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From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in New Republic on February 19th:

Last month, Obama told this magazine that his slow, methodical plan to end “don’t ask, don’t tell” (DADT) had worked. The proof, he said, was that “not only did we get the law passed, but it’s caused almost no controversy.” The president defended his decision not to stop the firings by executive order with the argument that he needed time to build Pentagon buy-in. Had he “just moved ahead with an executive order, there would have been a huge blowback that might have set back the cause for a long time.” Obama first set up this revisionist narrative back in 2010, on the day he proudly signed repeal of the gay ban into law. He told The Advocatethat “things don’t always go according to your plans” in Washington, “and so when they do,” it can be “pleasantly surprising.”

Yet perhaps no one was more surprised that DADT ended in 2010 than the president himself. As a new academic volume (a special issue of the Journal of Homosexuality edited by former military officers) shows, ending the ban was not the White House plan at all for 2010. Obama’s plan, such as it was, was to push repeal off until 2011, when it was unlikely to have passed Congress. Indeed, the real story of what happened in the effort to pass the most important (and only the second ever) piece of pro-gay federal legislation is not as flattering to Obama as his own narrative. The real lesson it provides is that it’s often incumbent on activists to force political leaders to get things done.

Six weeks into Obama’s first term, gay rights advocates were growing skeptical that the White House had a viable plan to end DADT. Responding to the impatience, a White House spokesperson said the president had “begun consulting closely” with Defense Secretary Robert Gates and the uniformed leadership about ending DADT. Yet shortly afterwards, Gates contradicted the statement, saying talks with the administration had “really not progressed very far” and that “the President and I feel like we’ve got a lot on our plates right now, and let’s push that one down the road a little bit.” A Pentagon spokesperson confirmed that Gates “has had one brief conversation with the President about ‘Don’t Ask, Don’t Tell.’”

While many in the LGBT community wrung their hands, wondering when the president would make repeal a real priority, others already knew—and appear to have approved—the timeline. Even before Obama was inaugurated, House Speaker Nancy Pelosi met with leaders from the major LGBT organizations and, according to National Journal’s Marc Ambinder, agreed that DADT would not move until after hate crimes legislation and a federal employment non-discrimination bill. Joe Solmonese, then the leader of the most powerful ot the gay rights organizations, Human Rights Campaign (HRC), said in an August 2009 interview that he saw “a road map of six-month windows: the hate crimes bill, then the Employment Non-Discrimination Act, then don’t ask, don’t tell.”

There was one problem. This took the repeal timetable to February 2011. And since historically the party in the White House loses seats in mid-term elections, many had warned that 2010 was the last window for action anytime soon, as a Republican-led House would be unlikely to move repeal forward. The White House, according to Ambinder, hadn’t yet adjusted for this possibility as late as February 2010, and it signed onto a deal with Secretary Gates for the Pentagon to spend the year studying the issue to build support for repeal. The plan was not to vote in 2010 but in 2011. This became clear when the president declined to put repeal into his mark-up of the Defense spending bill, which most advocates assumed gave it the best chance of passing. Barney Frank, normally a close White House ally, complained that the failure to attach repeal to the Defense spending bill showed that “they don’t want it done this year.” Politico corroborated the charge, reporting in April 2010 that the White House was quietly urging members not to vote on repeal in 2010. When asked by LGBT leaders how Obama planned to repeal DADT in a Republican House, the administration’s DADT pointman, Deputy Chief of Staff, Jim Messina, had no answer.

LGBT advocates, however, had an answer. They would pressure Washington publicly and relentlessly to make it happen by 2010, and brook no calm reassurances to let the process take its course. This process began, actually, in 2009 when the Palm Center (where I worked at the time) publicized a report showing that the president had the power to stop the discharges with an executive order. The idea was not so much to get the president to sign the executive order as to use the president’s power to pressure him to act.

We paired the “executive option” with news of the pending discharge of Dan Choi, a West Point grad and Arabic linguist who had come out on national TV. The revelation of Obama’s executive option, paired with the personal story of Dan Choi, was an explosive combination. The idea that the president had the power to stop gay discharges but was choosing not to, combined with the testimony of Choi and other service members who simply wanted to serve their country, personalized the issue. It gave activists and the media something specific to press the administration on. And, coming at a time when gay advocates had begun to criticize the administration for making little progress on LGBT equality, the mainstream media picked up on the story like at no time before—and confronted the White House repeatedly.

