(a version of this article appeared as the cover story of California Lawyer Magazine’s June 1994 issue)
ABOUT AN HOUR after his swearing-in on a cold, clear January day, Bill Clinton saw Representative Gerry Studds, Democrat from Massachusetts and one of two openly gay House members, in the vast marble Rotunda of the Capitol where the Democrats were gathered for the traditional first Presidential luncheon. Surrounded by the busts of past presidents, the new President went up to Studds, who was standing with his life-partner, Dean Hara, and shaking his hand said with deep conviction, "I'm going to do this, Gerry."
"This" was Clinton's campaign promise to lift the long-time ban on gay and lesbian soldiers in the United States military. It had formed the core around which the gay community had rallied, for the first time in American history, to a presidential candidate, giving the Democratic candidate more than four million dollars and, arguably, his margin of electoral victory. The day after Clinton's remark to Studds, the promise blew up. A firestorm of opposition was launched, led by Senator Sam Nunn, Georgia Democrat and the Chairman of the Senate Armed Service Committee, and openly supported by the Pentagon's Joint Chiefs of Staff. For a week, an increasingly shaken Clinton held tense meetings with Nunn, who, backing himself with a majority of Senate votes, was threatening at any second to legislate the ban permanently into place if the President fulfilled his promise. Finally on January 28th, they struck a deal: Nunn would back off his threat and the military would place gay soldiers on "inactive reserve" while Secretary of Defense Les Aspin studied the issue for six months, after which, in accordance with the findings of that study, the President would issue an Executive Order lifting the ban. Clinton had bought six months of precious time.
In a bit of quixotic timing, the same day Clinton was compromising in Washington, in Los Angeles Judge Terry Hatter of the US District Court of the Central District of California quietly issued a ruling in Meinhold v. The United States Department of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993), brought by a thirty-year-old gay Navy enlisted airborne sonar analyst named Keith Meinhold. With a few minor exceptions, the ban had easily shrugged off years of court challenges on the basis of arguments which lawyers from the Department of Justice (in the early Clinton transition still a creature of the pro-ban Reagan and Bush Administrations) routinely made in Judge Hatter's courtroom: it maintained order, morale, and unit cohesion; it was based on the professional judgement of a long list of senior military officers; and (most importantly) it was covered by the traditional "judicial deference" granted by courts to military-related laws on the understanding that the special nature of the military requires abridgement of certain constitutional rights.
Now came Meinhold. News of the opinion filtered back to Washington, where people faxed it around. Hatter cited Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992), a 1991 Ninth Circuit case which for the first time had resisted judicial deference. Courts, the Ninth Circuit had said, were obliged "to see whether the government [has] established on the record a rational basis for the challenged discrimination." (Emphasis in original.) In other words, the Department of Justice would have to argue for the policy with facts. This had never been done before. Hatter agreed: "As the Ninth Circuit has held, so, too, does this Court hold that deference to 'military judgment,' in the absence of a factual basis for such judgment, would result in the denial of judicial review." Hatter, who was black, went on to note that "[t]he Department of Defense's justifications for its policy... are based on cultural myths... very similar to the reasons offered to keep the military racially segregated in the 1940s." In the last paragraph, Hatter gave his order: "The Department of Defense is permanently enjoined from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States." The ban, for the first time in the country's history, had been held by a court to be unconstitutional.
The next day, the fledgling president held his first press conference at the White House and announced his deal with Nunn, who would be holding Senate hearings on the ban. "The issue," said Clinton, echoing Hatter, "is whether men and women who can and have served with real distinction should be excluded from military service solely on the basis of their status. And I believe they should not. The principle on which I base this position is this: I believe that American citizens who want to serve their country should be able to do so unless their conduct disqualifies them..." The President said that the Meinhold ruling "draws the distinction that I seek to draw between status and conduct." He added firmly, "I agree with the principle embodied in the case."
Clinton was also asked by a reporter whether he would direct his Justice Department, which had days before been in Hatter's courtroom arguing for the ban, not to appeal the anti-ban ruling, but he did not answer. The press moved on to other issues. After all, the President had chosen his side. The gay political groups and their allies-- the ACLU, People for the American Way, and NOW among others-- quickly formed an ad hoc coalition to do the lobbying, public relations, and crucial vote-getting in the Senate and House needed to support the Executive Order that would come in July.
The coalition was called the Campaign for Military Service, and those involved were both nervous and frankly thrilled. It would be a tough battle till July, but they would be working with the White House (indeed, the Campaign was premised on this; Clinton intimate Paul Begala had been present at its inception) and with the President on their side, how could they lose?
That Clinton had chosen to relinquish the issue to the political process rather than take a stand in the courts on Hatter's legal principle was, in the commotion, not widely remarked on.
Today, the Clinton Department of Justice has not only appealed the anti-ban ruling but is arguing in court that the government can discriminate on the basis of sexual orientation. Last December, government lawyers flew out to the Ninth Circuit Court of Appeals in San Francisco to argue Meinhold v. United States Department of Defense. Somehow the DOJ lawyers, led by Deputy Assistant Attorney General Mark Levy, argued before the three judge panel that the ban is necessary to maintain order and morale; is based on military judgment; is backed by "judicial deference." The panel is now weighing its decision. The case will most probably go to the Supreme Court, where Clinton's Solicitor General, Drew Days, will apparently argue that discrimination based on sexual orientation is constitutional. It is a startlingly perfect reversal.
The manner in which Bill Clinton handled this issue says much about the relationship between policy and politics in this country, and, ultimately, about the character and will of the President himself. Of the myriad factions and players in this struggle, the story of those who Clinton originally championed perhaps paints most clearly the portrait of the man.
* * * *
WHEN SHE HEARD NEWS of the President's press briefing comments on Meinhold, Chai Feldblum, a Georgetown University law professor, was struck by their legal implications. Feldblum is a small, energetic, intense black-haired woman of thirty-three who clerked for Supreme Court Justice Harry Blackmun. She is also openly lesbian, one of a small group of gay and lesbian lawyers around the country who for years had been toiling in and out of the courts on various gay-rights cases. Feldblum had devoted much thought to the problem of how homosexuals fit into the Constitution and had taught a course at Georgetown entitled "Sexual Orientation and the Law." To Feldblum and others, Clinton's statement appeared to portend a fundamental change that might sweep the gay and lesbian civil-rights movement into the mainstream of constitutional protections.
