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Why Don't Ask Don't Tell Repeal is Not the Brown v. Board of Ed. for Gay Rights

A bill to let gays serve openly in the military has passed Congress. It is a huge win for gay rights, but not a comprehensive one.

Democratic Senator Kirsten Gillibrand (C) of New York delivers remarks during a press conference after the Senate passed a bill to repeal the Don't Ask Don't Tell (DADT) policy

Democratic Senator Kirsten Gillibrand (C) of New York delivers remarks during a press conference after the Senate passed a bill to repeal the Don't Ask Don't Tell (DADT) policy (Michael Reynolds / EPA-Landov)

With the timely reversal of a handful of Senate Republicans, a bill to repeal the ban on gays and lesbians serving openly in the armed forces passed the super-majority threshold to defeat a filibuster. The measure then passed the Senate by a 65-31 vote. Having already passed the House of Representatives by a 250-175, and President Obama is certain to sign it.

Gay-rights supporters are, naturally, elated. The National Gay and Lesbian Taskforce issued a statement saying, "We celebrate this important victory and thank all the senators who supported fairness today. We are on the brink of making history."

photos: Gay Rights Around the World

It will indeed be historic when Obama signs the bill. But it probably won't be a watershed moment for gay rights like the Civil Rights Act or the Americans with Disabilities Act. New York Times columnist Nicholas Kristof tweeted, "Repeal of 'Don't Ask, Don't Tell' will be a civil rights milestone. This may be the Brown v. Board of gay rights." In Brown, in 1954, the Supreme Court ruled racial segregation in schools to be unconstitutional.

Unfortunately for gay-rights activists, this development is no equivalent of that. Brown was a unanimous decision that overturned the infamous Plessy v. Ferguson precedent, which had found "separate but equal" facilities to be constitutionally permmissable. Thus, the high court imposed integration in the most sensitive sphere in the public realm—elementary schools—and offered no dissenting opinion to justify opposition. By contrast, this bill passed with significant opposition from Republicans. (Democratic Sen. Joe Manchin of West Virginia who had said he opposes letting gays serve openly skipped the vote, but all other Democrats voted for it). It does not establish a constitutional or legal principle that all discrimination on the basis of sexual orientation is unacceptable that can be applied in court rulings to other venues. And it does not allow transgendered individuals to serve.

None of that should diminish the drama or importance of Saturday's vote: had Democrats failed to pass this measure before the end of the session it would have been doomed by the ascension of Republicans to the majority in the House and a larger caucus in the Senate in the next Congress. Many observers, present company included, had not expected Don't Ask Don't Tell repeal to happen in this Congress. And the perennially dissatisfied liberals who fretted that Obama's refusal to integrate gays and lesbians into the military through an executive order or a choice not to appeal a recent federal court decision that Don't Ask Don't Tell is unconstitutional should recognize that Obama has been vindicated. The policy change he promised is coming, and it is coming through the democratic process, so Republicans cannot carp about "activist judges making law."

And that distinction—judicial versus legislative action—is the reason that today is simultaneously a bigger and smaller victory for civil rights than the day Brown was decided. Bigger in that it shows social progress can be made by the people's elected representatives, and smaller in that such progress is necessarily more incremental.

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