I try never to rain on people's parades. Really, I do. But now that the compromised "don't ask, don't tell" repeal is moving forward in Congress after historic votes last night, I don't want momentum to obscure how we passed legislation to undo discrimination against gay servicemembers without legal nondiscrimination protection for them. As I've suggested all week, this lack renders the repeal process null in my eyes. Yes, there's been much speculation President Obama will issue an executive order barring discrimination on the basis of sexual orientation when repeal is finally "certified" next year (we hope), but a White House directive doesn't have the symbolic power of law. It also can be discontinued by Obama's successor. (This is what happened in Virginia earlier this year when new governor Bob McDonnell stopped nondiscrimination protection for gay state employees after eight years of such under his Democratic predecessors.)
But the evacuation of a nondiscrimination mandate from the DADT repeal process raises two greater questions for me. One is political: Why was the provision dropped? The second is conceptual: What does it mean that our advocates went along with it?
As my friend and former Advocate colleague Kerry Eleveld describes in the best analysis of the compromise so far, LGBT advocates were greeted with news of the mandate's removal when they arrived at the White House on Monday to be "briefed" on the new legislation. Though it's still unclear who decided to drop the mandate, Eleveld's description suggests that it happened without input from advocates. If that's the case, the DADT compromise shows once again how limited the LGBT community's power is—that is, legislation to ameliorate injustice on our behalf, spurred by our activism, was finalized without our say. It bespeaks the major structural change that still needs to happen in Washington—we need more LGBT people in the room when decisions like this go down. (And don't point to Barney Frank, please—he's sold us out before, like the time he tried to pass the Employment Non-Discrimination Act without protections for trans people.)
Nevertheless, our advocates could've walked away from the deal, which lacks the fundamental tenet of the LGBT civil rights movement: equality. (After all, that's what nondiscrimination is.) Would Congressional leaders still have moved forward without the de facto support of the LGBT community? Who knows, but it would've been interesting to see—for once—what happens when our advocates stop kowtowing to Democrats. At the very least, our advocates could've negotiated further—but again, we don't know what they did when they learned that nondiscrimination was gone.
All I know is that the press releases came fast and furious Monday night once President Obama—nay, budget director Peter Orszag—offered his blessing of the compromise. The inexorability of legislative process demands you go along with the course once it's been set or risk suffering bad precedent. I know this. But what about the bad precedent that results from endorsing a plan that betrays the very essence of what we're fighting for?
Equality—nondiscrimination—should be non-negotiable. Yes, we had political victories last night, but at what cost? The means matter as much as the end, and I fear our movement for justice has now been tainted. I can't help but wonder what might've been if our advocates pushed on for a vote on Rep. Murphy's original bill and the creation of a companion bill in the Senate—or if we simply waited for the conclusion of the Pentagon study in December. That's what was signed off on last night, don't forget. People will call me naive, I know, but the alternatives are worth considering—as are our mistakes.
Perhaps a reporter will figure out what happened behind those closed doors on Monday, or perhaps it'll be left to a historian. Either way, accountability requires that we know.