The administration now finds itself hurtling toward an irreconcilable moral conflict. If its repeal effort fails and another court upholds DADT, those openly gay and lesbian recruits will be in danger of discharge. But just as the images of happy, newly married same-sex couples put the lie to the apocalyptic predictions of societal breakdown made by marriage equality opponents, the admission of openly gay and lesbian service members will further erode the already feeble basis for keeping DADT. The skies will not crack open, thunder will not roll, al-Qaeda will not suddenly establish a Western caliphate with Washington as its capitol. Life will go on largely as it has before.
But if the administration successfully appeals Judge Phillips's decision, it will find itself obligated to enforce a policy the president himself says he opposes and that he says undermines national security, a policy with no empirical, legal, or moral basis. The administration will have effectively instituted its own Proposition 8, retroactively denying rights to individuals who already have them. That will be significantly harder to explain or justify than simply maintaining the status quo. After having promised to repeal DADT, Obama would be responsible for its ongoing survival.
Chris Geidner reports on the DOJ appealing the DADT stay request to the Ninth Circuit. Wonk Room reads the DOJ's stay request and realizes that it "doesn’t note a single specific instance in which the Pentagon has received a complaint about mass resignations or disruption in the time since it has complied with Philips’ order and stopped implementing the policy."