Ben Adler undermines Obama's claim that only Congress can allow gays to serve openly:

At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them.

“Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.

Ted Olson - former solicitor general, whose role is to determine the legal position of the US government before the Court - calls out Obama along those same lines.

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