Nov. 8, 2010— -- Defense Secretary Robert Gates wants Congress to repeal the military's controversial "don't ask, don't tell" policy in the upcoming lame-duck session but questions whether lawmakers will act.
"I would like to see the repeal of 'don't ask, don't tell,' but I'm not sure what the prospects for that are," Gates told reporters this weekend while traveling to Australia.
Lawmakers will return to Capitol Hill next Monday for a lame-duck session that is set to focus on taxes and spending. It appears unlikely that they will tackle "don't ask, don't tell."
Making matters worse for Gates and others who want a repeal of the 17-year-old ban on gays serving openly in the military is that the repeal will face even more of an uphill legislative battle come January.
That is when Republicans, most of whom oppose the repeal, will gain control of the House of Representatives and gain seats in the Senate.
The annual defense authorization bill, which included a repeal of the policy, was defeated in the Senate in September, falling four votes needed of the 60 to proceed to debate on the measure. The vote was 56-43, with three Democrats -- Sens. Harry Reid of Nevada, Blanche Lincoln of Arkansas and Mark Pryor of Arkansas -- voting against the bill, although Reid's vote was a procedural move to allow him to bring up the measure again at a later date.
The Democratic majority will shrink by six seats when the new Congress convenes in January.
Meanwhile, the top lawmakers on the Senate Armed Services Committee -- chairman Carl Levin of Michigan and the top Republican, John McCain of Arizona --– are in talks about stripping the repeal from the defense bill.
"Sen. McCain continues to have discussions with Sen. Levin regarding the National Defense Authorization Bill," said Brooke Buchanan, a McCain representative. "Among other concerns, the senator remains opposed to the inclusion of the provision repealing the 'don't ask, don't tell' law."
'Don't Ask, Don't Tell' in Legal Limbo
If the repeal is stripped from the defense bill, it would have no legislative vehicle to carry it to passage.
McCain has objected to Congress' acting before the Pentagon completes a review of military personnel due Dec 1. Navy Adm. Mike Mullen, the chairman of the joint chiefs of staff, said Monday the report on the policy is on track to be delivered on that date.
Meanwhile, the Log Cabin Republicans earlier this month asked the Supreme Court to overrule a decision by the Ninth Circuit Court of Appeals that resurrected the policy.
Supreme Court Justice Anthony Kennedy, who received the group's filing, has asked the Department of Justice for its response. Kennedy can either rule on the case or refer it on to the full court.
"Log Cabin Republicans is disappointed that 'don't ask, don't tell' will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform," R. Clarke Cooper, the group's executive director, said in a statement Nov. 1.
"Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of service members' constitutional rights."
"In the meantime," Cooper said, "we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see 'don't ask, don't tell' ended.
"It is time that he stop talking and start working to make a real difference for gay and lesbian Americans pushing for repeal when Congress returns."
But not only is such a move by Obama unlikely, so too is any action by Congress during the lame-duck session.