Eight Days in a Changed World

During the next eight days, efforts aimed at stopping discrimination in two of the most traditionally conservative (and heterosexual) of institutions – marriage and the military – will be front and center. What’s more, the efforts have, in part, gotten where they have because of the leadership of two unexpected allies: a secretary of defense from the Bush administration and a top lawyer from the Bush Justice Department.

On Tuesday, Nov. 30, the Pentagon is set to release the report produced by the Pentagon working group that has been tasked with examining ”the issues associated with properly implementing a repeal of the ‘Don’t Ask, Don’t Tell’ policy,” as Defense Secretary Robert Gates has said. Gates, who served in the same role at the end of the Bush administration, announced the working group in his testimony before the Senate Armed Services Committee (SASC) on Feb. 2.

The Washington Post previously reported that sources told the Post that the working group ”has concluded that the military can lift the ban on gays serving openly in uniform with only minimal and isolated incidents of risk to the current war efforts.” The survey of troops conducted by the working group, the Post reported, resulted in a finding that more than 70 percent of troops said the effect of repeal would be ”positive, mixed or nonexistent.”

The full report, however, is expected to be more than 350 pages and will contain details not present in the leaked accounts of the report, providing talking points for supporters of DADT – led by Sen. John McCain (R-Ariz.) – as well as opponents looking to pass legislation during the lame-duck session of Congress that is aimed at repealing the 1993 law.

Two days after the report’s release, on Dec. 2, SASC Chairman Carl Levin (D-Mich.) has asked Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, to return to the committee – along with the co-chairs of the working group – to testify about the report. In recent weeks, both Gates and Mullen have made repeated public statements about the importance of lame-duck passage of repeal, so – 10 months to the day after their February testimony – they will have the spotlight to make their case to the Senate directly.

They, along with the co-chairs of the working group – Defense Department general counsel Jeh Johnson and Gen. Carter Ham, the commander of U.S. Army Europe – are expected to testify both about the views of the troops, including gay and lesbian troops, and spouses, as well as the process involved in implementing repeal should Congress act to do so. Both Gates and Mullen also – if their recent statements are any indication – likely will testify that Congress should act to repeal DADT now. The reason, from their vantage-point, will be two-fold: (1) The study is done, and repeal can be done with little risk, and (2) if this Congress does not finish repeal on a congressional timetable, court action – with a nod to the Log Cabin Republicans v. United States case – could force repeal on an immediate timetable.

After Thursday’s hearings, where all four testifying are likely to support and press for lame-duck repeal action, Friday’s hearings could be less predictable – and more likely to provide supporters of DADT with their sound bites. On Dec. 3, SASC is slated to hear from the vice chairman of the Joint Chiefs of Staff, James Cartwright, as well as from the four service chiefs: Gen. George W. Casey, Jr., chief of staff of the Army; Adm. Gary Roughead, chief of naval operations; Gen. James F. Amos, commandant of the Marine Corps; and Gen. Norton A. Schwartz, chief of staff of the Air Force.

To one degree or another, all four service chiefs expressed unease with DADT repeal legislation earlier in the year. Gen. James Amos, the new Marine Corps commandant expressed concern earlier this month about ”unit cohesion” and ”combat effectiveness” if DADT were to be repealed, based in part on his concerns about the ”intima[cy]” of combat. Although some of the other service chiefs have made statements supporting the working group’s efforts, it is not yet clear whether they will testify on Friday in support of legislation repealing DADT.

Even as the hearings move forward and are a likely necessary and helpful step for repeal efforts, the timeline for actually accomplishing repeal in the 111th Congress tightens with each day that passes. So, in addition to everything going on formally, the week will be essential for lining up the votes to proceed to debate on the National Defense Authorization Act, which contains the DADT repeal language.

The courts, which have been recently used by the administration as a prod for congressional action on DADT, are the main event when it comes to federal action on marriage equality in 2010. In three rulings from two judges this year, restrictions placed on same-sex couples’ relationships have been struck down as unconstitutional.

On Dec. 6, the U.S. Court of Appeals for the Ninth Circuit is slated to hear oral arguments in the appeal of one of those cases: Perry v. Schwarzenegger, the challenge to the constitutionality of Proposition 8. The arguments, which are slated to last two hours with a brief recess in the middle, will be televised live on C-SPAN.

Ted Olson – the solicitor general at the Department of Justice at the beginning of the Bush administration – will be arguing that the Aug. 4 ruling striking down the 2008 California constitutional initiative limiting marriage to one man and one woman should stand for one of two main reasons.

First, Olson and his co-counsel, David Boies, have argued in written filings before the court that the proponents of Proposition 8 have no right to appeal the decision – an issue of standing – because the decision does not impact them directly or force them to do anything. It is, instead, only the state officials who have chosen not to appeal the ruling who have the right to do so.

Should the Ninth Circuit hold that the proponents – or Imperial County, which also had sought to intervene in the case to defend Proposition 8 – does have standing to appeal U.S. District Court Judge Vaughn Walker’s ruling, the Perry plaintiffs argue that Walker was correct on the law and Proposition 8 should be held to be unconstitutional as a violation of equal protection and due process of law.

By Dec. 7, nationally televised hearings will have been held – in two branches of government and on opposite ends of the country – into marriage and military discrimination against gays and lesbians. The impact of both could be tremendous – and will have been helped along by some of the most unexpected of straight allies.

They also – regardless of the immediate results – will help make clear some of the challenges ahead and the work that remains as equality efforts for all lesbian, gay, bisexual and transgender people move forward.