shellacking in congressional elections, and possibly at state levels as well.

Appealing the court's ruling now would anger a major element of the Democrat base, possibly adversely affecting some elections and widespread turnout. A decision not to appeal would be the easiest for the administration, which could simply abide by the court's ruling.

That could, however, cause further damage among conservatives and many in the military who favor Don't Ask, Don't Tell as is. And not proceeding would shortcircuit the ongoing review within the military community. So, a decision to postpone the decision seems most likely.

In a news release Monday, the Log Cabin Republicans, which brought the case, expressed pleasure with the ruling but urged caution on members of the military contemplating coming out since the administration might still appeal.

-- Andrew Malcolm

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Photo: Pat Carter / Associated Press (Protestors against the administration's Don't Ask, Don't Tell policy greet Obama during his Florida fundraising trip Monday).

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