The voice of Terry Jones threatening to burn 200 Korans drowned out most other news last week, so some may be unaware that U.S. District Judge Virginia A. Phillips ruled Thursday that the military’s “Don’t Ask, Don’t Tell” policy was unconstitutional. Phillips, who was appointed to the bench by Bill Clinton, claimed excluding homosexuals from the military violated the First and Fifth Amendments, and had a “deleterious effect” on the military.
There is a fact even less reported than this: the Obama administration essentially threw the case.
Phillips’ decision described the government’s anemic “defense” of the policy it putatively supported. “Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act,” she wrote.
In fact, Phillips cited a prominent voice in the administration to make her case against the administration; she quoted Barack Obama himself on the subject of “Don’t Ask, Don’t Tell” (DADT). Citing the president against his own administration, she wrote:
President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009: “Don’t Ask, Don’t Tell doesn’t contribute to our national security…preventing patriotic Americans from serving their country weakens our national security…[R]eversing this policy [is] the right thing to do [and] is essential for our national security.”
As of late last week, the Obama administration has not decided whether it will appeal Phillips’ decision. However, the administration has taken pains to avoid challenging its Gay Left allies in court. Recently, then-Solicitor General Elena Kagan refused to appeal Witt v. Dept. of Air Force after the Ninth Circuit Court of Appeals sent the case back to a lower court with a lower threshold of evidence. Witt will testify today in Washington state that she alone should be exempted from military policy and be reinstated with the right to serve as an open lesbian. (The New York Times noted the slippery slope her case presents, citing experts such as Professor William A. Woodruff, “a retired Army lawyer who teaches at Campbell University School of Law in Raleigh N.C.,” who “said that if the Witt ruling stood, individuals could challenge other kinds of discharges, like those for excess weight or poor eyesight.”)
If Barack Obama’s words undermined his inept case in favor of keeping gays out of the military, his administration has already opened a similar door to gay marriage.
In her “defense” of the Defense of Marriage Act (DOMA), Kagan wrote gratuitously, “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”
In July, Judge Joseph Tauro of Boston ruled that DOMA is unconstitutional. Nationwide gay “marriage” by judicial fiat may not be long in coming. Few things could make Barack Obama happier than enacting a radical social transformation without having to do so himself.
In fact, Obama has turned to the United Nations Human Rights Council to establish gays in the military — and perhaps gay “marriage” — as a protected human right.
And foreign law played a large role in Judge Phillips’ decision.
Foreign Law and the UN
The Washington Times noted Phillips’ “decision rested heavily on the 2003 Supreme Court ruling that struck down [a] Texas sodomy law.” The ruling in Lawrence v. Texas, authored by Justice Anthony Kennedy, drew overwhelmingly on foreign law instead of the U.S. Constitution or even established precedent.
As I have noted, a critical 5-4 majority of Supreme Court justices now supports citing foreign law on par with the Constitution. Sonia Sotomayor has told the Puerto Rican chapter of the ACLU that the robed aristocracy read foreign opinions, because they “set our creative juices flowing.” Ruth Bader Ginsburg said arguments against supplanting the Constitution with foreign jurisprudence only “fuel the irrational fringe.” Elena Kagan promised as Solicitor General to “offer reasonable foreign arguments” before the High Court, and her legal heroes, especially Thurgood Marshall and Israel jurist Aharon Barak, are infamous for their loose and creative application of foreign statutes to justify their preconceived notions.
Perhaps it is no coincidence that President Obama’s report to the UN Human Rights Council included a long section on LGBT rights, stating in part:
President Obama is committed to repeal the “Don’t Ask, Don’t Tell” statute…The President [sic.] has also supported passage of the Employment Non-Discrimination Act…Debate continues over equal rights to marriage for LGBT Americans at the federal and state levels.
The American, who people have overwhelmingly voted against same-sex marriage, may see their opinions eroded by double fiat: first by the judiciary, then by the UN.
Surveys show most military men oppose repealing “Don’t Ask, Don’t Tell” — because the decision could be deadly.
