Charles Dharapak/AP Photo
Defense Secretary Robert Gates, left, and Joint Chiefs Chairman Adm. Mike Mullen, speak to reporters on gays in the military, Tuesday, Nov. 30, 2010, at the Pentagon.
Now that the Pentagon has released its much-anticipated report which gives added weight to the calls of the Defense Department's civilian and uniform leaders for Congress to repeal the Don't Ask, Don't Tell ban against gays and lesbians openly serving in the U.S. military, the issue moves to Congress where its prospects are uncertain at best.
Both Sen. Harry Reid (D-NV), the Senate majority leader, and House Speaker Nancy Pelosi have said they intend to bring repeal legislation to a floor vote during the lame-duck session.
But congressional Republicans have argued that other issues take precedence, first and foremost, extending the Bush tax cuts.
Defense Secretary Robert Gates continued to give Democrats ammunition to move speedily. On Tuesday he warned, as he has before, that if Congress doesn't tend to a repeal, the federal courts would.
It's been his way of pushing the "activist judges" button, especially with congressional conservatives.
I believe this is a matter of some urgency because, as we have seen in the past year, the federal courts are increasingly becoming involved in this issue.
Just a few weeks ago, one lower court ruling forced the department into an abrupt series of changes that were no doubt confusing and distracting to men and women in the ranks.
It is only a matter of time before the federal courts are drawn once more into the fray, with the very real possibility that this change would be imposed immediately by judicial fiat — by far the most disruptive and damaging scenario I can imagine, and one of the most hazardous to military morale, readiness and battlefield performance.
Therefore, it is important that this change come via legislative means; that is, legislation informed by the review just completed.
The House's rules make it easier for lame-duck Democrats there to put a DADT repeal measure to a vote. But the Senate requires unanimous consent for legislation to proceed.
And it doesn't sound like that would be forthcoming, given the resistance from Sen. John McCain, among others. As one of the Senate's leaders on military matters, McCain's opposition could be influential.
What's understood is that if the legislation doesn't get to a vote in both chambers before members of Congress head out of town for the holidays, it's not likely to happen next year.
Repealing the 17-year old DADT wasn't on the House Republican agenda, the Pledge to America. Also, the social conservatism of many of the incoming members of the new Republican House majority would likely make a DADT repeal, at least by Congress, essentially dead for the foreseeable future.
That would leave the federal courts to continue attacking the law, exactly the outcome Gates said he'd like to avoid.