View From Washington

The president of the United States now appears to be on the wrong side of a trend among his fellow constitutional law scholars when it comes to discrimination against lesbian, gay, bisexual, and transgender people.

Those who are tasked with following and interpreting the intent and meaning of this country's Constitution are now resoundingly ruling that the government has no reasonable rationale for discriminating against LGBT Americans in situations ranging from marriage to military service.

As The New York Times wrote Friday morning after federal district court judge Virginia A. Phillips ruled the "don't ask, don't tell" policy unconstitutional:

"The decision is among a number of recent rulings that suggest a growing judicial skepticism about measures that discriminate against homosexuals, including rulings against California's ban on same-sex marriage and a Massachusetts decision striking down a federal law forbidding the federal government to recognize same-sex marriage."

News of the decision came late Thursday after Politico dropped a bombshell in its Morning Defense section earlier that day regarding the plausibility that the Senate will act on the Defense authorization bill that houses DADT repeal:

"WILL THEY OR WON'T THEY? -- The chances that the Senate will take up the National Defense Authorization Act before the next recess are declining by the minute; 'contingency planning' is now the operative phrase. Defense industry and lobbying sources are scrambling to prepare for any number of possible courses of action that are dependent on congressional leadership, and, to some extent, election poll results."

The piece also included a renewed threat from a spokeswoman for Sen. John McCain that "the senator has not backed away from his objection to bringing the defense authorization bill to the floor."

None of that sounded particularly promising, especially after Senate majority leader Harry Reid's spokesman seemed slightly less bullish about the bill's chances for a vote when asked about the matter this week.

"It's on the list of things we would like to do in the next few weeks," Jim Manley told The Advocate.

By contrast, last month Manley said it would be "among the first things we do when we get back."

Sure, one could argue it's splitting hairs, but read in context, there's good reason for repeal advocates to be alarmed. If the bill is not voted on between next Monday when Congress returns from recess and October 8 (a period that may actually only yield about two voting weeks in the Senate), it may still have a chance of passage during the lame-duck session after the midterms, but that chance will be greatly diminished. Quite honestly, political observers of the Hill vary wildly in their prognostications, from "zero" chance to "50-50," each of which strikes me as too low and too high, respectively. But if nothing else, it's fair to say the odds aren't particularly good.

So what exactly stands in the way of this bill making it to the floor? Some combination of timing, strategy, and sheer lack of guts.

Timing: Most Hill insiders believe Carl Levin, chairman of the Senate Armed Services Committee, will need about five to seven legislative days to debate and pass the defense authorization bill to which repeal is attached -- that could eat up a big chunk of the very narrow window left before the midterms.

Strategy: It appears that Democrats have their eye on pushing one major debate about tax cuts for small businesses and households earning less than $250,000 annually in order to score political points before the November election. They're desperately trying to save their majorities in both chambers after nearly every pundit around has not only put the House in play but also thinks Republicans have an outside chance of retaking the Senate.

Guts: While 234 House members approved the bill and there's only evidence of a couple of them being targeted for that vote, Sen. Harry Reid seems to be getting cold feet. The only explanation is that he's locked in a dead heat with Tea Party candidate Sharron Angle and Reid himself was the object of one negative DADT ad paid for by the Family Research Council.

Could one ad from a fringe conservative group like FRC send Reid running scared? Hard to know, but a Friday Roll Call article noted that the short, monthlong work period might still be too long for the likes of Democrats:

"Senate Democratic aides acknowledged Friday that talk of cutting the planned four-week work period short is growing, and senior House aides said they don't see any reason to keep members in town if the Senate cannot get much accomplished beyond a small-business bill and a continuing resolution keeping the government operating past the Oct. 1 start of the new fiscal year."

Notably, not a single mention of the defense authorization bill in that article.

At Thursday's press briefing (which was prior to the ruling), White House press secretary Robert Gibbs appeared flummoxed by the notion that a Senate vote on the legislation was in jeopardy and told The Advocate that passage of the bill was "tremendously important" to President Barack Obama.

Here's the exchange:

The Advocate: Robert, there's a lot of reports that the Senate might forgo a floor vote on the defense authorization bill before the midterms. Where does funding the troops in Afghanistan and Iraq stand on the president's list of priorities heading into the midterms?
Gibbs: I can check with Legislative Affairs on the notion that there's not going to be a vote on the defense authorization. I don't know the answer to that. Obviously funding our troops is tremendously important to this President.

So you wouldn't -- the White House wouldn't prefer to see a debate on taxes versus a debate on funding the troops heading into the midterms?
Again, I don't -- I should check on the original premise of your question. I haven't heard that. Obviously -- I think I answered that second part of the question.

So if they could do one or the other, have a tax debate or a funding debate?
Well, I don't -- look, Congress is going to be here longer than 15 minutes. I think there's a lot -- judges, appointments, small business bill -- there's a lot that can get done over the couple of weeks --

Do you really think the Senate is going to get all that done in a month?
I am, by nature, a tremendously optimistic and hopeful person."

President Obama's most passionate moment at Friday's press conference with reporters came at the very end when he was asked about "the wisdom of building a mosque a couple of blocks from ground zero."

"We've got millions of Muslim Americans, our fellow citizens, in this country," Obama said, "they're going to school with our kids. They're our neighbors. They're our friends. They're our coworkers. And when we start acting as if their religion is somehow offensive, what are we saying to them?

"I've got Muslims who are fighting in Afghanistan in the uniform of the United States armed services. They're out there putting their lives on the line for us. And we've got to make sure that we are crystal clear for our sakes and their sakes they are Americans and we honor their service. And part of honoring their service is making sure that they understand that we don't differentiate between them and us. It's just us."

Certainly, lesbian, gay, bisexual, and transgender Americans are equally as hungry to hear the president show the same sense of urgency about advocating for their rights as equal citizens -- especially those risking their lives for our country.