Over the last few months, several of the most active participants in the dialogue over gays in the military have had a polite disagreement over the most effective way to lift the ban on openly gay service. But that dialogue has sometimes prompted confusion and misinformation. As two of the six co-authors of the Palm Center study that began the debate over executive action toward ending gay discharges, we appreciate the opportunity to comment on Duncan Osborne’s story, “Views Split on Don’t Ask” (Jul. 9-22), on the matter.
Every day, on average, one or two service members are kicked out for being gay, and the remaining estimated 65,000 gay troops are forced to serve under unique burdens, often in hostile terrain, isolated and hamstrung by this policy. The executive action outlined by the Palm Center is the only way to promptly stop investigations and discharges of gay troops and thus the only way to address the immediate needs of both our gay service members and our national security.
But executive action is only the first step. According to Osborne, many gay advocates believe that “Obama can end the military’s Don’t Ask, Don’t Tell policy simply by issuing an executive order.” Yet, he writes, “it is not clear that the president has the legal authority to do that, and it may be that such a move would have political blowback which could cripple the effort to repeal that policy.”
The Palm Center — and other groups that have joined us in calling for executive action, including Servicemembers Legal Defense Network (SLDN), Human Rights Campaign, Center for American Progress, and dozens of lawmakers — do not argue the executive order would “end” the policy; instead, it would be the first of a two-step process that would halt discharges and help pave the way for legislative repeal, in part by providing stark evidence to Congress that openly gay service works. In so far declining this option, the White House has never argued this is not legal, only that it prefers Congress to act first. Yet, partly as a result of pressure created by the executive option, we are now seeing greater action by the president and secretary of Defense toward halting the discharges.
In Osborne’s article, Dixon Osburn, former director of SLDN, compares executive action by President Obama to the deeply unpopular “unilateral executive” action of President Bush. This comparison is uninformed, at best: The president’s stop-loss authority is granted to him by Congress, and can hardly be called “unilateral executive” action; President Obama would merely be executing the law.
As for political blowback, Dixon Osburn warns that the Palm Center is “asking Obama to do what Clinton was asked to do,” which is take action without support from the military or Congress. This is, in fact, what President Truman did successfully in desegregating the military, and what Clinton failed to do. If Clinton had issued an executive order from day one, we arguably wouldn’t be in this mess. And today, there is far more support from both the Pentagon and Congress, as well as service members and the general public, for lifting the ban than in Clinton’s day. What’s needed is leadership. There will be political costs to lifting the ban, but there is no evidence that executive action will cost more than Congressional action. It is disappointing to hear allies using the same political scare tactics as our opponents.
Finally, precisely because executive action will not end the gay ban, but only begin to end it, Congress will not get a pass on taking action. While Duncan Osborne reports as fact that “Democrats do not have the votes to repeal Don’t Ask, Don’t Tell,” no one knows if that’s true until it comes to a vote. In any event, since the grounds for stop-loss will not last forever, there will be continued pressure on Congress to fully scrap the ban. Once gays are serving openly, it will be operationally impossible to put the toothpaste back in the tube — what would we do, command all troops to forget that they now know who’s gay? Of course, it’s up to all of us to keep that pressure on Washington. This begins with reporting fairly and discussing honestly what the options for action really are.
Senior Research Fellow
Diane H. Mazur, Professor of Law
University of Florida and Affiliated Scholar