But enough about them. The Pentagon has no one else to blame but itself for the lawsuit. Secretary Leon Panetta, the named defendant, will now have to answer their claims. Defendants have a tendency to miss the big picture while under legal assault; he might opt to fight this on procedural and constitutional grounds. But there is only one way for the Pentagon to actually win this war, a war of their own making against the women who constitute 14 percent of the 1.4 million active military personnel, including 280,000 women who have served in Iraq and Afghanistan. The Defense Department can finally end the exclusion rules and make the case moot.
In 1994, the Pentagon adopted the rules that exist today. This means women are barred from the infantry, armored divisions, and special operations. Because of women’s roles in the post-9/11 wars, the Pentagon budged a little earlier this year when it opened a handful of new positions to women. In doing so, it actually ignored recommendations by an external review committee to drop the ban altogether.
The combat exclusion rules are an operational disaster. Because of the ban, women are “attached” to combat units, but not “assigned” to them; that distinction is lost in the fog of warfare, as the injuries sustained by the plaintiffs show. To satisfy the exclusion rules, commanders often go through ridiculous gyrations: They “reset” the women soldiers by temporarily bringing them back from their missions to make it look like they are in supporting roles. The rules are antiquated, condescending, and unworthy of this administration.
Right now, meetings are being arranged by government lawyers in the Pentagon, the White House, and the Justice Department to discuss how to deal with the case. There is a battle within the government about the gender exclusion; the forces of caution have won to date. If they advance, the Pentagon will probably fall back on two arguments. First, it will go after the plaintiffs’ claims that they’ve suffered real harms to their careers. The argument’s a loser. The plaintiffs are all-American gun-toting ladies who have committed themselves to a lifestyle most of us can’t imagine – except that the Pentagon won’t acknowledge it.
Second, the defense lawyers will cloak the combat rules in a separation-of-powers argument that courts shouldn’t mess with the warriors. It has some merit, but would still require Panetta to show that the gender exclusion satisfies an “important” governmental interest. And that would probably oblige Panetta to fall back on outmoded notions that placing women in the ranks undermines troop readiness and cohesion. It’s the kind of operational argument that non-military lawyers will hear, and nod, and then – once the generals are out of the room – say “Can you believe these guys want us to argue this?”
The Pentagon is ending two wars while facing a budget crunch. But bringing gender equality to combat is not a big-ticket item. And change is never a linear narrative. If history is any indication, many pioneering women won’t meet the physical requirements or will choose to drop out, as cadet Shannon Faulkner did in 1995 after the Supreme Court forced The Citadel to end its all-male tradition. But The Citadel is now 10 percent women. For the Pentagon, working through an inevitable change on its own terms is far preferable to going to trial – and, quite possibly, losing.
The Pentagon should have rules that reflect the society it defends – a society that has already abandoned gender discrimination as public policy.
Let it go.