All’s fair in love and war… unless you’re gay. This summer’s culture wars have touched on two ends of our social fabric: marriage equality, and equality in military service. On the former, a federal court ruling on Proposition 8 marked a watershed in the grassroots movement and the legal battle for the right to marry. And last week, the civil rights struggle rippled into Pentagon with another landmark ruling from California on Don’t Ask, Don’t Tell.
The federal court struck a decisive blow at the 17 year-old “Clinton Compromise” that silenced and stigmatized gay Americans in uniform. The law was declared unconstitutional based on an expansive reading of the First Amendment, and legally unjustifiable as military policy. The Los Angeles Times reports that the judge found that DADT didn’t help the military’s mission and in fact harmed service members:
U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect” on the military.
This perspective complements the reasoning behind the Prop 8 ruling, which debunked the right’s argument that same-sex marriage was somehow harmful to children and families. In fact, social science research reveals the opposite, that children thrive in stable homes with parents of any sexual orientation. Both rulings turn on issues of access to social institutions and individual freedom. Regardless of your attitude toward the military, or toward formal marriage, the constitutional principles of liberty and equality, not the institutions themselves, got the final word in court.
But the DADT ruling is on shaky legal ground. UCLA law professor Adam Winkler warily gauges Justice Kennedy’s gay-friendliness:
Kennedy’s tolerance may stop at the barracks door.
Before he joined the Supreme Court, Kennedy was a judge on the Ninth Circuit when he directly addressed the conflict between gay rights and military deference. Ruling on the more draconian, pre-Clinton policy, Kennedy voted to uphold the complete ban on gays in the military because “constitutional rights must be viewed in light of the special circumstances and needs of the armed forces.” The “tensions and hostilities” created by gay personnel “might undermine” military duty and discipline, he wrote. “In view of the importance of the military’s role, the special need for discipline and order in the service,” Kennedy explained, the gay ban was justifiable.
Military deference has a checkered history in American jurisprudence. The most shameful example was the Korematsu decision, which upheld the internment of people of Japanese descent in World War II. In recent years, the courts have struggled with how much to defer to the top military officer—the President as Commander-in-Chief—in terrorism cases; here the Court has asserted a judicial role, albeit only a limited one.
As with marriage equality, the last leg of the struggle may play out not in a courtroom but a legislative chamber. The Obama administration, which has previously voiced opposition to DADT,could push for a repeal of the policy—but that would involve a far bigger test of where lawmakers and the public stand on the issue. LGBT folks in the military may not evoke the same vitriol from the Christian right as same-sex marriage, but it does raise thorny questions about military interests versus personal liberties. Polls show that these are issues that that divide public opinion, but increasingly often in progressives’ favor.
Unwilling to leave it up to the courts, LGBT activists want Democrats, namely Obama and Sen. Harry Reid, to step up to the plate in Congress. The Senate is mulling a Defense Authorization Bill containing an amendment to repeal DADT, paralleling a bill passed in the House earlier this year. Activist and Iraq war veteran Lt. Dan Choi writes at HuffPo:
I demand President Obama and Senator Reid do the same, as our moral obligations compel us to strike down injustice and discrimination wherever it exists.
Judge Phillips has forthrightly exercised her unquestionable moral authority and lived up to her mandate to defend our constitution against a most vicious domestic enemy: discrimination against honest Americans….
I implore President Obama and his Justice Department to refuse lifting a finger, refrain from wasting any energy, statements, or money defending “Don’t Ask Don’t Tell” in the court system. His constitutional and moral obligations are most compelling at this historic time.
The Human Rights Campaign has also seized on the ruling to press for legislation to officially kill DADT: “With this legal victory in hand, Congress is in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members.”
But despite general opposition to DADT among Democrats, the litigation has hit an internal speed bump in the executive branch, since the Justice Department has been legally defending DADT. The DOJ has taken a similar stance on the Defense of Marriage Act, presumably on the grounds that the administration is obligated to defend existing laws in court in the absence of congressional action. Critics say the White House is simply dodging in order to avoid a political clash.
According to Kate Sheppard at MoJo, “failing to keep up the legal defense of DADT go leaves the administration vulnerable to attacks from the right that ‘activist’ courts are calling the shots on crucial policy decisions rather than elected official.”
So for now, DADT remains stranded in a legal no-man’s land, and without overwhelming grassroots pressure to break the political silence, there will probably be no badge of courage in the offing for the Senate or Obama on an issue dogged by moral cowardic.