08/21/2013 12:21 pm ET Updated Feb 02, 2016

Achieving Military Equality

If you want to win a policy debate, nothing is better than having the military on your side. If you have the military's endorsement, or if you can sell your idea as being in the military's best interest, people are much less likely to object. Who's going to argue we shouldn't support people in uniform?

Freeloading on the military's popularity may be foolproof, but it is also foolish. It may work, but it doesn't make it smart. Every time we turn decisions over to the military and hope it does the right thing, we waste some of the critical capital of civilian control. Every time civilians agree it is not their place to decide issues that affect the military, we make the military more resentful of civilian oversight in the future.

This is especially true with issues of military equality. Rather than asking what would be the right thing to do, or the constitutional thing to do, we step back and wait for the military to decide. Our great national reluctance to second-guess the military has become a tool for slow-walking the path to equality.

This dynamic was in play as Congress debated whether to repeal "Don't Ask, Don't Tell" (DADT) and President Obama considered whether he should use his "stop-loss" authority to suspend discharges in the meantime. Either one could have ended the discharges but neither one wanted to go first, not until the military signaled what it was willing to endorse. In what may have been the oddest repeal bill ever passed, Congress decided that DADT would end only if and when the Secretary of Defense, the Chairman of the Joint Chiefs, and the Commander-in-Chief all certified they thought repeal was a good idea. Essentially, Congress voted to let the military decide whether to repeal the law, a strange choice in a system supposedly based on civilian control.

Civilian officials didn't have the courage to push back firmly against a military opinion, even when the military's own research showed it didn't need to discriminate. A recent Pew Research survey found that 78% of Americans thought members of the military contributed "a lot" to society's well being, an approval rating higher than teachers, doctors, scientists, or engineers. Given those numbers, it's not surprising that policymakers and advocates like to line up behind a military endorsement. Riding the train of military popularity is easier than real civilian control.

The Supreme Court looks at the military much the same way. In the book A More Perfect Military: How the Constitution Can Make Our Military Stronger, I explained how the Court made a hard turn toward military deference after the end of the Vietnam War. If Congress or the military said they were acting for military reasons, the Court would step aside. No further explanation was required.

The repeal of DADT was a long-delayed victory for both American values and military values. It also set the stage for the recent Supreme Court decision striking down the heart of the Defense of Marriage Act. With DADT still on the books, the Court's opinion might have been hedged with exceptions to protect military interests. With repeal, however, it became far easier to see DOMA as a plain attempt to make some people unequal to others.

Waiting patiently for the military's endorsement turned out well in the end. But we ought to be a lot more concerned about automatic deference to the military. Every time we look for a military endorsement as the easy way out of a real debate, we make it more difficult to do the right thing when the military is not willing to go along.

There is more work to be done on military equality. Later this month, the LGBT Bar Association's Military Working Group will meet to discuss military policies on transgender service, and the Palm Center (an important source of information on DADT) has already announced plans for research on the same issue.

Military medical regulations presume, without explanation, that transgender applicants are medically unfit for duty. These medical policies are decades out of date and no longer follow medical practice in the civilian world, including the VA health care system. These rules exist not because the military has carefully considered the need to exclude people, but simply because it can exclude and not be called to answer. It is time for them to end.

It would be a mistake to defer once again to military preference and hope it does the right thing, especially when the military has no special expertise on the subject. We do the military no favors when we expect less of it than we do of other professions. If we admire the military as much as we say we do, then there is no need to protect it from having to explain and justify its choices.