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.

Federal Circuit Judge Overturns Don't Ask, Don't Tell Act

Virginia A. Phillips, United States District Judge of the 9th Circuit, overturned the Don't Ask, Don't Tell (DADT) Act in a 9 September 2010 order.  The plaintiff is the Log Cabin Republicans.  I have read her memorandum opinion and it is sound and well-written.  It makes very interesting reading in fact, at least that part that follows the issues of the standing of the plaintiff and the members it represents.  One can readily understand why Admiral Mike Mullen, the Chairman of the Joint Chiefs of Staff, said on 2 February 2010 that he would like to see this DADT policy changed.

The court decision should have been much simpler than it was because of the very convoluted reasoning that precedent and excessive governmental power has created over the last hundred years of U.S. court decisions.  This is also a result of the poor understanding that Americans have of their equal, sovereign individual rights to life, liberty, and the pursuit of happiness.  That broad statement of our individual rights covers many more specific rights, many of which are not recognized explicitly in our Bill of Rights.  Our courts sometimes recognize these non-explicit rights, but they have to work very hard to do so.  There are also some special deferences given to the military which needed to be addressed in this ruling.

The DADT Act of 1993 requires the discharge of military personnel if any of the following applies:

1. They have engaged in, or attempted to engage in, or solicited another to engage in a homosexual act or acts.
2. They have stated they are a homosexual or bisexual, or words to that effect.
3. They have married or attempted to marry a person of "the same biological sex."

 The Log Cabin Republicans challenged the constitutionality of this law on two grounds:

1. It violates its members' substantive due process rights, which under the Supreme Court decision on Lawrence v. Texas includes rights associated with "autonomy of self, that includes freedom of thought, belief, expression, and certain intimate contact."
2. It violates the First Amendment rights of freedom of speech, to peaceably assemble, and to petition the government with grievances.

Considering the plaintiff's first claim of a violation of due process rights, the judge noted that Witt v. Dept. of Air Force, a Ninth Circuit decision in 2008, ruled that DADT constitutes an intrusion "upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas], and is subject to heightened scrutiny."  Therefore, it must

1. Advance an important governmental interest.
2. The intrusion must significantly further that interest.
3. The intrusion must be necessary to further that interest.

Witt v. Dept. of Air Force decided the DADT act did advance an important governmental interest.  This left it to Judge Phillips to decide if the intrusion significantly furthered that interest and if it was necessary.

One of the more interesting points the Log Cabin Republicans made was that the military "routinely delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments."  This even occurred when orders for deployment were received while an investigation was being considered.  This evidence "directly undermines any contention that the Act furthers the Government's purpose of military readiness."  "If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation."

The Judge noted that the Act:

• Impeded efforts to recruit an all-volunteer force.
• Caused the discharge of otherwise qualified servicemembers with critical skills.
• Made it necessary to lower moral, educational, and fitness standards.
• It hurt unit cohesion and morale by discharging well-trained and highly respected servicemembers.
• Military housing provides sufficient privacy protection of servicemembers.

Consequently, Judge Phillips ruled that DADT did not significantly further the important government interest and that if was not necessary.  Thus, it did violate the due process rights of servicemembers.

On the issue of the First Amendment rights violation claim by the Log Cabin Republicans, the judge noted again that Lawrence v. Texas recognized the right of expression was violated by the Texas law on sodomy.  After allowing that the military does not have to meet the same level of concern for freedom of speech as has to be met for civilians, the judge concluded that the second reason for discharge, a statement that implies a servicemember is homosexual or bisexual or something similar, is an unnecessary violation of their freedom of expression and of the First Amendment rights as claimed by the Plaintiff.

It is about time a court has made a ruling to eliminate the egregiously wrong Don't Ask, Don't Tell policy.  One would have thought that it would long have been obvious to everyone that this policy was a terrible and unnecessary violation of our equal, sovereign individual rights. Judge Virginia Phillips has performed her country a valuable service.

End Government Discrimination in the Military Based on Sexuality

The federal government of the United States of America rests its legitimacy on its defense and preservation of the rights of the sovereign American individual to his life, his liberty, his property, and his pursuit of happiness.  Each such American individual has the right to the choice of his own values and the management and control of his own life and his own body.  The only restriction is that he not initiate the use of force against others in his pursuit of his values and as he acts to manage his own life.  Central to a man choosing his values, managing his own actions, and controlling his own body is his exploring and discovering, developing and understanding, and expressing his own individual sexuality.  With the sole limitation that he does this by himself or with other consenting adults, his sexual activities are not the business of government.  Other individuals are free to think what they will of his choices and actions, but they have no right to use force to interfere with him, provided he has not initiated the use of force or acted upon a child or a known mentally incompetent person.

