Don't Ask, Don't Tell, Don't Enforce

U.S. District Judge Virginia Phillips, who earlier decided that the military's policy of Don't Ask, Don't Tell with respect to people in the military having or being inclined to same-sex sex was unconstitutional, earlier this week ordered the military to stop enforcing that policy.  I discussed her decision on its constitutionality here and expressed my agreement with her decision.  She had given the government time to respond to her decision with a plan to end the policy, which it failed to do.   The Democrats did try to pass legislation in Congress to strike the policy, but despite their overwhelming majority, they could not pass the legislation.  The Republicans, to their shame, largely opposed the legislation, as did numerous Democrats.  So, Judge Phillips has acted to halt enforcement of the policy that Obama and the chairman of the Joint Chiefs of Staff have said they wanted ended.  Nonetheless, the Justice Department has decided to appeal the decision.

This is one of those Go Figure moments.  The Democrats have long claimed they were the champions of homosexuals, but have not ended this policy in the last nearly two years despite having the Congress and the presidency locked up.  Laws discriminating against same-sex relationships and sexual acts are mostly popular with the People yet, though the discriminatory attitude is very much tied to the older generations.  Mostly religious conservatives favor discrimination.  Because of that, the Republican Party is mostly on-board for such discriminatory acts.  This is one of its grievous faults.  Faced with a disastrous election in a few weeks, many Democrats did not have the nerve to defend the equal rights of homosexuals and bisexuals to their lives, liberty, and pursuit of their happiness.  Judge Phillips gave the Democrats an out, which they should have taken.

It is claimed that when a U.S. District Judge rules a law unconstitutional, the Justice Department must appeal the case, which is what it is doing.  This is nonsense.  The President is sworn to preserve, defend, and protect the Constitution of the United States, which of course the members of Congress are also.  The Justice Department reports to the President and he should have ordered them not to appeal the ruling of Judge Phillips because he is suppose to recognize the excellent argument she made as a correct interpretation of the constitutionality of Don't Ask, Don't Tell.  Perhaps, in the now well-established tradition of the Democrat Party, he has not bothered to read her decision.  If he did, he is failing us with his judgment of her argument.  If he did not, he is failing us with his turpitude.  He should be taking his duty to the Constitution more seriously.  Of course, from many things he has said and done, we know that he does not care to actually follow the Constitution since he sees it as being in opposition to many of his socialist policies.  For instance, he faults it for being a roadblock to redistributive policies.

Each of the three branches of the federal government has the obligation to preserve, protect, and defend the Constitution.  This is not a task given only to one branch.  When any of the three branches fails to exercise its independent judgment, the exercise of our individual rights is harmed.  When Congress considers legislation, it is obliged to consider whether it is constitutional.  If any Congressman thinks it is not, he is obligated to vote against it.  In fact, if he is not sure that it is constitutional, he is obliged to vote against it.  If the President is presented with a proposed law passed by Congress, he is obliged to decide whether it is constitutional or not.  If it is not, he is obliged to veto it.  Because it is the nature of government to try to expand its powers, it should be the practice to recognize that if any of the three branches of government believe a law is unconstitutional, we should be disposed to refusing to allow the force of government to be used to enforce that law.  The bias of the People should be toward limited government and a maximization of the rights of the individual.  If the federal courts rule a law limiting individual freedom of choice unconstitutional, then we have recognized in recent times that the law cannot be enforced.  Unfortunately, we seem to have lost the idea that the Congress and the President are also supposed to be bulwarks against the encroachment of government against our equal, sovereign individual rights as well.  A three-legged foundation is much more stable than a one-legged foundation.

On a related issue, the Justice Department is also wrongheadedly appealing two decisions of a federal judge in Massachusetts that the 1996 Defense of Marriage Act federal law is unconstitutional.  The judge ruled that the states, not the federal government, have the power to define marriage.  He also ruled the federal law violated citizens due process rights.  I have never seen any power given to Congress by the Constitution which would allow it to decide who has a valid marriage contract and who does not. 

In actual fact, I believe it very unwise to allow any government to define marriage.  Marriage is a spiritual union of people and there is no way to preserve fundamental freedoms of conscience and the right to pursue happiness if governments are allowed the power to define what constitutes such a spiritual bond.  What they do have within their purview is the job of enforcing domestic partnership contracts, which is done at the state and local government levels, not the federal level.  My views on this are given here, here, here, and here.  Domestic partnerships should no more define and limit the number and sex of partners than does a small business contract.  A single heterosexual couple, gay men, lesbians, bisexual people, multiple heterosexual couples, and polyamorous people should all be allowed the protections and benefits of domestic partnerships suitable to their needs and as agreed upon as free adults.