No Middle Ground

The Obama Administration won't challenge a legal ruling on gays in the military, but will fight it in the lower courts.

A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case.

The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there [...]

White House spokesman Ben LaBolt said the president remains committed to repealing the law "in a sensible way that strengthens our armed forces and our national security" but added: "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."

There's something to be said for following the law and past precedent. But first, the President could easily put a moratorium on firing gay and lesbian soldiers today, and second, this respect for the law hasn't extended to many, many other policies that the President has overturned. Only in the area of gay rights, it appears, must those laws be followed to the letter.

As Joe Subday notes, the LGBT community is organized and impatient, and these games of "we want to repeal it, but until then we'll follow the law" won't fly for much longer.

There's a case in the pipeline on the Defense of Marriage Act (DOMA) already, which challenges Section 3 of that law. The lawsuit, Gill, et al. v. Office of Personnel Management, et al., was filed in March. The head of the Office of Personnel Management is gay, coincidentally. Will the Obama administration defend DOMA in court, too? Will the gay head of OPM defend DOMA?

If the White House thinks signing the hate crimes bill is enough, which it appears they may do soon, they're wrong. And, a beautiful proclamation about gay pride won't cut it either. The times have changed and the President and his people need to catch up -- fast.

It seems that Obama's fetish for a middle ground actually hurts him here. Either gays and lesbians have the same rights as all Americans or they don't. There's not a "common ground" position to take.