Not appealing Log Cabin Republicans v. Gates? Incomprehensible.

Gary McCaleb
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Posted: Oct 23, 2010 12:01 AM

On Oct. 12, one federal judge wrested control of the American military from the other two branches of government and ordered the immediate worldwide acceptance of open homosexual/bisexual behavior in the military. Two days later, the Department of Justice appealed that deeply flawed decision in Log Cabin Republicans v. Gates—a decision that should never have been made. The lower court should have honored the constitutional separation of powers that vests Congress and the President with control of the military.

The very next day, the leftist homosexual advocacy group, Servicemembers United, fretted that the DOJ appealed the Log Cabin case but chose not to appeal a ruling in an Alliance Defense Fund lawsuit that struck down an unconstitutional National Park Service speech regulation.

Indeed, SU deemed the government’s decision to appeal the Log Cabin case while not appealing the ADF case to be “incomprehensible.” But to borrow a line from The Princess Bride with regard to a similar term, “You keep using that word. I do not think it means what you think it means.”

Indeed, the DOJ’s decision is entirely comprehensible.

First, the ADF case that the DOJ let stand was issued by a federal appeals court, unlike the lower district court decision in Log Cabin. So, the ADF decision had already been rigorously reviewed on appeal and was so well grounded in existing Supreme Court law that only a terminally bored (and marginally competent) attorney would dream of seeking further review.

Second, the one-judge district court decision in the Log Cabin case will create chaos in the military: even President Obama, who has relentlessly demanded that the military normalize homosexual behavior, admits that such radical change cannot happen instantaneously. At a dead minimum, the military will have to burnits precious time to figure out things like who will bunk with whom in barracks and whether to continue enforcing the regulatory ban on adultery when the court just ordered accommodation of “bisexual” behavior.

Third, the Log Cabin case did not consider the impact on the military chaplaincy and its critical role in teaching morals and ethics to all service members. If anything, that failure is what’s “incomprehensible,” as the DOJ did not forcefully present the issue despite both the President and the Pentagon knowing that the conflict will arise if homosexual/bisexual behavior is normalized.

Fourth, the Log Cabin decision shreds the constitutional principle of judicial deference to professional military opinion when it comes to running the military—and, under binding Supreme Court authority, courts must defer to the military on a broad, programmatic level. Instead, the district court flipped the deference principle upside down.

Consider the issue of adultery between a man and a woman: is it unreasonable for the military to say that adultery undercuts the morale of its troops by devastating families that are already deeply strained by the obligations of service? Of course not. And it scarcely strains one’s reason to say that a court should defer to that professional opinion across the board. But what the Log Cabin approach would do is require the military to prove that a specific act of adultery undercuts military readiness—and if it can’t, the home-wrecking adulterer gets away scot-free. The lower court’s error opens a Pandora’s Box of litigation that could paralyze the military even while two hot wars roil on.

Bear in mind that DOJ attorneys cannot look at a case in isolation. If they decide to throw the case by not appealing now, they are subjecting their clients to the consequences of each of the issues I just touched on. DOJ attorneys, like all other attorneys, are obligated to represent the best interests of their client. When a decision is as dangerous and as flawed as is the one in the Log Cabin case, then the reasonable and ethical choice is to appeal—and appeal swiftly.

Suffice it to say that, with even a quick look at the facts, SU’s lack of comprehension is what’s truly incomprehensible.