No Reason to Bow to the 'Supreme Judicial Commander of the U.S. Military'

Last week the Justice Department filed an immediate appeal in a case brought by a gay activist group calling itself the Log Cabin “Republicans,” requesting a stay of a bizarre worldwide injunction that California U.S. District Judge Virginia Phillips issued on October 12.

Judge Phillips, who seems to have appointed herself “Supreme Judicial Commander of the U.S. Military,” ordered the Defense Department to stop enforcing the 1993 law stating that homosexuals are not eligible for military service, which is usually mislabeled “Don’t Ask, Don’t Tell.” Somehow the activist judge missed Finding No. 2 in the actual law, “There is no constitutional right to serve in the armed forces.” (Section 654, Title 10, U.S.C.)

Sweeping aside the well-established principle of judicial deference to the other branches of government, the San Diego jurist also disregarded Article 1, Section 8 of the U.S. Constitution: “The Congress shall have Power…to make Rules for the Government and Regulation of the land and naval Forces.” Her presumptuous declaration that the 1993 law is unconstitutional proved what the Supreme Court has recognized several times: The judiciary is the branch of government least qualified to make policy for the military.

Judge Phillips reached her short-sighted conclusion after eight days of one-sided testimony from gay activists who failed to prevail in the legislative branch. Her order striking the law suggested that a district judge knows more than members of Congress who conducted twelve legislative hearings and numerous field investigations, followed by hours of floor debate culminating in bipartisan, veto-proof majorities enacting the 1993 law, which federal courts have upheld as constitutional several times.

House Armed Services Committee Ranking Member Howard P. “Buck” McKeon and the American Legion, immediately denounced Judge Phillip’s outlandish injunction to stop enforcement, which will not survive Supreme Court review. The Department of Justice, which filed an expedited request for a stay, will file appeals with the Ninth Circuit Court of Appeals and the U.S. Supreme Court in the likely event that Judge Phillips denies their request.

Complicating matters is President Barack Obama, who last week renewed his campaign promise to repeal the 1993 law “on his watch.” Three times the 14-page Justice Department brief cites support for repeal by President Barack Obama, Secretary of Defense Robert Gates, and Joint Chiefs Chairman Adm. Mike Mullen. These are the same three officials who are supposed to “certify”─ after Congress votes for repeal with “delayed implementation─that revocation of the 1993 law will not impose negative consequences on the military. Given the triumvirate’s predisposition, affirmed in the Justice Department brief, any member of Congress who relies on such a “certification” probably believes in “shovel-ready projects.”

The cited officials’ statements of opinion, whether intended to impress the judge or to mollify outside activist groups, are irrelevant to the underlying litigation. What’s worse, the president’s elevation of politics over principle creates the appearance of collusion with opposing litigants, whose views President Obama shares. The brief omits mention of the four military service chiefs of the Army, Navy, Air Force, and Marines, who are known to oppose repeal of the law.

The Department of Justice appeal also blows the cover of the Pentagon’s Comprehensive Review Working Group, which is charged to produce a report to Congress by December 1. Dropping all pretense of objectivity, the Justice Departments assures Judge Phillips that the Working Group will determine “how best to implement a change in policy in a prudent manner,” and make recommendations for the “appropriate treatment of servicemembers who object…” This dispels the illusion that Working Group officials have been “engaging” the troops in order to reflect the views of all personnel, including those who support the 1993 law.

The Justice Department’s appeal barely mentions the strongest arguments in defense of the law, creating an advantage for LGBT (lesbian, gay, bisexual, transgendered) activists who are trying to repeal the statute by judicial fiat if not by congressional action that appears increasingly remote. Members of Congress and others concerned about our military should request the opportunity to intervene in the case with strong, clear, amicus briefs defending the current law.

The government should not have to prove to a federal judge that the 1993 law stating that homosexuals are not eligible for military service is, on balance, the best policy from a national defense perspective. The only issue for the judge to decide is whether Congress had the power and whether the resulting law has a rational basis. The plain text of the Constitution gives us the answer to the first question and the legislative history and specific findings in the current law provide the answer to the second.

Matters of constitutional principle go far beyond the question of professed homosexuals in the military. That issue is important to the future of the armed forces but less important than the question of who gets to decide. Justice Department lawyers know this, but the Commander-in-Chief seems determined to put politics above principle. Given mixed signals from the Obama Administration, Congress must retain the current law, and step up to defend the rational basis standard of review that all federal courts should apply in matters involving the military.