Secretary of Defense Robert Gates, at a press conference in connection with diplomatic and defense meetings held in Australia, urged that DADT be repealed by Congress during its lame duck session in December.  With the Pentagon’s long awaited “study” of the wisdom of repeal of DADT forthcoming in December, the Obama Administration and Congressional Democrats could try to push the repeal through Congress before newly elected Republicans are seated in January.

Of course, the politics here are tricky.  The Justice Department has been arguing in the Log Cabin Republicans case now pending in the 9th Circuit that a lower court order finding DADT unconstitutional should be stayed because the Pentagon needs time to figure out how to train military personnel on the inclusion of openly gay people in the military (how to react when soap hits the shower floor??).  If the Administration pursues Congressional repeal in December, it  undercuts the arguments it’s making in court that they need more time to figure out the details of implementing the repeal.

One favorable scenario, from the perspectives of both the Administration and those outside government favoring repeal is this:  the Pentagon report is issued in December recommending timely repeal of DADT, setting out procedures and timetable etc.  Congressional Democrats then force the repeal vote, and it fails, which is likely.  The Justice Department could then go to the 9th Circuit and the Log Cabin Republicans and either 1) represent to the court that they are no longer going to defend DADT and let the Court fashion a remedy that will probably look like the Pentagon Report’s recommendations, which is likely since the court’s order lifting the lower court stay pointed to the importance of deference to military judgment, or 2)  agree to settle the case for terms basically the same as those set out in the Pentagon Report.

This way, the Administration will have exhausted legislative repeal and will have to “surrender” to judicial repeal.  Not a bad strategy, and maybe the strategy they’ve been planning all along.


  1. Gates Urges Lame Duck Congress to Repeal DADT – Next Step In a Larger Administration Strategy? http://wp.me/ploC4-Lw

  2. Via @ColumbiaLaw – Gender and Sexuality Law Blog: Gates Urges Lame Duck Congress to Repeal DADT – Next Step In a… http://bit.ly/9Ap62f

  3. US: Gates Urges Lame Duck Congress to Repeal DADT – Next Step In a Larger Administration Strategy? http://bit.ly/aXL7O8

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