After twelve years of Republican Administrations, Democrats were pouring into the Justice Department. Feldblum knew many of them personally, and from what she could tell, most were committed to opposing discrimination based on sexual orientation. As for Clinton's statement, she had one niggling problem with his "status versus conduct" distinction; since being gay included gay sex as inevitably as being straight included straight sex, she wished he had phrased it as "status versus misconduct." Still it made her glad (though not surprised) to be told explicitly that the President agreed with Judge Hatter that the ban was unconstitutional. "Hey, after all," Feldblum said at the time, "Clinton is a constitutional lawyer. So he knows what he's saying."
The first week in February, Feldblum got a call from Tom Stoddard, a professor at New York University Law School and a former Executive Director of the Lambda Legal Defense and Education Fund, an organization dedicated to litigating gay civil rights cases. At forty-six, Stoddard was perhaps the best known gay civil rights attorney in the country and had been chosen to head the Campaign for Military Service coalition, which had recently encamped in an office near DuPont Circle in Washington.
Would she, Stoddard asked, head the coalition's legal component? This meant writing the replacement policy for the Defense ban and make sure it was constitutional while at the same time dealing with the array of legal challenges to the ban like Pruitt and Meinhold that were moving through the courts. And she had six months to pull it all together. Feldblum accepted and threw herself into the work.
She began almost immediately with a minor crisis. It involved the Clinton/Nunn deal and an unforeseen paradox it had created [3]. The problem was the Meinhold opinion.
Hatter's order against the military's discharging gay soldiers clearly contradicted, and thus threatened, the Clinton/Nunn political deal, under which servicemembers who stated they were gay would be placed on inactive reserves, stripped of pay and benefits-- essentially a suspended discharge. (Those found to have had sex were still expelled under the deal, which, in Clinton's formulation, separated homosexual "status" from homosexual "conduct.") If the delicate process collapsed, it would trigger Nunn's threat of the Senate voting the ban into Federal law (Indiana Senator Dan Coats was rumoured to be on the verge of introducing a bill), and law cannot be undone by Executive Order. Clinton would be powerless, and the battle lost. Feldblum concluded that, paradoxically, these cases had to be stopped from producing more pro-gay legal victories like Hatter's because they would torpedo the political process, leading ultimately to defeat.
And so two weeks after the ruling, on February 12th, in a seemingly bizarre contradiction, the Clinton Department of Justice asked the appeals court to "stay" Hatter's pro-gay injunction and allow the military to remove gay soldiers to the reserves. The gay community was outraged, but Feldblum played ball as she assumed the White House wanted her to, telling the New York Times she supported the Justice Department because she supported the President. In an open letter to the gay community, she explained: "The Campaign for Military Service believes it is deeply unfortunate that... a Clinton Department of Justice had to ask for a stay of a good district court ruling that the military ban... is unconstitutional." However, she continued [ITALICS:] "Anything that jeopardizes this compromise could result in another Republican amendment being offered AT ANY TIME on the Senate floor-- an amendment that we will in all likelihood lose. The game would then be over."
But in return for her "accommodationist" policy, she wanted something from DOJ. She proposed a strategy. The lawyers to the two parties in the Meinhold case, the DOJ and John McGuire, a young Los Angeles attorney, would ask for a "stay" of the Meinhold case, a freeze on it's journey up the rungs of the appeals process. With the case stayed, neither side would have to "brief" it, put forth their legal reasoning. Feldblum would thus abort any Clinton Justice Department anti-gay arguments that the ban was both constitutional and pour oil on potential waves made by the cases. By July 15th, Clinton would have issued his Executive Order, and Meinhold would be moot; until then, deep freeze. It was a neat arrangement.
The DOJ agreed. She called John McGuire, with whom she'd never spoken, in California and explained her strategy. McGuire countered strongly with his own strategy: get the government not to appeal the case at all, but Feldblum hung up satisfied that he was "on the 'stay' program."
[4] On March 12th, the Ninth Circuit seemed to close the issue with a surprise. Since the government had argued that putting openly gay soldiers in the reserves (which Nunn's deal mandated) wasn't truly discharging them (which Hatter had forbidden), they ruled the Nunn deal and the Hatter order did not conflict and could stand together. 'Whatever!...' said Feldblum. The status quo was frozen. Her strategy was on line. She heaved a sigh of relief and turned to the Senate Armed Services Committee hearings and General Norman Schwarztkopf.
Schwartzkopf, on May 11, testified that in his experience, openly gay soldiers destroyed unit cohesion. "Homosexuality is not the problem," he said. "Open homosexuality is the problem." Marine Colonel John Ripley demonstrated the point perfectly. "To think," Ripley told the House committee with unalloyed revulsion, "that these walking repositories of disease would be allowed near us is shocking..."
One point that increasingly concerned Feldblum was Clinton's "status versus conduct" distinction, which the President repeated whenever he was asked about his forthcoming policy. She wrote a warning memo with her signature italics and faxed it to the White House: "The president's statements could lead to the Department of Defense developing a recommendation that... does not protect people who engage in private... gay conduct... Those in the military who do not support the President's approach in the first place may try to use the President's unclarified comments as support for their position." Stoddard also pressed this point when he and other gay leaders met with Clinton at the White House on April 16th. Actually, it was "status versus misconduct," Stoddard stressed politely to the President. "Status versus conduct" was an artificial distinction as workable as accepting left-handed soldiers while forbidding them to shoot left-handed. Clinton nodded thoughtfully and said he understood the distinction. It was a good point. But at press conferences he continued to talk about "status versus conduct."
THE DEPARTMENT OF Defense had task forces working on various proposals for the new policy, ranging from one lifting the ban completely-- allowing gays and straights equal private, consensual sex and public self-acknowlegement-- to a conservative one which would give gay soldiers neither freedom of speech nor private conduct, essentially recreating the ban. It was assumed that the conservative option would be proposed by the Military Working Group, an internal Pentagon task force. Feldblum and other members of the Coalition [5] were invited to address them in June.
Feldblum argued before the uniformed officers that the ban, since it was based on prejudice, would sooner or later be found unconstitutional. She pointed to two Supreme Court opinions, Palmore v. Sidoti, 466 U.S. 429 (1984) and City of Cleburne v. Cleburne Living Center, Inc, 473 U.S. 432 (1985). Cleburne held that prejudice could not serve as a legitimate rationale for law. Legislation, said Cleburne, "must be rationally related to a legitimate governmental purpose." And Palmore, one year before, had said that "catering to the prejudice of others" by definition could not be a legitimate governmental purpose. Look at Meinhold, she reminded the generals. This was an opinion which relied on Cleburne. They were looking at legal reality. They could recognize it now or they could recognize it later.
