The Obama administration won another one today, apparently convincing the US Supreme Court not to hear the case of Army Captain James Pietrangelo II. This time, though, it seems to be at least potentially favorable for opponents of DADT. From the Washington Post:
The Supreme Court today declined to hear a constitutional challenge to the Pentagon’s “don’t ask, don’t tell” policy banning openly gay people from serving in the U.S. military, a move that could effectively leave it to the Obama administration to resolve the long-controversial issue.
In the “don’t ask, don’t tell” case, the Supreme Court sided with the Obama administration, which had urged the justices not to hear the appeal against the policy, even though Obama is on record as opposing it. The court thus spared the administration from having to defend in court a policy that the president eventually wants to abolish pending a review by the Pentagon.
The case, Pietrangelo v. Gates, was filed by James E. Pietrangelo II, a former Army captain who was discharged from the military for being gay. He was originally part of a group of 12 plaintiffs who were dismissed under the policy because of their sexual orientation. The U.S. Court of Appeals for the 1st Circuit in Boston rejected their suit last year.
Pietrangelo appealed to the Supreme Court on his own, while most of the other plaintiffs asked the court to not to review the case, preferring to allow the administration to deal with the issue.
The decision doesn’t surprise me because as the SLDN notes in their press release following the announcement, the 9th Circuit case of Major Margaret Witt is already in motion and unlike Pietrangelo, specifically addresses the constitutionality of DADT. This afternoon the SLDN suggested that they would prefer the case go through Congress rather than through the courts.
The Court’s decision now places greater pressure on the executive and legislative branches to get repeal of this discriminatory law done. Right now, the best place to make our core argument-that openly gay and lesbian service members do NOT negatively impact unit cohesion, morale, or good order-is in the political arena, i.e., in Congress and the White House. Since Cook v. Gates was filed in 2004, a bill has been introduced in Congress (HR 1283) repealing DADT and replacing it with a policy on nondiscrimination. Congress appears receptive to allowing those harmed by DADT to tell their stories and air the facts, and to make the case to the American people about why this law needs to be repealed.
That sounds fair and reasonable. Patience is wearing thin, though, and with President Obama and Congress stalling and/or backpedaling on the issue, a court solution is looking more necessary every day.