How to Lose a Quarter of Your Troops Without Really Trying
Lt. Col. Buzz Patterson has written about Barack Obama’s desire to socially engineer the military. Congress may soon follow suit. Indeed, a majority of Democrats want to punish soldiers who disapprove of homosexuality. Yet well-fed civilians have no appreciation for the dangers that allowing open homosexual military service would invite. The 1993 DADT law states, “military society is characterized by its own laws, rules, customs and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.” Certain strictures are needed to preserve that military culture. Open homosexual service threatens unit cohesion, military preparedness, and could lead to an exodus of nearly one-quarter of all soldiers out of the military.
Although Adm. Mike Mullen has given his approval to repealing DADT, the heads of the Army, Navy, Air Force, and Marines have reserved judgment until a survey of their men has been completed. Marine Corps. (note Mr. Obama, it’s pronounced “Core”) Commandant Gen. James Conway stated forthrightly the vast majority of his men want no part of the new policy. “We’d just as soon not see it change,” he said, noting “an overwhelming majority [of Marines] would like not to be roomed with a person that is openly homosexual.” He added: “My own surveys indicate that [this aversion is] not age-dependent. It’s not rank dependent. It’s not where you’re from.” But cohabitation of straight and homosexual men is the inevitable result in the Marine Corps. The Marines do not have the funds to build private housing for every recruit — and rest assured, Obama will not give it to them.
Experts testify this will lead to a weaker military, one less able to defend the United States from attack. CNSNews quotes “Lt. Col. Bob Maginnis (Ret.), who was a member of the Army’s study group examining the homosexual ban in 1993 and was an advisor to the Defense Department Military Working Group on homosexuals in the military.” Maginnis said, “It would create a morale problem, primarily due to privacy violations and concerns that we found in ’93, and I think just as valid today.”
Indeed, the military is still recovering from Bill Clinton’s sexual integration of the military and its resultant illicit sexual relationships. The homosexualization of the military creates further difficulties. Would troops feel comfortable in close quarters with those who lavish unwanted sexual attention on them? Should they be in close proximity if they want said attention? What of the potential for sexual molestation, or blackmail, of straight soldiers by homosexual superiors? Unit cohesion will suffer if a recruit is suspected of receiving preferential treatment in exchange for sexual favors. Will soldiers mind bleeding alongside a segment of the population far more likely to carry the AIDS virus?
These are more than theoretical questions. Retired Marine General John Shaheen testified before the Senate Armed Services Committee in March that Dutch leaders blamed “liberalization of the military” for their weakening national defense.
If social engineering is recognized as dangerous in secular/socialist Europe, it will be doubly so stateside. And many soldiers will never serve under such a command. A December 2008 Military Times poll found a full 10 percent of respondents said they would leave the military if the rules changed. In all, nearly a quarter (24 percent) of enrolled troops would definitely leave or would consider leaving if homosexuals are allowed to serve openly in the military.
Naturally, the Democrat-controlled Congress continues to barrel in that direction. The House voted earlier this year to overturn DADT, after 10 minutes debate; although a measure is currently stalled in the Senate, that body could vote on the measure before year’s end. Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network (which wants to overturn DADT), has used the court case to lobby for the Senate bill. “This should not linger in the courts,” Sarvis said. “It should be resolved by Congress, this year.”
Overturning DADT would be one of the ultimate payoffs a lame duck Congress could give to its left-wing base.
Senate passage is only moderating less disturbing than judicial fiat, for all the dangers either method poses to the military. However, the courts and the UN pose a second threat: to our constitution. The Constitutional “right” to serve in uniform should be easily settled: there is no such right. General George Washington ejected a soldier for homosexuality in 1778. Nine years later, the Founders unanimously elected him to preside over the Constitutional Convention. (See this link for a history of the Founders’ view of homosexuality — inside the military or out.) The Founders did not begin a rebellion against the Crown to assure homosexuals the right to serve in the military. That position is more consistent with King George III than George Washington.
Since Bill Clinton instituted the “Don’t Ask, Don’t Tell” policy, Judge Phillips ruled in her opinion that the man who appointed her made one wrong decision. However, it seems clear he made at least two, with DADT the less damaging.
There’s no telling how much damage Obama will inflict on the military if given a free hand.