Feldblum found the officers very engaged. One asked her afterward, "Well, can you tell us what it's like being gay or lesbian?" She used the opportunity to explain why separating "status" from "conduct" completely misapprehended the nature of being gay, or straight, for that matter. "When I say I am a lesbian, that inherently and logically cannot be separated from the fact that I love another woman sexually," she said. "That is what the statement means." General John Otjen said privately afterwards, "You know, this will happen, and we will deal with it." Feldblum was cautious about the final effect. "I think they understood it intuitively, but they just didn't want to accept the inexorable conclusion." But Stoddard, who had observed from the sidelines, said it was the most moving experience that he'd had thus far in the campaign, "an entirely fair and open-minded hearing." He was extremely optimistic about getting a good policy.
At noon on June 18th, Feldblum and the Campaign's coalition members met with senior Clinton adviser George Stephanopoulos at the White House to discuss the developing policy. Feldblum presented three conditions that she considered "dealbreakers:" 1) No discharge based on homosexual status, 2) equal enforcement of the military's code of conduct, and 3) no restrictions on private speech. In exchange, she said, the Campaign would secretly trade away two things, public declarations of sexual orientation, and all public displays of affection such as same-sex dancing in clubs. As with the Military Working Group, Feldblum stressed that under the legal standards established by Cleburne and Meinhold, Stephanopolous must understand that a policy which included the dealbreakers was the minimum that would pass constitutional muster.
Stephanopolous listened attentively and laughed at some of Feldblum's jokes. He said he would take it under consideration. Tom Sheridan, the Campaign's lobbyist, was painfully aware of both how much political support for lifting the ban Stephanopolous was looking for and how little there was. Barney Frank, an openly gay Democratic Congressman from Massachusetts, had been stressing the need for constituent letters as far back as December, when he issued the gay leaders a memo about it, but nothing had happened. A Congressional staffer told Sheridan that her Congressman's mail was running 400 to one for keeping the ban. "I have gay friends," she added, perplexed, "and they're not writing. They sort of act like, If it happens, great, if it doesn't, well, too bad."
Another staffer advised Sheridan of his boss, "The way you change his mind is, when he goes around, if he hears support for lifting the ban from people in his own district. And he's not hearing it. Look at who he drinks beer with on the Fourth of July. Christ, these are people who don't even know they've got gays in their own families cuz there's so much prejudice against gays in Missouri that people just don't come out there. People don't understand homosexuals until they know someone who's gay. That's the fundamental issue."
Sheridan nodded, adding gloomily, "And that's why [the military is] so stuck on speech. They understand on some level that once they allow people to speak, to say they're gay, that's the end, it's all over." Sheridan was up against the fact that of gay Americans, those who were liberal were both most likely to be out and most ambivalent about the military while the conservatives, for whom the issue was viscerally crucial, were usually closeted, unwilling to contact their representatives; ironically, the most conservative gays were most likely to be in uniform and thus least able of all to speak out.
Still, he was industriously getting the political message out on Capitol Hill, working for votes with Studds and Frank. The policy seemed to be developing in the right direction.
On Tuesday, June 22, everything collapsed. The Washington Times ran an alarming front-page story that Aspin was circulating a draft memorandum essentially buying the most conservative option. At 6:30 at the Pentagon, Feldblum met with Rudy de Leon, Special Assistant to the Secretary of Defense and a veteran Capitol Hill operative who was handling the gay issue at the Defense Department. He told her the battle was over. Aspin had lost to the chiefs.
Feldblum countered by urging de Leon not to go with less than the dealbreakers. Again, her reasons were legal. If Clinton adopted the ultra-conservative policy, she reminded him, the lawyers in the Department of Justice--"the Clinton DOJ"-- faced with having to win a battle the Pentagon had created, would be forced as a matter of legal strategy not only to write a strong anti-gay brief but to argue that gay people be given the lowest legal standard of review.
Standards of review-- there are three of them-- are the measures by which courts judge the constitutionality of laws that classify people based on a characteristic like age or economic status or religion. Each characteristic gets its standard of review from case law, which evolves based on history, politics, science, and the feelings of society. Thus in this country race, for example, falls under the highest standard known, in the legal term of art, as "strict scrutiny." Laws classifying people by race must pass the test of being "closely related to a compelling state interest," which means in practice that it is virtually impossible for such laws to withstand constitutional challenge-- "Asians can't buy alcoholic beverages," for example.
The next standard down, "intermediate scrutiny," is applied to laws that distinguish people based on characteristics like gender, the rationale being that there are certain, limited cases where the government can legitimately take gender into account. Limiting alcohol consumption by pregnant women is, arguably, such a case. Still, it's a tough standard. The third and basement standard, "rational basis," is the easiest test to pass and where the courts have usually put sexual orientation. Characteristics judged under rational basis merely have to be "rational," and are virtually never overturned by courts, making laws which discriminate against gays as easy to defend as laws which discriminate against the rights of fourteen-year-olds to buy beer. Almost no one argues with them.
As Feldblum and other gay rights attorneys knew, the strict scrutiny standard (which was created for race) has been an invaluable weapon for the black civil-rights movement, allowing sucessful challenges against virtually all laws that sought to limit people based on their race. Feldblum had always assumed that in the first gay rights case involving the Clinton Administration, a longstanding hope of the gay attorneys would be fulfilled: the Justice Department would argue to the court that sexual orientation should be raised from rational basis to strict scrutiny, which gays so needed to win their civil rights cases in court. And here was De Leon, talking about the exact opposite, a policy which would force the Justice Department to argue to the courts that gays should stay in the bottom category. Clinton's Justice Department, Feldblum pointed out with a trace of indignation to de Leon, would surely never make these arguments about racial minorities or women.
And what was more, she said, politics and law were converging dangerously. The disintegrating political situation was creating a military policy on a collision course with Cleburne and Palmore, but the danger now included legal bleed-over into the civilian realm. The arguments that Justice lawyers would be forced to use to defend the conservative policy against those Supreme Court opinions (for example, that simple prejudice against gays could justify law) would, anyone could see, apply equally to gay people anywhere, inexorably steering Justice Department arguments in legal battles on housing, employment, adoption, marriage, and all the areas where gays were currently fighting in the courts for equal rights. "Forget the military," said Feldblum. This policy would start creating bad constitutional law for gay people in civilian contexts.
