Why Obama Is Challenging the Courts' Pro-Gay Rulings

Gay rights advocates are cheering Tuesday's decision by a federal judge in conservative Riverside, California, to order an immediate end to the military's discrimination against gay service men and women. The Justice Department has not yet said whether it will appeal the order, which applies to the U.S. military worldwide, but already many supporters are calling on President Obama to let the ruling stand. Once again, the President finds himself outflanked by activists, this time Republican gay activists who sued to stop Don't Ask, Don't Tell and who keep winning in federal courts even as Obama himself struggles to keep his promises to end discrimination against gays. Choosing not to appeal carries big risks, and not just for the President. It's true that most Americans support an end to the military's discrimination against gays and lesbians. And it's true that the House has already passed a bill repealing Don't Ask, Don't Tell (though the Senate has so far refused to follow suit). And yes, appealing would mean going to court to defend a law the President has himself denounced as unfair and wrong. But if Obama does not appeal, it's likely that no one else would have standing to do so. The result would be that a single trial judge would then set policy for the entire country on a question of fundamental importance — a situation that the Administration perceives would be an uncomfortable one for a substantial number of Americans. (See Mark Thompson on the 'Don't Ask, Don't Tell' ruling in Swampland.) It's a box Obama finds himself in more and more often when it comes to gay rights issues. Even as U.S. District Judge Virginia Phillips was issuing her worldwide injunction to the military Tuesday, the Administration filed notice it will appeal a federal ruling in Massachusetts that earlier this year struck down another law that is anathema to gay rights supporters, the 1996 Defense of Marriage Act. In its filing, the Administration called the law unfair, and said it ought never to have been passed, but nevertheless argued it does not violate the Constitution. That prompted gay bloggers and others to cry foul, warning that their patience with Obama, who most argue has yet to keep his promises to gay and lesbian supporters, is running out. (See a visual history of the gay-rights movement.) Letting Judge Phillips' ruling stand would be a very good way to get gays and lesbians off the sidelines. But allowing a single judge to overturn "Don't Ask, Don't Tell," without any review by a higher court, could raise questions of legitimacy, and not just about the "Don't Ask, Don't Tell" decision. Gays have won a remarkable sweep of victories in federal court this year — with judges striking down "Don't Ask, Don't Tell," the Defense of Marriage Act, and in San Francisco, a voter-approved state ban on gay marriage known as Prop 8. Those victories have cheered gay rights supporters enormously, but opponents have pointedly noted that Americans continue to reject gay marriage any time the question is to put to the ballot. And while polls show Americans support the repeal of DADT, the fact is that if it were so unpopular, then Congress wouldn't be having such trouble repealing it. The gay marriage case in California has strong parallels to the DADT decision now confronting Obama. The marriage decision is under appeal now, with arguments scheduled to take place before a Ninth Circuit Court of Appeals panel in early December. But already questions of legitimacy have dogged that case. That's because California's elected leaders did what Obama has so far refused to do: Attorney General Jerry Brown and Governor Arnold Schwarzenegger declined to appeal the ruling. For now, a third-party group has been allowed to step in and appeal, but many observers — including the trial judge who heard the case — have said the Ninth Circuit may rule they lack standing. If that happens, gay marriage opponents told TIME, the courts risk damaging their own legitimacy. (See what the Supreme Court gay marriage arguments might be like.)