Many people criticized the executive option—including supporters of repeal—as legally or politically unworkable. But, as I showed in TNR, the president did have the power to suspend discharges with the stroke of a pen. More to the point, broadcasting that he had this power was a highly successful tactic to compel him, and others, to take repeal seriously. A Lexis-Nexis search shows that mentions of “don’t ask, don’t tell” tripled after news broke of the executive option. In the president’s first 100 days in office, the issue never once came up in the White House briefing room; but starting the day after news broke about the executive option, Press Secretary Robert Gibbs was asked a dozen times in just two months to explain why the president was failing to end firings he had repeatedly opposed.

The White House became increasingly defensive about the executive option. When Anna Quindlen, then a Newsweek columnist, called on the president to “immediately issue an executive order suspending this irrational and prejudiced policy,” Press Secretary Gibbs called Newsweek angrily demanding a correction. The White House maintained—at first—that Obama lacked the authority to take that action. Quindlen and Newsweek held firm, the start of a year of stuttering, evolving and ultimately unconvincing retorts by the White House to the very simple question of why the president was not using his power to do what he claimed he wanted to do (the latest incarnation of this reply was not that the president lacked the authority to do it but that a legislative solution was more “durable”).

Establishing the president’s power—and failure—to act allowed LGBT advocates to force Washington to take them seriously. This included not only the White House and Congressional Democrats, but HRC, the powerful gay rights group that many smaller LGBT groups and individuals had long criticized for playing an ineffective inside game. By 2010, recognizing that repeal had momentum, the group said it engaged in “a shift of the organizational resources” to focus on repeal, even though its membership rated employment protections and same-sex marriage as higher priorities.

One maverick LGBT group in particular, GetEQUAL, was able to gain traction in Washington with headline-grabbing direct actions, such as chaininguniformed personnel (including Dan Choi) to the White House fence, anddisrupting Democratic fundraisers. The White House, which claimed it did not react to pressure tactics, reached out quietly to GetEQUAL after these actions, as it had to Newsweek to protest Quindlen’s critique. Obama wasfurious after he was heckled at a fundraiser for Barbara Boxer, asking Messina, “What is it about what we are doing that they don’t get? If they want to protest, they should go protest someone who was against this.”

The pressure tactics contributed to a White House “course correction,” according to Ambinder, in which it backed compromise legislation in May 2010 that would pass repeal but delay its implementation until the Pentagon had finished its year-long study. That compromise angered Secretary Gates, who had wanted the Pentagon to finish its study before any legislation was considered. But the White House felt it had no choice but to act.

In the end, that’s what ensured legislative success that December. Although the Senate filibustered repeal twice as part of the broader Defense spending bill, a stand-alone bill passed on December 18. LGBT advocates had publicly forced the administration’s hand, making it too costly to let repeal float into 2011. And repeal arguably started an avalanche of LGBT progress. Seeing so little blowback to this major step, the administration announced two months later that it would stop defending the Defense of Marriage Act. The next year Obama came out personally for same-sex marriage and was unaffected at the polls in November, when three states bucked a 30-state trend and endorsed same-sex marriage at the ballot box.

As a candidate, Obama said, “I want to hold our government accountable. I want you to hold me accountable.” It was an echo of Franklin D. Roosevelt’s, “I agree with you, I want to do it, now make me do it.” LGBT advocates did just that when they held out the possibility of executive authority to pressure the president and Congressional Democrats to do the right thing. Obama could do worse now than to use that power to acknowledge their role.

One comment

  1. President Obama is doing a stellar job in regard to gay rights.
    Change.Org

    What must be focussed on is the rights of women and children. The Resignation of Columbia University Law School Alumni Grad and Judge, Laura Drager…is being demand by hundreds of Litigants at Change.Org

    Her deeds and decisions are known throughout all of Columbia’s Legal Alumni. She overlooks abuse of women and children in lieu of the the wealthy spouse.

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