De Leon, a red-haired, careful, cat-like man, pondered this for a moment. He asked Feldblum what she recommended.
Have the President put out a principled executive order, she urged, that categorically opposed discrimination based on sexual orientation. Congress might override him and codify the old ban-- "would" corrected de Leon-- and Clinton would suffer a political loss, but anything was better than the across-the-board legal disaster that the conservative policy would create.
"Can we get the Attorney General to say to the President what you just said to me?" de Leon asked.
"Let me see what I can do," Feldblum said. De Leon told her that neither the Department of Defense nor the White House had brought the Justice Department, their lawyers, into the dialogue on the policy, which she found bizarre bordering on incompetent. But it gave her an opening, the desperate hope that throwing Janet Reno into the mix might wake them up.
Feldblum spent the next day, June 23, on the phone trying to make the Justice Department connection, faxing memos to Stephanopolous and everyone else, and forgetting to eat. It culminated in a meeting that night with two Assistant Attorneys General, Walter Dellinger and Eleanor Acheson (granddaughter of), from 7:00 to 9:00 at the Justice Department. They found Feldblum's reasoning "persuasive." Feldblum stressed that Reno herself needed to brief Clinton on the legal mess the conservative policy would create and head him off. They said they would look into it.
The next day, Acheson called Feldblum at 5:00 to say things were going fine and that Reno was being briefed that day between 5:00 and 6:00. But there seemed to be a little problem, Acheson said understatedly; somehow the Meinhold case was on the Ninth Circuit's briefing schedule, and the Justice Department had to "brief" it, submit their legal arguments that Hatter should be overruled. Feldblum's jaw dropped. She asked when the deadline was for the briefs. End of business Monday, said Acheson. This demon case Feldblum had thought deep-frozen was not only breathing but sprinting ahead. Obviously Reno could hardly argue to Clinton this week against the Pentagon's policy if next week her people were in court asserting that policy's exact arguments.
The bad news, said Acheson, and the reason the case was moving forward, was that two months earlier McGuire had opposed the DOJ's request for a stay. The good news, said Acheson, was that there was an easy way to dodge the brief, which was simply getting a short-term extension. Feldblum, tense but calm, assured Acheson there was some mistake. She and McGuire had talked months ago, and he had agreed to a stay. She would call him to clear things up.
Hanging up with Acheson at 5:05, she called McGuire in Los Angeles and received "the shock of my life." McGuire told her he was probably not interested in an extension.
Feldblum explained, with mounting tension, that briefing the case would undercut the strategy she had just painstakingly put in place, getting Reno to explain to Clinton why they couldn't go with the Pentagon policy. McGuire countered that while that sounded nice, he was a lawyer, and this seemed to put his client at a tactical disadvantage. McGuire was disinclined. Feldblum yelled, "I can't understand why you're doing this! I'm terrified that you're undermining our entire policy."
McGuire agreed to think it over. Feldblum said fine, but she wasn't leaving the office till it was resolved. Then there was nothing to do but wait. Feldblum tried sitting at her desk in the empty building, but she was too distraught to look at her papers, so she sat in the receptionist's area. A Campaign staffer, a gay former Air Force Major, came to hold vigil with her, and together they waited in the night. Trying to lighten things, Feldblum said exasperatedly, "I've never waited by the phone for anyone."
"Yeah," said the staffer, nodding his head seriously, "especially not for a guy."
At midnight McGuire phoned to say he'd spoken with Meinhold, who was equally skeptical anything would be gained. McGuire had never met Feldblum. He had never spoken directly with these Justice officials she was negotiating with in Washington. If, he offered, she could get the Solicitor General of the United States, Drew Days, a black Yale law professor who had spent his career on civil rights issues, to tell McGuire personally that the extension would allow Attorney General Reno to get into the mix and produce a good policy-- then McGuire would assent.
We can arrange that, said Feldblum tightly. She gave him Days' private line, which Days had given her. The next morning at 6:30 AM in Los Angeles, McGuire called the Solicitor General. Days, while promising no outcome, confirmed that an extension would allow Reno to be briefed on the legal problems of a "bad" policy. McGuire acquiesced. Both sides would request an extension in Meinhold.
Five days later, because it was late, a deputy clerk denied the extension.
The Ninth Circuit now said the brief was due in eleven days, at midnight. Feldblum launched another electronic stream of memos at Days in the Justice Department, Stephanopolous in the White House, and de Leon in the Pentagon on how they could at least "punt it" in the brief-- stick to technicalities and avoid making constitutional arguments for the ban. "The potential adverse ramifications of defending this policy are enormous," she faxed Stephanopolous, and, to de Leon, "One of the greatest advances that had been achieved with the Clinton election was having a Justice Department that might finally argue for strict scrutiny... for gay people." De Leon told Feldblum she should be talking to Jamie Gorelick, chief legal counsel for the Defense Department. She tried to reach Gorelick but couldn't. She called and got Bernie Nussbaum, chief White House counsel, and energetically explained to Nussbaum ways they could "punt" the constitutionality issue. Nussbaum, too, agreed there should be an extension. Yet nothing was happening. She wrote a memo on "punting it" and faxed it to everyone.
On Friday July 2, McGuire mentioned to Feldblum that because a clerk, not a judge, had denied the extension, there was an easy way in the Ninth Circuit to get around it: the parties had an automatic right to appeal to a panel of judges. She was baffled; so why the hell weren't they doing it? She called a Justice Department lawyer, who calmly informed her that oh sure, Justice knew about the appeal option. But they were worried that making it would, he said, "alienate the judges." Feldblum erupted. The Clinton Justice Department was worried about alienating the judges? she asked incredulously. In this case? You avoid alienating the judges when you want them to rule in your favor! This is not even a case you want to win, she said, as far as I know!
Feldblum got a hold of Jamie Gorelick, the DOD chief counsel, and reminded her that the coalition, in the face of the wrath of the gay community, had reluctantly agreed to support the Justice Department appeal of Meinhold. But, said Feldblum, the flip side of that deal was that you guys and Justice don't go into court and support the constitutionality of the ban. Gorelick was more than willing to help, but the problem was, she said, that's not what Nunn says.
"Nunn...?" Feldblum said.
Gorelick indicated that Nunn had made it clear to the Administration that the deal with Clinton meant, in his view, that the Justice Department would argue the ban was constitutional.
