Supreme court rejects challenge to 'don't ask, don't tell'

Repeal of the policy barring homosexuals from serving openly in the military is now up to the Obama administration and Congress.

By , Staff writer of The Christian Science Monitor

The Supreme Court's decision not to hear a challenge to the Pentagon's "don't ask, don't tell" policy barring homosexuals from serving openly in the military may mean that any push to repeal the policy is unlikely to happen this year.

Monday's points up the Obama administration's dilemma in honoring a campaign pledge to help repeal the policy, while avoiding the pitfalls of a controversial issue that tripped up the Clinton administration in its first year.

In refusing to hear an appeal from a former Army captain who was dismissed under the policy, the top court in effect sided with the Obama administration which said in court papers that a federal appeals court in Boston had ruled correctly when it threw the case out. The policy is "rationally related to the government's legitimate interest in military discipline and cohesion," the administration said in its brief.

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The case was brought originally by former captain James Pietrangelo II and 11 other veterans who were dismissed under the policy.

The court's move plants firmly in the administration's lap any push to repeal the law, says Darren Rosenblum, a law professor at Pace Law School in New York.

"In terms of the ultimate outcome, what the court's action does is it reminds us that nobody else is going to resolve this question," says Mr. Rosenblum, who advocates repealing the law. "It has to be the Obama administration and the Congress that takes this on."

President Obama campaigned last year to end the policy but it has since been unclear when he will take the issue up. Analysts say with the tasks of fixing the economy, conducting two wars, and getting healthcare reform passed dominating the agenda, the White House doesn't want to risk a distraction by pushing for repeal now.

Congress may get there first: Rep. Ellen Tauscher (D) of California introduced legislation to repeal the policy earlier this year, and it has about a 150 cosponsors.

Rosenblum noted that Congress appears willing to repeal the law and that it is not as controversial as it's been made out to be. "It's like a Band-Aid, you have to pull it off," he says.

Members of the military, who tend to be more socially conservative, may resist any quick moves to make the change. But even senior officers recognize that attitudes of the younger rank-and-file have changed since the issue was first raised under President Clinton. Younger veterans also appear to be less strident about this issue than they were 15 years ago.

Last month, Geoff Morrell, Defense Secretary Robert Gates' spokesman, said that other than some "initial conversations" between Mr. Obama, Secretary Gates, and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, the Pentagon had done little in anticipation of imminent change. But his comments were perceived as overly dismissive of the issue and the next day he issued a new statement reiterating Obama's commitment to repealing the policy.

"President Obama has been clear in his direction to Secretary Gates and Chairman Mullen that he is committed to repeal the "don't ask, don't tell" policy," Mr. Morrell said in a statement e-mailed to reporters. "He has also been clear that he is committed to do it in a way that is at least disruptive to our troops, especially given that they have been simultaneously waging two wars for six years now."

Morrell added that Gates and Mullen were working to "address the challenges" involved in implementing the repeal.

As a half-measure, some advocates would like to see Obama stop drumming people out of the military whose service violates the policy.

The Pentagon has discharged nearly 240 people since Obama took office, according to the Service Members Legal Defense Fund, which advocates repeal of the policy. Last year, the Pentagon discharged 619 people, down from 627 the year before. In 2001, the military discharged 1,227 people under the policy.

More than 11,000 service members have been discharged since 1993, including members the Pentagon deems as "mission critical," including 300 members with specialized language skills.

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