EDITORIAL: Judicial assault on ‘Don’t Ask, Don’t Tell’

Activist judge decides to reorder the military

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Another federal judge has decided to impose her personal views on the nation’s laws so that they will favor homosexual conduct. On Thursday, U.S. District Judge Virginia A. Phillips declared unconstitutional the “Don’t Ask, Don’t Tell” law that prohibits homosexuals from serving openly in the military. Not that it is any of her business.

Judge Phillips‘ finding arose from a suit filed by the Log Cabin Republicans against the Clinton-era law. This Clinton-era judge invoked a “heightened scrutiny” test, which allowed her not only to analyze the direct effects of the law on homosexuals in uniform, but also to expostulate on such broader matters as recruitment, unit cohesion, military effectiveness, budgeting and other issues related to the law. She cited some studies, quoted some experts and then tossed the law. It might make for an interesting college term paper, but this is no way to make national security policy.

The decision rested heavily on the 2003 Supreme Court ruling that struck down the Texas sodomy law and established rights associated with the “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” In applying this logic to the military, Judge Phillips demonstrated little evidence that she has any knowledge of the unique requirements of service in uniform. The military is not a vehicle for actualizing the “autonomy of self,” and restrictions on expression and activities are essential to the life of a serviceman. Judge Phillips noted that “Don’t Ask, Don’t Tell” “captures within its overreaching grasp such activities as private correspondence between servicemembers and their family members and friends, and conversations between servicemembers about their daily off-duty activities.” The judge seems to imply, wrongly, that being off duty is similar to being a civilian and that what troops do on their off time is not governed by the Uniform Code of Military Justice. The punitive articles of the UCMJ contain many court-martial offenses that would not contribute to the “autonomy of self” but are necessary for good order and discipline.

Judge Phillips also engaged in some highly specious reasoning regarding the First Amendment. By her logic, the law is an impermissible infringement on free speech because “heterosexual members are free to state their sexual orientation … while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated.” But admitting one is homosexual under the current law amounts to a confession. Under this reasoning, the serviceman taking illicit narcotics should be able to say so without punishment because those who do not engage in banned drug use can openly talk about not doing it without fear. The bank robber’s confession should be thrown out because those who did not rob a bank have the freedom of speech to talk about a bank robbery that he lacks. Judge Phillips is putting the cart before the horse, trying to apply a standard that would make sense if it were legal for homosexuals to serve openly in the military, which it is not.

The Defense Department is undertaking a thorough review of “Don’t Ask, Don’t Tell,” which will be more comprehensive than the superficial examination of Judge Phillips. It’s not the place for judges to weigh the impact of laws and personnel policies on matters of national security or to assess the balance of risks and costs associated with their implementation. The policy should not be overturned by an activist judge cherry-picking arguments to reach a predetermined conclusion. Those who are on a personal quest for the autonomy of self would do well to seek it outside the brotherhood of arms.

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