Feldblum, baffled, said she didn't read that in the deal. Gorelick said doubtfully that she would check on it.
Gorelick called back-- they were both looking at copies of the January 29 Nunn/Clinton interim directive-- and pointed out that according to the agreement, all cases were frozen that dealt with reinstatement.
"And so?" Feldblum said, gripping the phone.
And so, because Meinhold had been reinstated by Judge Hatter and was the only openly gay soldier on active-duty in America, he was not seeking "reinstatement." Nunn was thus reading the January 29 deal as binding the government to freeze all the cases except Meinhold. "That's what Nunn's people say," said Gorelick apologetically. Nunn had found a loophole in the deal and was exploiting it brilliantly; the Justice Department was obligated to argue this one particular case, and to argue against gays, and to do it now, and to do it on the constitutional merits. There was dead silence as she relayed this to the Campaign staff. "The top level response at DOJ was--" She paused to savor the irony. "--'We have our integrity as lawyers.'"
Then on Tuesday the 6th in the Campaign's offices, Feldblum got a brief reprieve. Days called to say he'd gotten the extension, until July 19th. [6] Now, the only question was which policy Clinton would announce.
The deadline was at hand and press speculation was rife. At 8:30 on the morning of July 13, Feldblum and the Campaign's lobbyist, Tom Sheridan, arrived at the Pentagon for a highly confidential briefing with de Leon and a brown haired woman they'd never seen. Feldblum had scribbled a furtive note to Sheridan: "Is that Jamie Gorelick?" It was. Gorelick gave them the gist. Clinton had gone with the Military Working Group's plan, the most conservative. The language of the original ban, "homosexuality is incompatible with military service," was out, but it had been replaced with "injecting homosexuality into the workplace is inherently disruptive." None of the dealbreakers had been met. "Status" was separated from "conduct"; Clinton's inept formulation was now policy. And "conduct" included, in something of a reinterpretation of English, not just actions but merely "statements" that one is gay. In other words, they had lost not only public displays of affection but off-duty, private, consensual sex and even the right privately to acknowledge one was gay. And because the fact of one's existence as a homosexual was prohibited, they had, in essence, even lost status, being gay-- in other words, it dawned on Feldblum, everything.
When Feldblum asked carefully what the difference was between the old ban and the new policy, Gorelick replied that the difference was a "promise" that investigations would not be started on mere rumor. There had to be some evidence.
And then they could investigate? asked Feldblum.
Yes.
And expel.
Yes.
Uh-huh...
And if a gay soldier had private, consensual sex, same as a straight soldier?
The gay soldier would be investigated and discharged.
At 9:25 AM, back at the Campaign, they debriefed Stoddard and David Smith, the Campaign's press chief. The operative phrase of the meeting, which a shaken Feldblum repeated acidly to Smith, belonged to Gorelick. It had been spoken, post-meeting, in the Pentagon hallway. "Jamie," Feldblum had said, "I just feel like we're not getting... anything." Gorelick, entirely sympathetic but truly puzzled by their reaction, tried to be encouraging. "But under this policy," she pointed out, "gay people can be in the military if they're discreet."
"Yeah," said Feldblum, "if they don't get caught. It's the same as now."
The chief legal counsel of the Defense Department hesitated. Yes, she had said, slightly uncomfortably, they had to be "discreet and lucky."
"A lawyer said that?" said Stoddard.
"Jamie was sincerely trying, but she just didn't get it," Feldblum said. "She said, 'You mean you'd actually rather have the ban?' I said yes! Worse than codifying the Reagan ban is codifying a Clinton ban."
"And there goes the Gay Civil Rights Bill," Tom Sheridan said. "This administration is arguing that discrimination against gays is constitutional. Not only is it a complete cave on the campaign promise, it's very dangerous to the movement. They are rolling the commander in chief. It's unbelievable. We scored a big zero."
Feldblum agreed. "It's Clinton saying in order to be gay in a job you have to hide."
At 10:15, they hit the phones. Sheridan had gotten word that the White House had set up a meeting for Congressman Frank with De Leon and Gorelick at 11:15, Studds at 2:30. Obviously the DOD people would be trying to get the two gay Democrats on board the new policy. Sheridan set up a debriefing with the Congressmen on the Hill. Feldblum, trying an end run, reached Stephanopoulos, but within minutes he got another call. He promised to call back. By 4:00, Stephanopolous still hadn't returned the call. "We can't play this game anymore," Stoddard said adamantly. "This is a betrayal. George has had more than enough time to call us back." How, then, to stop the policy?
Smith proposed a press leak. They discussed how to frame it. Smith called Eric Schmitt, the New York Times's Pentagon reporter. "Eric, it's David. Tom and Chai met with Rudy this morning and we're prepared to talk to you." Smith put on the speaker phone, a small plastic box, and did introductions.
Feldblum, who had just entered the room, said, "Um, Eric I just came in..." She motioned to Smith. "Let me get my ground rules straight. This is on background?"
"I need to ID you somehow," said Schmitt's voice, then sharply, "I'm not doing this off the record."
Feldblum said, "Oh," and gulped and looked a little stricken. She and Smith left the room for a moment, came back in. "So we're on the record," said the box definitively. They could hear a keyboard clicking icily. No one said anything for a moment.
They gave a brief overview. "I need to run up and tell my editors about this before they go into their page one meeting," said the box. "Can I call you in five minutes?"
"We'll be here for twenty minutes," said Stoddard, "then we have a meeting on the Hill."
"What about?" the box asked nonchalantly.
Stoddard laughed. "To discuss this."
"Jesus," said Schmitt, "just-- give me five minutes."
After Schmitt had called back, after Stoddard had said, "We've been betrayed by this process," (after Smith had hissed, "The Joint Chiefs--!" and Stoddard, protecting Clinton, changed it to "Lets say the Joint Chiefs have betrayed the President,") after Smith spelled out F-E-L-D-B-L-U-M and Schmitt had hung up, they sat back. The leak was complete. "That was excellent," said Smith encouragingly. Feldblum looked uneasy.
A half hour later in Longworth House Office Building, they met with Frank and Studds to nail down exactly what they were dealing with. Smith gave their take on Gorelick's plan, the two Congressmen each gave theirs. Nothing quite meshed. They began a hot debate as to what Gorelick had actually said. "This is like a soap opera," said Studds exasperatedly. "Our information may be no better than yours-- in fact it's probably changed."
