When Barack Obama sought the presidency, he pledged to reverse the "Don't ask, don't tell" policy preventing gays and lesbians from serving openly in the U.S. military. Yet on Monday, the Supreme Court rejected a gay Ohio soldier's challenge to the law with the legal backing of none other than the Obama Administration.
James Pietrangelo II, the former Army infantryman and lawyer whose case the high court declined to review, reserved most of his ire for President Obama instead of the court. "He's a coward, a bigot and a pathological liar," Pietrangelo said in an interview with TIME shortly after the high court declined to hear his appeal. "This is a guy who spent more time picking out his dog, Bo, and playing with him on the White House lawn than he has working for equality for gay people," he added. "If there were millions of black people as second-class citizens, or millions of Jews or Irish, he would have acted immediately" upon taking office to begin working to lift "Don't ask, don't tell." Pietrangelo fought in Iraq in 1991 as an infantryman, and returned as a JAG officer for the second Iraq War, before being booted out in 2004 for declaring he was gay as he was readying for a third combat tour. He was representing himself before the high court. (See pictures of the gay rights movement.)
The Obama Administration, in its brief in the case last month, said a lower court acted properly in upholding the gay ban. "Applying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals properly upheld the statute," argued Elena Kagan, who as Solicitor General represents the Administration before the Supreme Court. The bar on gays serving openly is "rationally related to the government's legitimate interest in military discipline and cohesion," her 12-page filing added.
The endorsement of "Don't ask, don't tell" by the Administration marks the latest rightward tack by Obama. The President denounced many of George W. Bush's national-security policies during the campaign, but in office has adopted more conservative positions, including endorsing military commissions to try purported terrorists, and declining to release a second batch of photographs depicting alleged U.S. maltreatment of Iraqi detainees. His stance on "Don't ask, don't tell" may be more surprising, because Obama aides have made clear the President wants the ban lifted eventually. (Watch a gay marriage wedding video.)
Pietrangelo doesn't buy the line from Obama aides and the Pentagon that they're too busy grappling with a faltering economy and two wars to handle the gay ban right away. "It's a complete lie that he has too much stuff on his plate this is the guy who criticized Bush for not being able to multitask," Pietrangelo says. "We have an old saying in the military the maximum effective range of an excuse is zero meters."
Pietrangelo and others argue that Obama has leeway under the law that codified "Don't ask, don't tell" after the 1993 outcry when Bill Clinton tried to allow gays and lesbians to serve openly. The President, they say, could instruct the Secretary of Defense, who has the sole power to carry out the law, to make investigations a rarity, so that "Don't ask, don't tell" simply does not function. Indeed, Obama could tell the Pentagon that, as a general matter, it is not in the best interest of the armed forces to expel a service member solely for saying he or she is gay or bisexual. (Watch TIME's video "Gay Marriage in the Heartland.")
But the trouble is that the law was passed by Congress and, if Obama decided to go around the legislature, he would face political blowback. The current law allows gays to serve, so long as they keep their sexual orientation secret. The legislation means that a majority of the 535 members of Congress is going to have to vote to undo the ban and that will have its political fallout. Obama is plainly taking his cue from the 1993 fiasco, which hurt Clinton's relationship with conservative members of Congress, both Democratic and Republican, and with many in uniform.
But Obama also has some ammunition that Clinton never had: a new Gallup poll finds that most conservatives 58% now support openly gay people serving in uniform (nationally, 69% support the change; when Clinton assumed office, a Gallup poll found 53% of those polled opposed lifting the ban). Perhaps even more surprising, 58% of self-described Republicans, and 60% of weekly churchgoers, also support gay men and women serving openly in uniform. "While the Administration to date has not taken action on the issue," the polling firm reported last Friday, "the Gallup Poll data indicate that the public-opinion environment favors such a move."