Stop-Loss: The Solution to Obama’s DADT Conundrum
In asking the court not to take the case, the White House put itself into a tricky position. The administration found itself arguing that the lower court had ruled correctly in finding that the policy furthers a "legitimate interest in military discipline and cohesion." Yet if the President believes that, why has he promised to get rid of the policy? Indeed, Obama has stated clearly that he believes the opposite to be true, saying the policy is a "counterproductive strategy" that "doesn't make us more safe." His press secretary, thrown on the defensive recently by mounting pressure to lift the ban, has repeatedly said that the policy "isn't working for our national interests."
Of course, discouraging the Supreme Court from hearing a challenge to a government policy does not necessarily mean you believe that policy is a good one. And it is unfortunately the case in politics that, sometimes, telling the truth is not the best way to get where you want to go. If President Obama had not defended the lower court's ruling, he would have faced defending the policy in the far more visible setting of the highest court in the land. He also would have risked winning: if the Supreme Court were to uphold the constitutionality of "don't ask, don't tell," that decision could make it harder to end the ban in the court of public opinion.
No doubt, the court ought to invalidate the policy. Despite protestations from conservatives who've convinced themselves that interpretations of law don't change, laws are written precisely to allow for interpretations that evolve with changing times. Look at the language of some of our most important legal concepts: one legal standard for determining when a constitutional right has been violated is whether the law in question bears a "rational relationship" to a "compelling governmental interest." Obviously, what "compels" one person, group, or generation will not be the same as what compels another. Preventing marital strife by denying women the vote was considered "rational" and "compelling" to generations of Americans. No more.
Look also at the language of the "don't ask, don't tell" statute. The physical affection that is barred by same-sex members of the military is defined based on what a "reasonable person" would understand to demonstrate a potential for homosexual conduct. Clearly, there is not just one ideal type of a "reasonable person" whose assumptions about sexuality remain clear and unbending at all times and in all places. Even the very rationale of "don't ask, don't tell"-that straight soldiers would be so put out by knowing about gays in their midst that their morale and cohesion would suffer-relies on a moving target: attitudes about sexuality simply don't remain constant over time, and polls and daily life have shown decisively over the last several decades that acceptance of homosexuality has grown. As a result, the rationale for the gay ban has been significantly eroded, a fact that ought properly to figure not just in political, but in legal, assessments of the legitimacy of ongoing discrimination in the military.
For these reasons, Obama's legal argument to that court that the current policy is "rationally related to the government's legitimate interest in military discipline and cohesion" is shameful. No research has ever tied sexual orientation to the unit cohesion of military members, including research conducted by the military itself-and Obama knows this. In conducting research for my book on gays in the military, I spoke to several retired senior officers who were responsible for formulating "don't ask, don't tell," and was told that the "unit cohesion" rationale was never based on any research or empirical data but on "fear" and "prejudice." For the first African-American president to argue, even in passing, that discrimination is legitimate is an embarrassment.
Yes, the president will get some sympathy from those of us who understand his legal tack as a mechanism for buying time until he ends the ban through political avenues instead. But Obama could already have done this by executive order, obviating the need to put himself in a position of writing a dishonest defense of the ban. The Palm Center released a study this spring showing that the president has the power of "stop-loss" which he could use to halt all discharges under "don't ask, don't tell." While some worry this would be a temporary solution, it would actually be the wisest way to lift the ban permanently, as part of a one-two punch: Obama could suspend discharges using stop-loss and then, six months down the line, point to the success of openly gay service and ask Congress to repeal the policy once and for all.
No, the Supreme Court's decision was not surprising. But Obama's delay is increasingly untenable. Let's close the book on discrimination before its champions have time to rebuild and lock it into place for another generation.