- The Washington Times - Tuesday, November 2, 2010

Yesterday’s election will help put the brakes on the Democrats’ leftist social experimentation. Resistance was already underway in the courts. In two key cases regarding homosexuality, the pendulum is swinging back in a traditional direction.

On Monday, a three-judge panel of the U.S. 9th Circuit Court of Appeals put a hold on federal district Judge Virginia A. Phillips’ order banning the military’s “Don’t Ask Don’t Tell” policy, saying her “analysis and conclusions” might contradict four or more appeals courts. Congress is due significant deference on constitutional matters, the panel reminded, and “‘judicial deference … is at its apogee’ when Congress legislates under its authority to raise and support armies.” The judges repeatedly quoted an earlier case saying, “Courts are ill-suited to second-guess military judgments that bear upon military capability and readiness.”

In the armed forces, morale and unit cohesion are crucial to successful operations. Military duty is not a right, but a service. It is definitively the province of elected lawmakers and the brass, not of rogue judges, to decide if open homosexuality is detrimental to an effective and healthy fighting force.

In another big case, citizens are fighting to save California’s voter-approved ban on so-called homosexual “marriage.” They argue the belief that marriage is a union specifically between a man and a woman “has been confirmed throughout history by all of the esteemed authorities on the subject, from the lexicographers who have defined marriage, to the eminent scholars in every relevant academic discipline who have explained marriage, to the legislatures and courts that have given legal recognition and effect to marriage.” In a 2008 referendum, Golden State voters reaffirmed that understanding. Yet, in a willfully arbitrary judicial power grab, Judge Vaughn R. Walker ruled in August that homosexual “marriage” is a universal right.

In defense of voters who passed the referendum defending traditional marriage, this appeal further states that the judge and homosexual advocates “simply cannot avoid the facts that 1) every Supreme Court decision that has upheld the fundamental right to marry has involved the union of a man and a woman, 2) the only Supreme Court decision to consider whether this right extended to same-sex couples unanimously and summarily rejected that suggestion, and 3) the Supreme Court cases addressing the right to marry have repeatedly emphasized the abiding connection between marriage and the unique procreative potential of sexual relationships between men and women.”

No judge should get away with rewriting - out of thin air - laws that the people and the centuries have overwhelmingly ratified.