No Harm Done? (or, Don’t You Stay)

October 16th, 2010

A follow-up to our earlier piece, Injunction Junction, inspired by Don’t Stay the ‘Don’t Ask’ Ruling (New York Times 10/16/10).

DADT repeal opponents and go-slowers act as if there’s no harm done,

In delaying equal rights’ application to everyone.

But each additional person under DADT discharged

Makes the harm of DADT enlarged.

Allowing DADT to go on is “no harm done?”

Those are actual harms that can’t be undone.

And the supposed harm of not discharging those folks

Is at best questionable, but more likely a hoax.

But even if what go-slowers say is true,

What harm does not discharging people during the appeal do?

At worst, it lets gays stay in the service a little bit longer.

(More likely, it makes unit cohesion and the military stronger.)

Everyone knows there are gays in armed forces,

But even the minority that DADT endorses

Knows it’s impossible to get rid of all the gays at once

Regards of what the anti-gay minority wants.

Since no matter what, there will be such a delay,

Why not postpone enforcement for everyone that’s gay?

If the higher courts reverse the appeal,

Then they can throw out gays that themselves reveal.

(That should be a perverse plus to those against repeal

Who would like to get rid of gays that themselves conceal:

If the injunction lures gays into self-revelation,

More gays can later be subject to termination.

But I believe the injunction will be upheld,

And that no more gays will be expelled.)

On one side, a delay in DADT prosecution,

On the other, our Constitution.

To me, the choice is easy,

And it doesn’t matter if it makes some people queasy.

I don’t mind that Justice is mounting an appeal,

Since I don’t think that will halt DADT’s ultimate repeal.

What’s important thing is that a stay on the injunction not be granted,

Given the individual rights that would thereby be supplanted.

When choosing between two harms, stop the one that’s real.

Which is why there should be no delay in  DADT’s repeal.


In deciding whether or not to stay enforcement of her DADT injunction until after the appeal process, Judge Phillips must chose between a questionable theoretical harm to national security and an actual harm to actual individuals.

There are gays in the military, and everyone knows it. The only question is if they will be allowed to serve openly and honestly. If you’re a straight service member, you may suspect that your colleague is gay, or you may not. How are you and national security harmed if instead of suspecting (or not), you instead know? Surveys and anecdotal evidence show that the majority of service members don’t care if a colleague is gay. Are the sensitivities of the few remaining homophobes so precious that they must be protected even though it demonstrably hurts other individuals and national security?

Even if it were true that allowing admitted gays somehow harms the military (the amorphous “unit cohesion” problem), that harm is overshadowed by (1) the documented harm to the military and national security of forcing out servicemen and women in which the military has invested millions (e.g., the still-closeted fighter pilots that appear in the Oct. 13 Rachel Maddow Show below) and whose skills are crucial needed (e.g., Arabic translators), (2) , the harm to unit cohesion of forcibly removing a key member of the team from their ranks (that was well documented in the Air Force nurse case), and (3) the documented abuses of DADT to forcibly out people, or to use the threat of exposure to blackmail closeted gays and/or retaliate against them for personal reasons.

I don’t blame the Obama Administration for continuing the appeal process. As former Solicitor General Walter Dellinger pointed out on the Rachel Maddow Show (watch the interview below), the the Justice Department is legally obligated to defend Congressional laws it disagrees with. Can we imagine what would happen if that weren’t the case? All it would take is one ultra-conservative judge anywhere in the country to throw out healthcare reform as unconstitutional (or do something else equally extreme and illiberal), and a future conservative President could just let that stand. Not a good idea, or a desireable precedent.

It’s an easy call, and it’s the call I expect Judge Phillips to make in favor of allowing the injunction against DADT enforcement to remain in force.


Here’s Rachel’s 10/14/10 interview with Clinton Administration Solicitor General Walter Dellinger, who makes the point about why the Justice Department is obligated to defend Congressional laws it disagrees with, and that the consequences of breaking that precedent might be dire.


Here’s Rachel’s 10/13/10 report, including interviews with two still closeted gay fighter pilots.


Here’s your theme music for today (making a repeat appearance from Oh Don’t You Stay), Stay by Jackson Browne from the album Running on Empty. It’s set to begin at the “Won’t You Stay” part (just mentally substitute “Don’t You Stay” for that), but you can restart it at the beginning if you want to listen to the whole song.

Here’s a scene from the movie Schindler’s List that illustrates my point. It’s the scene at the end of World War II when Otto Schind finds that the German army guards at his factory have been ordered to “liquidate” all the Jewish workers before retreating. Schindler gathers the guards and the Jewish workers together and tells the guards that would be a meaningless (and brutal) act, confronting the guards with their intended victims’ personhood. Not that I (necessarily) want to equate DADT repeal opponents and go-slowers to Nazis, but if DADT is going to end (as almost everyone believes it will, in one way or the other), what is served by adding more human sacrifices to the alter of a failed policy?

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Posted in Courts, Freedoms, National Security | 2 Comments »

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2 Responses to “No Harm Done? (or, Don’t You Stay)”

  1. Newsericks » Blog Archive » (En)Join the Party Says:

    […] follow up to No Harm Done?, inspired by BREAKING: In DADT case, ‘the Court DENIES Defendants’ Application for a […]

  2. Newsericks » Blog Archive » A Reprieve? (DADT Doesn’t Need It Or Deserve It) Says:

    […] review of the case. Needless to say, I’m disappointed, since I believe (as described in my earlier pieces) that suspending enforcement itself causes no harm (as evidenced by the fact that there […]

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