Excerpt from the "Gays in the Military" report

Below is an excerpt from the "Current Situation" section of this week's CQ Researcher report on "Gays in the Military" by Peter Katel, September 18, 2009

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Current Situation

Advocates of allowing gays to serve in the military may agree on the ultimate goal — but not on how to reach it. President Obama, for instance, wants Congress to repeal the 1993 law banning homosexuality in the armed forces. Congress passed the law, so Congress must undo it, he reasons.

But gay-ban opponents at the University of California's Palm Center say the congressional route is a dead end, at least for now.

“We don't think there is any chance of getting legislation through Congress any time soon,” says Aaron Belkin, the center's director. “The issue in Congress is completely stalled.”

Instead, he and five colleagues argued in a paper last May, the president should use authority granted him by the so-called “stop loss” law to halt sexuality-based discharges of military personnel. As the Palm Center team analyzes the law and related statutes, the president is authorized to prevent discharges during periods of national emergency if it is found that keeping personnel from leaving is essential to national security. [Footnote 59] The liberal Center for American Progress advocates the same strategy.

Such a move, Belkin says, would show opponents that allowing gays and lesbians to remain in the ranks does no harm. With that result established, he says, “Politically and operationally, it would be extremely difficult to get this toothpaste back in the tube.”

Remaking military policy by executive fiat would eventually make congressional action easier, not harder, he argues, although repealing the law would be necessary eventually. “It doesn't take any political capital to sign an order because the issue is polling at 75 percent in favor,” he says, citing recent surveys. [Footnote 60]

Ban supporter Donnelly at the Center on Military Readiness says bypassing the political process would be “outrageous,” and an admission of desperation. “I don't think the president is politically unwise enough to do something like that.”

The Palm Center also sees the proposed move as a way of short-circuiting Pentagon opposition, she notes. Indeed, a follow-up paper by the center said: “The legislative process would open a can of worms by allowing military leaders to testify at hearings and forge alliances with opponents on the Hill. A swift executive order would eliminate opportunities for them to resist.”[Footnote 61]

The Washington-based Servicemembers Legal Defense Network, however, views congressional action as the only practical approach — and one with excellent prospects. “We're looking at the next 12 months for repeal,” says Kevin Nix, the network's communications director. That time frame would put the matter before the Democratic-controlled 111th Congress, which runs through 2010.

Congressional-strategy advocates say hearings expected later this year will create new legislative momentum by providing a national forum for evidence of the practical and moral benefits of opening the armed forces to gays.

By early September, however, no dates had been set for the hearings. On the House side, an aide to Armed Services Committee Chairman Ike Skelton, D-Mo., said the panel is unlikely to take up the issue until a new under secretary for personnel and readiness has been allowed to settle into the position. The Senate Armed Services Committee hasn't set a date either. Chairman Carl Levin, D-Mich., has said he would hold a hearing in the fall.

“We firmly believe that repeal can get done in this Congress,” Nix says.

Footnotes
[59] Aaron Belkin, et al., “How to End ‘Don't Ask, Don't Tell’: A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment,” Palm Center, May, 2009, www.palmcenter.org/files/active/0/Executive-Order-on-Gay-Troops-final.pdf. For background on stop-loss, see Pamela M. Prah, “Draft Debates,” CQ Researcher, Aug. 19, 2005, pp. 661–684. Lawrence J. Korb, et al., “Ending ‘Don't Ask, Don't Tell’: Practical Steps to Repeal the Ban on Openly Gay Men and Women in the U.S. Military,” Center for American Progress, June 2009, .

[60] Morales, op. cit.

[61] Aaron Belkin, “Self-Inflicted Wound: How and Why Gays Give the White House a Free Pass on ‘Don't Ask, Don't Tell,’” Palm Center, July 27, 2009.
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