By Tommy De Seno

Barack Obama vs Gays.

His administration won the case of Pietrangelo v. Gates, a challenge to "Don't Ask Don't Tell." The Supreme Court has decided not to hear it. Don't Ask Don't Ask.

The Obama Administration took the position that keeping gays out of the military is "rationally related to the government's legitimate interest in military discipline and cohesion."

The knee-jerk reaction is to get caught up in the "discipline and cohesion" argument. Forget it. The more important words are the legalese "rationally related to the government's legitimate interest."It's a phrase of important legal meaning.

Under constitutional law, government can only outlaw a "fundamental right" if there is a "compelling state interest" to do so. For instance, I have the fundamental right to travel, but a compelling interest in stopping me from traveling with anthrax in my pocket exists. Stopping me from traveling with a blue shirt on isn't compelling, so such a law would fail.

However, if the right involved is lesser, or not a "fundamental" right, then the government does not need a "compelling state interest" to curtail it. The curtailment of the right need only be "rationally related to a legitimate state interest." That's an easier burden to meet.

In short, the Obama administration took the position that equality for gays is less than "fundamental." Therefore, they don't need a compelling interest to curtail the rights of gays, only an interest related to their goal of doing so.

The gay and lesbian community did not see this train coming at them, just like they didn't see it coming with Bill Clinton. In fact, gays refused to see how Bill Clinton opposed them even when he did.

Early in his presidency, Clinton ditched his campaign promise to integrate the military and instead implemented "Don't Ask Don't Tell." There was an incident at the White House while receiving some gay and lesbian leaders when Clinton's staff wore rubber gloves. Before leaving office, Clinton signed the Defense of Marriage Act, which holds one state does not have to recognize a gay marriage from another state, the Full Faith and Credit Clause of the U.S. Constitution be damned.

I'm always astonished when gays and lesbians look at Clinton's presidency favorably.

I suspect that unless there is a change in gay and lesbian political rhetoric, they will pretend Obama isn't hurting them either. Gays and lesbians seem to be in an abusive relationship with Democrats. No matter how many times the Democrats hurt them, gays just keep coming back.

A rallying cry for gays has been to oppose a measure often cited by Republicans - to amend the U.S. Constitution to define marriage as between a man and a woman.

I can understand their opposition. As a conservative, I'm hesitant to tinker with the Constitution, in particular to take a document originally written as a shield to protect people from government and turn it into a sword of the government against people. That's a very anti-conservative idea.

What I've never understood is why gays and lesbians are not as equally vociferous in their opposition to Democratic plans to let state voting decide. Most studies put gays at less than 5 percent of the population. Which Democrat thought it to be a good idea to put the rights of gays to a popular vote when they are outnumbered 95 to 5?

Also, would the Democrats support putting the' civil rights of blacks up to a popular vote or a vote in a state legislature? How about Latino civil rights or Asian civil rights? Isn't the whole idea of the Constitution that we don't allow such votes, and rather than having "gay rights" or "black rights" or "white rights" or "Latino rights" or "Asian rights," aren't we all supposed to have the same civil rights?

The Democratic idea for dealing with gay and lesbian civil rights is far worse than the Republican idea. The Democratic idea of putting rights to a popular vote puts our entire constitutional republic in jeopardy.

The various and sundry organizations that claim to represent gays and lesbians could not have overstated more the case for Barack Obama when he was elected as to what his election would mean for causes they care about.

Take a look at this articlefrom the Windy City Times in Chicago, appearing the day after the election last November. The point of it was that Obama mentioned gays in his speeches. Indeed he did, and according to the article, that gave gays some Barackian hope for some Obamian change.

Think about that -- the mere mention of them by Obama gave gays hope, not even the mention of a policy about them. The level of investment by gays in Obama was extreme. Check out some of these lines from the article:

"...U.S. Sen. Barack Obama won the White House Nov. 4. The triumph not only marked an historic moment in American history--with his election as the first African American as president--but a dramatic improvement in the political climate in Washington, D.C., for LGBT people."

"Human Rights Campaign President Joe Solmonese characterized Obama's win as a 'paradigm shift' for LGBT people. 'The pendulum has swung away from the anti-gay forces that dominated the political landscape for too long and toward new leadership that acknowledges our equality.'"

Rea Carey, executive director of the National Gay and Lesbian Task Force, called Obama's election 'the dawn of a new political era of hope' that 'brings a promise for a sea change in the tenor of the national dialogue on lesbian, gay, bisexual and transgender issues.'

The article then goes on to give statistics from exit polling in districts with large gay and lesbian populations showing the strong voter support given by gays to Obama. Noting that gays and lesbians traditionally vote Democratic 70 to 75 percent, exit polling found the following support for Obama in districts heavily populated by gays:

- Provincetown, Mass., 87 percent of voters supported Obama;

- San Francisco, 85 percent;

- Philadelphia's 2nd and 5th wards, 83 percent;

- Dupont Circle ( Precinct 15 ) in Washington, 89 percent;

- Precinct 1233 in Dallas, 63 percent;

- Chicago's 44th Ward, 86 percent.

Has the gay and lesbian investment in Obama paid off? Of course not. As usual, the Democrats took the gay and lesbian votes and ran.

On the issue of integrating the military and repealing "Don't Ask Don't Tell," the Obama administration has thus far told gays that the president has no time for them, that he is too busyto deal with it now. He has relegated them to the unimportant status of the proverbial back burner.

That he will deal with it at all is belied by Obama's position in the Pietrangelocase.

Surrounding the Carrie Prejean Miss USA controversy, it really came to light that Obama, like Prejean and George W. Bush, believes marriage is between a man and a woman. If Obama believes as Bush, gay and lesbian hope for change was certainly misplaced.

Obama has done great damage to gay rights by taking a position that their civil rights are less than fundamental. Several courts have already said so regarding marriage, and if the Supreme Court ever hears such a case, Obama has established another precedent against gays with the Pietrangelo case.

Five percent in any election is important. The smart political play for gays would be to declare themselves officially unaffiliated with both parties, and declare the first party to actually take up their cause will get their votes.

Read more Tommy De Senoat www.JustifiedRight.com.

Tommy De Seno contributes to ricochet.com and is the editor of www.JustifiedRight.com. An attorney and proud Catholic, he hails from Asbury Park, N.J.