"It looks like you can have a drink at a gay bar with someone of the same sex with whom you live," said Frank. "But you can't kiss that person."
"Very much," Studds observed dryly, "the position of the Roman Catholic Church." Stoddard put his head in his hands and shook it.
"I think it's better than the current policy but probably not sustainable, it's internally inconsistent. We'll keep fighting it."
"How better?" countered Smith.
"I think in practice it means no more witch hunts," Frank said. Stoddard started passionately to dissent, but Frank cut him off sharply, "We disagree on that." Because of the grassroots disaster, said Frank, they were in a very weak position and had better cut their losses and get other things from the administration, things Congress couldn't overturn.
"The principle of non-discrimination has been established for years," said Stoddard, almost yelling, "and now the government steps in and tells us that it is OK, and I can tell you having done civil rights law twenty years that every gay person can be thrown off the job if they say they're gay cuz they're 'flaunting' it."
Frank rejected this. "Will we lose the President's saying sexual orientation is irrelevant to security clearance and extending protection to federal employees? No. The President will do that."
"They're putting out a policy they say is inconsistent?" asked Smith incredulously.
"I'm not a lawyer," added Studds anguishedly to Feldblum, "but don't you think this helps? I don't see how they can possibly defend this policy in court."
That was probably true, Feldblum responded, but it was intolerable because it weakened Cleburne, the crucial Supreme Court decision establishing the principle that prejudice could not legitimize law, and thus it weakened gay rights causes throughout American society.
"If Congress reinstates the policy, what would you have [Clinton's Justice Department] do?" asked Frank. "Not defend it? If they'd done that on civil rights, we would've been outraged. For them to say that 'injecting homosexuality into the workplace is inherently disruptive' is outrageous, they shouldn't be arguing that. But what recommendation do we tell George to tell to the President?"
"I'd recommend to George," said Feldblum, "that if they do a straight cost-benefit analysis, we come out, I believe, that it's worse because it's a restatement in 1993, with this president and both houses of Congress, of an old ban."
Frank nodded. "We've gotta call Reno first thing in the morning," he said. He then underlined the meeting's political lesson. When a bitter Sheridan complained, "We had very little support from the White House, they never lobbied for us," Frank responded sharply, "The White House doesn't have to lobby for us. The question is what do we come up with."
A pensive Studds gave the epilogue. "If we give up on Clinton," he noted gravely, "many of us in this room will not live to see another ally in that place. I think it's basically a political call for the President. His perception is that he's bled terribly for us, and to the degree to which you can communicate you understand that, no matter if you agree or not, it would touch them. I was with him at [AIDS czar] Christine Gebbie's swearing in and he was wearing a blue tie with red polka dots. He pointed at it and said, 'This used to be blue.'"
Frank and Studds left to call the White House. Downstairs, in a rounded marble portico in the lobby of Longworth, Feldblum paced alone, arguing audibly with herself about the leak. She looked pale. Smith lit a desperately needed cigarette. Feldblum was saying frantically to Smith, "I'm not happy and I'm not comfortable... George can say, 'You've gone to the media, now we can't do anything.'"
Stoddard said doggedly, "I want them to hear loud and clear this will not do."
"George isn't like that," Sheridan said confidently. "He's not petty."
SCHMITT'S PIECE MADE the front page of the morning's New York Times. Stephanopolous' call came at 8:15. It was quick and terse: "I can't meet with them."
They were shut out.
On July 19, the day of Clinton's announcement of his policy, Reno, finally, weighed in with her legal opinion. The Attorney General, on whom Feldblum had counted to find the policy unconstitutional, found the reverse. Her legal analysis turned on a distinction between homosexual "status" and homosexual "conduct," the distinction Feldblum had always held irrational. Her bottom line was the old judicial deference argument. "Because of the extraordinary deference paid by the courts to military service," Reno told the President, "we are confident that the new policy proposed by the Secretary of Defense will be upheld against constitutional challenge."
Feldblum, Stoddard, and the coalition members watched Clinton's announcement on CNN, Feldblum talking back to the television, sighing and saying "Oy!" "There is no study," said Clinton from the TV, "showing [homosexuals] to be less capable or more prone to misconduct than heterosexual soldiers."
"Has anyone told this president what policy he's announcing?" whispered Feldblum loudly.
"We now have a policy," said Clinton, "which is a substantial advance."
After the broadcast, Feldman gave her analysis to the gathered coalition members from a copy of the Defense Department's official statement, which Schmitt had faxed to her for comment. Clinton's speech didn't jibe with the policy, she said. "He said 'people will be judged on their conduct,' [not their status], but then, further down in the document, come the words, 'homosexual conduct will be grounds for dismissal,' and then come the words, 'homosexual conduct is any statements.' Which is status. So the premise that gays can serve is incorrect."
Rabbi Lynn Landsberg summed it up. "It's like, you're gay," she said, "but you always have a headache."
TEN DAYS LATER the Justice Department, where all policy decisions were now being made by Democrats, filed its brief in the Ninth Circuit opposing Meinhold. As part of their strategy to crush this court ruling which had struck down the ban, the Democratic lawyers set out to destroy Cleburne, an opinion essential not just to sexual orientation but to the concept of civil rights itself.
In footnote 10 of the Meinhold brief, Frank Hunger, an assistant attorney general and Clinton appointee, and Justice Department lawer Roy Hawkens cited a Supreme Court opinion in a 1993 case called Heller vs. Doe. In Heller the Court had said that any challenged classification (Hunger was aiming at gays) "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis... [Such classifications] may be based on rational speculation unsupported by evidence or empirical data." The Court had gone on to say that it is up to the party challenging the classification to negate every conceivable basis which might support it. The Justice Department argued that gays only deserve rational basis review.
Clinton's lawyers had made a persuasive argument. Heller appeared to cancel out Feldblum's cherished Cleburne.
Then on August 30th, out of the blue, a second California district court, in the case Dahl v. Secretary of the Navy, granted summary judgement to a former gay sailor. The Dahl opinion mirrored Hatter's in Meinhold, and it was acid. "[The Justice Department reads] too much into Heller," Judge Milton Schwartz observed. Schwartz was armed with his own Heller citation, that "even the standard of rationality... must find some footing in the realities of the subject addressed by the legislation." True, Mel Dahl, a gay man who had been expelled from the Navy in 1982, then gotten a law degree and argued his own case before the court, had to negate every conceivable rational basis for the ban. Heller made this clear. But, Schwartz found, he had done just that.
