looking to the future

DADT was repealed yesterday, and goes to the President today to be signed.

I want to thank Majority Leader Reid, Senators Lieberman and Collins and the countless others who have worked so hard to get this done. It is time to close this chapter in our history. It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed. It is time to allow gay and lesbian Americans to serve their country openly. I urge the Senate to send this bill to my desk so that I can sign it into law. — President Obama, 12/18/2010 press release

DADT isn’t quite dead yet, although the death throes are pretty much present. First the President needs to sign it into law. This is expected to happen later today or tomorrow when it is delivered to his desk. Then begins certification process and 60-day congressional review period. This could potentially take months. This is because of the way the repeal is written: DADT is still technically the law even after it has been signed by the President. There will be an implementation period in which DADT is on its way out, but is still law of the land. Nevertheless Majority Leader Reid and others favor suspension of investigations at this time by executive order (the White House has made no answer to that last). So how long will the certification process take? Given that Secretary Gates has made it quite clear that he sees orderly implementation taking a while, probably at least 6 months and up to a year for full implementation of open service. New rules and regulations will need to be written. And then when they are, there will be a two month period for Congress to review the proposed implementation before it takes effect.

(Much of the above is condensed from The Fight On DADT Isn’t Over By A Long Shot Yet! — which is well worth reading through.)

As for the ongoing legal challenges to DADT: normally, if a law that is the subject of a constitutional challenge in the federal courts is repealed during the course of that trial or appeal, the case becomes “moot”. But the tricky part is that DADT isn’t yet gone. The interested parties will certainly move to dismiss the cases based on the repeal, but it remains to be seen how the judges in those cases will rule there.

To underscore the potential complexity of the certification process, take a quick look at an old ‘friend’ of ours: DOMA. As Andrew Cohen points out in With DOMA, Obstacles Remain for Gay Soliders

For example, now that the Pentagon will finally be recognizing the existence of such service members in its ranks, it will also as a matter of law and logic be recognizing the existence of same-sex partners or same-sex spouses. But those folks are barred by the federal Defense of Marriage Act from receiving some of the benefits that opposite-sex partners or opposite-sex spouses would receive from the military.

The certification process is almost guaranteed to become explosive because there will have to be some way to deal with this — which impinges directly on DOMA, as the military is not under state jurisdiction but federal. However, the judicial process is nibbling around the edges of this law as well (Federal Same-Sex Marriage Ban Unconstitutional, Judge Rules, via Cohen)

Declaring that no “fairly conceivable set of facts” could justify its discriminatory provisions, a noted federal judge in Massachusetts Thursday ruled unconstitutional Section 3 of the Defense of Marriage Act, the Clinton-era federal statute which defined marriage to include “only a legal union between one man and one woman as husband and wife.”

At stake for thousands of state-level married same-sex couples — in addition to the partners of gay military personnel — are rights to federal retirement and death benefits such as the Widower’s Insurance Benefit or the Lump Sum Death Benefit or even favorable IRS status.

No wonder the hate groups are going into a frenzy (just check out JMG’s DADT posts for today and yesterday… quite a lineup)

Finally, the DADT repeal does not include an nondiscrimination policy: there’s work that needs to be done on that… which brings us back to ENDA. What happened to it? Geidner posted several days ago about ENDA’s Absence.

The bill had a hearing in the House Education and Labor Committee, with supportive testimony from the Obama administration. Then, Chairman George Miller (D-Calif.) slated ENDA for a mark-up in the House Education and Labor Committee in November 2009.

But Miller canceled the mark-up and that was, more or less, the last that was heard of the bill, which would prohibit employment discrimination on the basis of sexual orientation and gender identity for most employers with 15 or more employees.

[…]

[Pelosi spokesman] Hammill went down the list of Democratic complaints about Republican intransigence in the Senate, concluding, ”They extend the time that every piece of legislation takes to pass. And, they’re not interested in equality.”

What troubles me the most is the note of anti-trans evident in the “concerns” raised by various lawmakers. I want to see an inclusive ENDA passed, not a watered down one that we’ll have to chase after for years to complete. In any case, it’s not clear when ENDA will be picked up again — I can’t see Republicans in either House or Senate doing so any time soon.

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