Repealing 'Don't Ask, Don't Tell' With the Presidential Pen

      John F. Kennedy promised during his 1960 presidential campaign to end racial discrimination in federally assisted housing “with the stroke of a pen,” but the author of Profiles in Courage waited almost two years to issue the promised executive order.
      Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
      Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
      As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
      With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
      In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
      Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
      Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
      One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
      Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
      The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
      Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
      Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.