Like Hatter in Meinhold, Schwartz dismantled the pro-ban arguments. First he dispensed with Reno's legal bulwark, judicial deference to the military. "...the principle of deference to the military [does not automatically] require a finding that [a military] policy is constitutional," wrote Schwartz crisply. "'[C]onsidered professional judgement,' no matter how important, cannot outweigh the Fifth Amendment's guarantee of equal protection of the laws to all citizens."
Schwartz applied a two-part test: did the policy serve a legitimate governmental interest? and if so, then was it rational, i.e., constitutional? The judge agreed that any policy that maintained morale and discipline was legitimate as far as that went. The problem was why did the policy maintain morale and discipline. "...all of the reasons asserted by defendants as the bases for their policy are prejudicial on their face. Even assuming that homosexuals threaten 'unit cohesion,'... such threats can only conceivably arise from: (1) heterosexual dislike of homosexuals for moral and other reasons; (2) heterosexuals' apparent fear that they will be... harassed by homosexuals; and/or (3) the notion that homosexuals are uniquely incapable of controlling their sexual desires. These rationales are directly analogous to the state court's concern with social disapproval of interracial marriages in Palmore and the city's concern with the 'negative attitudes' of property owners towards the mentally retarded in Cleburne, both of which were invalidated as based on illegitimate prejudice... [The Defense Department] concede[s] that... homosexuals may serve in the Navy provided that they do not reveal their sexual orientation to others... Given this, the court cannot conceive how the policy cannot be motivated by prejudice."
In a final bit of irony, the judge found that Nunn's Senate Armed Service Committee hearings themselves were the definitive nail in the ban's coffin. "Defendants [the Justice Department] also offer... transcripts of testimony before the Senate Committee on Armed Services," wrote Schwartz. "However, much if not all of this evidence is more harmful to defendants that it is helpful to them..." Recalling the tone of the hearings, Schwartz quoted a 1988 Defense Department report on the issue: "Buried deep in the supporting conceptual structure [of the ban] is the fearful imagery of homosexuals polluting the social environment with unrestrained and wanton expressions of deviant sexuality. It is as if persons with nonconforming sexual orientations were always indiscriminately and aggressively seeking sexual outlets."
But it was Norman Schwartzkopf whom Schwartz quoted for a full page and a half. The General had provided evidence which "can only be construed as providing direct support for the conclusion that the policy is based on prejudice... He stated: 'Are we really ready to do this to the men and women of our armed forces... simply to force [them] to accept a lifestyle of a very well-organized, well-financed, and very vocal, but what turns out to be a very small minority in our society?'" (Schwartz added the emphasis.) To add insult to injury, he applied rational basis, the most lenient form of equal protection analysis, then granted summary judgement on equal protection grounds to Dahl.
"I love," said Feldblum, "the part where he says that the Justice Department's own arguments convince him they're wrong."
Two weeks later, Justice lawyer Tony Steinmeyer argued for the ban before the Court of Appeals for the District of Columbia Circuit in a case called Steffan v. Aspin. Steinmeyer used the same arguments he had used in the Reagan and Bush Justice Departments. He began with deference to the military, but Chief Judge Abner Mikva cut him off: "Mr. Steinmeyer, we don't repeal the Constitution just because it's the military." Steinmeyer offered, "Sexuality is not a benign trait," but then failed to show that it was a malignant one. "While we're dancing on the head of this pin," said Mikva-- the room laughed-- "what is the government's interest in regulating whether or not someone has private consensual sex off-base in a non-military context?"
"The Supreme Court," responded Steinmeyer, "has held that sexual misconduct off base is--"
"Misconduct," said Mikva, leaning forward slightly. "Misconduct."
The room was silent. Steinmeyer hesitated. "Yes," he said. "Misconduct."
When Judge Harry Edwards stopped Steinmeyer to quiz, "What's the evidence on the record?" Steinmeyer began, "Colin Powell dealt with this--" but Mikva and Edwards both shot it down. Stoddard, watching the proceedings, whispered, "It's the 'Colin Powell says so' argument."
It was as if a dam had broken. On September 28, a US District Judge in Washington DC issued a third ruling in a case called LTJG Richard Dirk Selland v. Les Aspin finding the ban unconstitutional. The Judge, Louis Oberdorfer, issued a preliminary injunction prohibiting the Navy from discharging Selland, a young gay submarine officer. The judge noted that the Navy might claim retaining Selland would impose a burden on commanders who would have to deal with tensions between straights and gays. "But, at the merits stage," he continued, "this burden must be compared, in terms of fact and law, with that borne by commanders after the armed forces included blacks and, more recently, women, in their ranks." And besides, said Oberdorfer, "any claim of injury that defendants might have is trumped by the fact that they are perilously close to being in contempt of the Meinhold order."
Hatter had been sending out signals. Two days later, he ordered the Secretary of Defense to his LA courtroom to explain why he should not face contempt of court proceedings for continuing to administer the ban. The Secretary sent representatives, Defense Department officials and a Justice Department lawyer named Vincent Garvey, who argued that they should not be held in contempt because, in essence, they had not understood Hatter's straightforward, six-page order. Hatter grimly promised to rewrite his order so that the Justice Department could understand it.
The next day, on October 1, 1993, bowing to Hatter's order, the Pentagon quietly issued a one and a half page memorandum lifting the ban. Despite everything the Clinton administration had done, the ban was gone.
Within one month, the Clinton Justice Department had reimposed it. On October 30, the DOJ made an emergency appeal to the Supreme Court. The Court, without dissent or comment, lifted Hatter's order except for Meinhold himself, allowing the Pentagon to resume discharging gay soldiers.
A week later, in Elzie vs. Aspin, a DC district court judge struck down the ban as unconstitutional. "Plaintiff did not become any less of a Marine on the day he announced his sexual orientation," wrote Judge Stanley Sporkin, adding, "Indeed... it might well be argued that to deprive our armed forces of the intellectual and physical prowess of some extraordinarily talented individuals strictly because of their sexual orientation would be doing a great disservice to this nation."
On December 16, Justice Department Lawyer Mark Levy stood before the Ninth Circuit to argue Clinton's position on Meinhold. Levy cited Goldman, a case about a military ban on wearing irregular headgear. Levy compared being homosexual in the military to wearing a yarmulke, which, he noted, the Supreme Court had found could be constitutionally prohibited. Judge Janice Riley's eyebrows rose. "Wouldn't the analogy," she pointedly asked Levy, "be saying, 'I'm Jewish?'"
