Don't Ask Don't Tell Court Decision Worse Than Same-Sex Marriage Decision

Ken Klukowski
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Posted: Sep 10, 2010 9:07 AM

The Sept. 9 federal court decision striking down Don’t-Ask-Don’t-Tell is shocking and outrageous. It’s far worse that the California same-sex marriage decision, which is difficult to believe, given that marriage decision was terrible.

This is not to say that the military decision, Log Cabin Republicans v. United States, necessarily has more of an impact on society than redefining the institution of marriage. After all, marriage is the fundamental institution of human civilization.

What makes Log Cabin worse is the judicial interference in the military. This decision came from the U.S. District Court for the Central District for California. As Judge Virginia Phillips acknowledges in her 86-page decision, courts are to give special deference to the president and to Congress when it comes to national policies concerning military readiness.

But then she completely ignores that Don’t-Ask-Don’t-Tell is the policy judgment of the president, acting as commander-in-chief, and approved by the people’s representatives in the U.S. Congress.

There is no constitutional right to serve in the military. Someone who is blind cannot serve in combat, no matter how patriotic they are or how willing they are to risk their lives for their fellow countrymen. Same thing for someone who is hearing-impaired. Or someone who has lost a limb. (I have allergies and foot problems, and I’m told those disqualify me from military service.)

So it is utterly outrageous—a level of judicial activism rarely seen in America—for a federal judge to invoke a supposed civilian right to homosexual conduct, declare it a fundamental right (which the Supreme Court never did when it legalized sodomy in the 2003 case Lawrence v. Texas), and use it to strike down a military law.

The Supreme Court has made clear that the federal courts are the least qualified branch of government to determine national security policy, and that the Constitution does not permit them to override military judgments of the president, especially when supported by Congress.

Today’s decision is over-the-top judicial activism. The American people need to demand judges who will adhere to the Constitution as it is written.