Pro-military advocates are warning against the dangers of letting federal district court judges start making significant Pentagon policy, saying it would essentially turn the military over to a network of political appointees who could be swayed by various pressure groups.
If a district court judge in one unilateral order can strike down a legal ban on open gays in the military, as did federal Judge Virginia A. Phillips, then such judges also could strike down the prohibition on women in land combat, or rules on wearing a uniform, or requirements for grooming, or even the war against al Qaeda.
Judge Phillips went beyond ruling the gay ban unconstitutional and letting appeals courts weigh in: She ordered the Pentagon to stop enforcing it — worldwide.
"The federal judging is intervening here in a way that I regard as unconstitutional," retired Air Force Gen. Merrill McPeak told The Washington Times. "The Constitution says that it's Congress that sets rules and regulation for the armed forces, not some federal judge."
In the 2008 election, Gen. McPeak, a former Air Force chief of staff and Joint Chiefs member, backed President Obama. But he disagrees with Mr. Obama's campaign promise to open the ranks to avowed gays.
"In my judgment, when I was a chief, allowing open homosexuality in our combat units would undermine the cohesion necessary to get the job done, in trying circumstances," he said. "I gave that advice to President Clinton, even though he had run the campaign on the promise to end the situation."
Mr. Clinton's plan to allow openly gay service members ran into stiff opposition from both sides of the political aisle, and he was pressured into signing a bill that turned the ban on homosexuality in the military into a matter of law, instead of a more easily changed military regulation it had been.
As part of the compromise for making the ban a statutory matter, he then ordered what became known as the "don't ask, don't tell" policy to implement the law.
The president's "authority as commander in chief does not extend to usurping the authority of Congress and the regulation of how the services will be administered," Gen. McPeak said.
Elaine Donnelly, who runs the Center for Military Readiness, which supports the ban on gays in the military, is warning the administration that it cannot let one judge set major military policy.
After Judge Phillips' September ruling, Mrs. Donnelly sent out a press release that began, "No Reason to Bow to the 'Supreme Judicial Commander of the U.S. Military.'"
"Her order striking the law suggested that a district judge knows more than members of Congress who conducted 12 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," Mrs. Donnelly said.
But Aaron Belkin, who directs the Palm Center, a pro-gay research organization at the University of California at Santa Barbara, said there is no reason the Obama administration cannot view the district court ruling as final, drop its appeal and end the ban.
Mr. Belkin said the administration and military leaders "have concluded that 'don't ask, don't tell' is hurting the military and that a policy of equality would be better for national security, and if the president drops the appeal of the Log Cabin case, then that would be the quickest route to a policy of equality. The president has said clearly he prefers Congress repeal the law, but I'm not sure if that's realistic at this point."
"The district court is not dictating policy," Mr. Belkin added. "The court found that this particular policy both violates service members' constitutional rights and also does so without furthering any government interest. … There was quite a bit of evidence that the policy hurts the military."
On the argument that if Congress is to be overridden on a major military regulation, it ought to be the highest court that decides, Mr. Belkin said: "They're ignoring 230 years of legal precedent. The federal courts have the final say on the constitutionality of law and policy, period. There's nothing that says, 'Oh, only the Supreme Court has the final word.' The federal courts have the final word."
There is now a two-track debate.
Judge Phillips order to end the ban is being appealed by the Justice Department.
On the other track, Mr. Obama's legislation to repeal the 1993 law is stalled in the Senate, where Republicans refused to allow the defense bill containing the legislation to reach the floor for debate.
After elections next week, Senate Armed Services Chairman Carl Levin, Michigan Democrat, will try again to bring the bill to the floor.
Analysts say two questions remain in the debate: Will Mr. Levin be able to peel away enough GOP votes to win passage? Or will a Pentagon study on gay integration, scheduled to be completed in December, change how senators vote and lead to the defeat of the measure?
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