In 1993, President Clinton and a Democratic majority in both houses of Congress passed "Don't Ask, Don't Tell" into law. It was an uneasy compromise, but a little progress. Whereas previously, gays and lesbians were automatically discharged the new policy basically applied the Victorian adage of "it's ok as long as you don't get caught".
The wisdom of not allowing gay men and lesbian women to serve openly is certainly in question. Whether one agrees with the compromise policy or not, no one has questioned the role of President as commander in chief of the armed forces or the role of Congress in oversight from setting policies regarding the services. As a matter of history, both President and Congress have sought appropriate counsel from the professional soldiers. Today, a federal judge has injected the courts into the historical Constitutional prerogatives of the Executive and Legislative branches of government.
District Court Judge Virginia Phillips has ruled that "Don't Ask, Don't Tell" is unconstitutional. The judges decision is in this link.(http://www.politico.com/static/PPM170_100909_logcabin.html) The Justice Department called no witnessed and offered a tepid defense, if you choose to call it a defense.
The timing of this decision is strange given that there is now significant bipartisan support to undo the policy. This is the relevant point. Congress and the President are working, however slowly to end "Don't Ask, Don't Tell". It was Abraham Lincoln that decided black men should form fighting units in the Civil War, not a judge. It was President Truman who unilaterally ordered the desegregation of the armed services.It was not ordered by a judge. Judge Phillips' decision relieves our duly elected President and Representatives of legislating a change at a time when we need to hold them all to account and put them on the record. The American people as mid term elections approach are entitled by recorded vote to know where they stand. Judge Phillips has now given them a pass. Why legislate if the courts will decide? Both sides will then debate "judicial activism" rather than going on the record with a vote. Democracy deserves better.
Let me be clear. Serving your country in uniform is the noblest endeavor. But NOBODY has a right to serve. It is a privilege to serve, not a right. We have, in my view reached a point in this nations' history that we now recognize DADT as an anachronism. That's my view, but you see I'm not qualified to make that determination as it is not my responsibility to provide for the defense of the nation and to perpetuate liberty in its defense. We elect people to do that. I have never served and however archaic the present policy as constructed may be, I defer to those whose legacy it is to protect fat slobs like myself who never initiated an effort to serve a nation whose privileges I have enjoyed.
Judge Phillips is simply not qualified or justified to make determinations that DADT has in military effectiveness and the morale of those who serve. In making such a declaration, she has crossed a line. The Constitution has clearly defined separation of powers. Service in uniform has restrictions that are necessary that would be unconstitutional in civilian life. The defense of the nation requires those in service to accept different conditions that are deemed necessary in the interest of the nation. Service is an act of conformity as an action to preserve individual liberty.
The judges' decision will ultimately be over ruled by higher courts. The ruling is not confined to a policy (DADT). What is at stake here is not who can serve in uniform. The larger issue is a clear judicial over reach and a violation of the separation of powers that is clearly delineated in the Constitution. The defense of this nation, whether we agree with those responsible for it, cannot be held hostage to judicial fiats. The stakes are higher than the relevance of sexual orientation in service. The judge's decision cannot stand. Now, we just need to hold our elected representatives to account and vote accordingly. For in a Republic such as ours it is the vote of a common man, not the compassionate musings of a judge that determine outcomes.
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