WHEN, BACK IN October, I asked a Justice lawyer why the Clinton DOJ was defending the ban, he paused thoughtfully for a moment and then responded, "I can't answer that. I know [the answer] would start with... there are legal precedents. And if change were to come, it would be as a matter of policy rather than of law... My name was on the Reagan and Bush briefs and I'm a civil servant, so for me it would have been the most natural thing in the world to make the same old arguments, sort of a reflex. For Reno and Drew Days, it would have required a major break to say to the military, We're not going to defend your old policy anymore." He added, "I feel a little uneasy. I've got some friends who I think are gay, although we don't talk about it. I have some sympathy for the military's point of view, but I guess in the forties I could have said the same thing about race, and that gives me pause."
A lawyer for one of the gay servicemembers has a more concise explanation: "The answer is simple. The answer is that they're completely without principles and the political forces control. And thus they take these positions even though they find them personally objectionable... Reno's memo on Clinton's policy was nothing more than providing legal cover for a policy they despise. True, they're lawyers, not policy makers, but this is bullshit because they're also custodians of the Constitution... Look at [Solicitor General] Drew Days. This guy has made his life defending civil rights, and now he's arguing this?" Days, who has reversed course at Justice on several policies inherited from Bush, officially decides whether to appeal the gay cases to the Supreme Court. But Days is not the final word.
Most of the pro-ban government briefs are written by DOJ lawyer Roy Hawkens. Hawkens is the affable jogging partner of Bobbi Bernstein, a young openly lesbian Stanford law school student and, coincidentally, Feldblum's legal intern at Georgetown. The two got to know each other when she was a DOJ para-legal four years ago, introduced by a mutual friend. "I think Pete actually introduced us more for amusement's sake," says Bernstein. "He thought, 'Oh, the gay activist and the government gay basher together.' I thought it would be good for Roy to know a lesbian he's not openly prosecuting."
On pleasant spring days, the DOJ people used to play touch football on the mall during lunch hour, the civil rights divison versus the civil appellate divison. "Roy told me one time," remembers Bernstein, "that if he had to go into battle, he'd rather fight next to me than a bunch of the other guys we were playing football with. So I asked him, How do you justify working to get me kicked out? At that point, I think his answer was, It's not my rule, and I wouldn't have made it, but it's legally defensible."
Do they still talk about Hawkens' work? Oh, yes, Hawkens says, laughing. Hawkens could easily recuse himself and let another DOJ lawyer handle these cases but does not. He and Bernstein have worked out some personal modus vivendi and for now continue to jog together.
Those on the anti-ban side speak of these events hesitantly, with a sort of stunned confusion. One Campaign participant is getting a bumper sticker that says, "First Hillary, Then Gennifer, Now Us." A straight lawyer and staunch Democrat who worked with the coalition is less succinctly bitter: "I think Clinton made the decision that politically he could not take an absolutist position that the ban was unconstititutional, because then he couldn't have worked with Nunn and the chiefs. What's happened is that at the end of the day Clinton has embraced a policy that is essentially the same as the old policy, and defending the new policy, which he is now obliged to do, means defending the old policy... He was driven entirely by expediency into a place he couldn't get out of. It's the traditional complaint about Bill Clinton. He's filling the air with words, but where is the core?"
Chai Feldblum continues to work with Justice, the White House, and Pentagon. She feels, she says, incredibly sad. "The oppression that gay people experience is the oppression of silence. People know I'm a Jew and a woman, but the oppression of silence is what I feel as lesbian. This policy institutionalizes silence, and silence is our greatest enemy."
In January, the DC Circuit took the Steffan decision that struck down the ban en banc, to be reviewed by the eleven sitting judges [7]. In San Francisco, the Ninth Circuit will be handing down its decision in Meinhold.
At least one of the cases is expected to reach the Supreme Court sometime next term, perhaps both. The Court's decision here is probably more cloudy than usual, but one factor might determine the outcome: it is extremely unlikely, given support by both the Executive and Legislative branches for discrimination based on sexual orientation, that the Judicial branch will overrule them.
Unlike Truman in 1948, there has never has been any doubt what Clinton believes. He is personally clearer on the Right and Wrong in this case than was Truman in that one. And Clinton has a luxury Truman did not, a growing body of court decisions to stand on. What more he needs is unclear. It seems the political scars of the first harrowing week are still fresh.
Eleanor Roosevelt's comment on Jack Kennedy when in 1956 he sought her support comes to mind. Roosevelt, no admirer of JFK's, said he was, "someone who understands what courage is, and admires it, but has not quite the independence to have it." She was arguably wrong. In 1961 nearing the feverish peak of America's black civil rights battle, the Kennedy Justice Department quietly dispatched John Siegenthaler to tell segregationist Alabama governor John Patterson pointedly, "There is a strong feeling in the DOJ that these people have got to have access to interstate transportation." In the case of the ban, Clinton has not allowed his personal convictions to divert his Justice Department.
A senior Justice Department appointee stated to me recently, "I don't enjoy being in the position of having to make these arguments. I personally don't think [the ban] should be upheld. I don't think it makes any sense. I think people should be left alone in the military, and if they keep their lives private to the extent that anyone keeps one's life private, and they're doing their jobs, then homosexual or heterosexual, that's the way it should be... What I'm saying is, how do we predict a legal outcome when the President says, Can I do this? It's not for us to respond, 'In the realm of constitutional doctrine this stinks.' That's not the question. The question is, 'Can this be defended?' In this case, the answer is yes. Should it be defended? My response would be no. Their argument is with the President, not the Justice Department. When the President doesn't ask us, when the President just makes a [political] deal, then we've got to tell him what his chances are with that deal. And his chances are very good here because of the deference given to the military...
"I think that there are a lot of things that are morally wrong and should be unconstitutional but cannot be addressed in the courts in that way at a certain time. But that fact does not absolve the Executive from attempting to rescind policies that are offensive given a standard of equal treatment. I think the President had it right when he made the promise during the campaign. These gay-related cases challenging the military are in litigation, and the government is supposed to respond. The President has not said to the Department of Justice, 'I don't want you to defend these cases.' He has not said, 'I want my Justice Department to be on the side of fairness to people without regard to sexual orientation.' If he had said that, the Justice Department would have gone in and said, 'We have a court ruling that the policy is unconstitutional, and we stand by that principle.'"
