Obama Should Appeal Decision On 'Don't Ask, Don't Tell'
Late last week, Federal District Court Judge Virginia Phillips found 'Don't Ask, Don't Tell' to be unconstitutional. It is clear what its difficulties are. There have been a spate of decisions in the past several months, on the Defense of Marriage Act, and of course Proposition 8 where the District Courts have outrun the Supreme Court's official pronouncements as to the level of scrutiny that they will give to government actions. Traditionally the regulation of marriage had been regarded a legislative function. The internal operations of the military more so. The decision of Judge Phillips draws very strong conclusions about the deleterious effects of the 'Don't Ask, Don' Tell' rule, which may be true, but which show no deference to the legislative branches where it is most needed, in managing its own institutions.
I would be loathe to let that decision stand, even though I would want the military, the president, and Congress to seriously reconsider this issue in light of experience overseas and in the US military. But the legitimacy of the policy could easily turn on the mode of its implementation. I do hope that the president decides to appeal, if only to preserve the dominance of political institutions over government operations. I feel quite differently about government regulation of private affairs, where the presumption should be against legislative interference.
FREEDMAN > Don't Ask, Don't Tell...Don't Appeal?
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Re: Obama Should Appeal Decision On 'Don't Ask, Don't Tell'
I haven't read more than the summaries of the opinion, which suggest that the opinion is weak, weaker even than Judge Walker's ruling against Prop 8. Supporters of gay rights should want their best arguments put forward, not victories based on shaky grounds that make it likely they will suffer a loss on appeal.
This is an area where Judge Walker's claim of no rational basis for a ban on gays in the military will not work. As Richard suggests, the courts are usually very deferential to military judgments about policy, and judges are usually loath to impose civilian standards on the workings of the armed forces. To take just one obvious example, the courts have not overturned the military's ban on women in combat roles -- there would be a stronger constitutional case against this ban than the one on gays, since gender is given tougher judicial scrutiny than sexual orientation.
The notion that the right of gays to serve in the military is based on the right to free speech doesn't pass the laugh test. The military already does not permit freedom of speech -- it is a crime, for example, under the code of military justice to show disrespect to the President of the United States. Does the judge think that privates have the first amendment right to argue over their orders with their commanding officers too? Do the religious have the right to wear different uniforms? The Obama DOJ, if it weren't engaged in tomfoolery in its legal positions on gay rights, would win this one, if it were to appeal. It has an obligation to appeal, unless they honestly believe the law is unconstitutional -- and if Obama believes that, he must explain in public why.
Edited on Sep 14, 2010 at 7:44amMay '10
Re: Obama Should Appeal Decision On 'Don't Ask, Don't Tell'
The trend of government bodies refusing to appeal decisions when the people in power at the time like the result (a la California's refusal to do anything about Judge Walker's decision) has really caught me off-guard. Is this something I've just missed out on over time or is this a new development? Either way, do we need to adjust rules on standing so that someone - anyone? - can intervene to enforce the law when those sworn to uphold it refuse to do so?