When government uses its monopoly on the use of force to deny a citizen his exercise of control over his life by refusing to hire him on the basis of his sexuality, that government has acted to violate a fundamental right of every individual.  In doing so, it has undermined its very legitimacy.  When the federal government of the U.S. refused to allow black Americans to serve in the military or when it segregated black American units from other units, it severely undermined the legitimacy of the U.S.  It did this until Gen. Dwight D. Eisenhower allowed black troops, who had been kept in a support role in WWII, to take up arms and reinforce white units then under severe strain in The Battle of the Bulge.  Gen. Eisenhower continued to press for integration of the military as Chairman of the Joint Chiefs of Staff from 1945 - 1948 and in 1948, President Truman issued Executive Order 9981, ordering the integration of the armed forces of the United States.  The Army finally announced its plan to desegregate in July 1952.  President Eisenhower, using similar arguments, had the Justice Department file a brief favoring public school desegregation when Brown vs. Board of Education came up before the U.S. Supreme Court in 1952.

After a great deal of fuss, the military also underwent desegregation with respect to women.  Despite all claims that desegregating our military with respect to black Americans and women would greatly harm its fighting capability, the U.S. military in recent years has proven to be the best it has ever been and as about as good as any military has ever been in human history.  The American military is at its best when it best represents American ideals of personal and individual liberty and the value of individuals acting upon their independent judgment and in their rational self-interest.  While there are times when our military men give up their lives for their beliefs, they generally are the best military forces in the world because they carry out their mission to protect our freedoms while living to fight another day.  We value life in America.  We value the lives of Americans of all races, both sexes, and of the many complex and individual sexualities of our people.

Admiral Mike Mullen, our present Chairman of the Joint Chiefs of Staff, stated earlier this month that he believes it is important that the "Don't Ask, Don't Tell" policy in effect in the military since 1993 with respect to same-sex relations and acts should be abandoned.  He believes the fighting capability of our military will not be harmed by doing so.  A past Secretary of Defense and Vice President, Dick Chaney, said last weekend that he believes that "When the chiefs [of the Joint Chiefs of Staff] come forward and say 'We think we can do it,' then it strikes me that it's time to reconsider the policy."

For years now, it has been clear that attitudes on sex in general and on non-heterosexual sex in particular were changing, with the younger generation being much more open-minded about the differences in individual sexuality.  To a fair degree, this owes to a weakening of the explicit and dogmatic beliefs of many of the Judeo-Christian religions.  While most Americans still believe in God and hold to some Judeo-Christian beliefs, those beliefs have been becoming more and more vague on the one hand and more tolerant on the other.  With respect to human sexuality, this is more or less consistent with a greater realization that not everyone is the same and that sex is not only about procreation.  There is a greater willingness to see sex as being one of life's greatest pleasures and therefore worthy of one's efforts to personally explore and discover those joys and to develop one's own optimal and rich sexuality.  The American independence of mind is beginning to overcome the strictures of a peculiarly unfriendly religious dogma toward sex in general and non-heterosexuality in particular.

Many of man's other religions have been much more open-minded, tolerant, and interested in sex and non-heterosexuality.  Contrary to considerable Christian propaganda, many societies in which bisexuality and homosexuality was widespread achieved high levels of civilization in various times.  One can list China, Japan, Persia, Greece, Egypt, Phoenicia, and Rome.  This was also the case among the educated in the cities of Renaissance Italy and later France.  Then there was the phenomena of the British upper class in their public schools, which are actually private in the U.K.  Those who claim that homosexuality and bisexuality must undermine civilization, fail to take note of the fact that many of the great achievers around the world and throughout human history in the arts, sciences, and business have not been heterosexual.  Tying this back to ending "Don't Ask, Don't Tell" in the military, many a great general and many elite soldiers have also not been heterosexual.

If our government is to be fully legitimate, it must stop discrimination against Americans who are not fully heterosexual in its hiring in general and specifically in its armed forces.  On this one issue, Obama agrees with me.  Can you believe that?  There is at least one thing he is not wrongheaded about.