The Usual Suspects have made the Usual Statements about the new court opinion concluding that Don’t Ask, Don’t Tell is unconstitutional. The gays, including the Log Cabin Republicans (who brought the suit) think it’s great, and the Christianists think it’s a horrible act of judicial overreach. The political universe remains in balance.
To that, I’ll add my own entirely predictable comment. Whether you agree with the opinion or not, yet another judge has spent a lot of time listening to the evidence of one side, and doing her best to balance that against virtually no evidence on the other. As in Perry v. Schwarzenegger, the side supporting a law that openly discriminates against lesbians and gay men relies on a majority vote and pretty much nothing else to justify exclusion of an extremely small minority.
In the 85 page DADT opinion, there are 54 pages devoted to laying out the evidence that DADT is unconstitutional. Weighing against that is a vote of Congress, ratified by a president’s signature. No judge would or should take that lightly, but neither is a judge obligated to ignore what the law actually does. And once again, a court has found that the hard evidence of unconstitutionality is more compelling than the vaporous political pretexts rationalizing a majority’s prejudices.
Did the court blithely dismiss concerns of national security? Well, the administration defending the policy doesn’t think that’s at issue, and the court quotes the Commander in Chief to that effect. So it’s unfair and incorrect for anyone to criticize the court for ignoring such concerns.
But in the end, everything returns to politics. And congressional repeal of DADT is exactly what lesbians and gay men, and their allies, are vigorously pursuing. But the problem of politics, the fundamental lack of rationality that drove passage of this miserable law in the first place, still plagues the Senate. Harry Reid is not unaware of the evidence the court considered here, and found convincing. He knows that 80% of Americans now say they support repeal of DADT. I would not be surprised to learn that 80% of Senators think repeal is probably the right thing to do.
But the fear, the sheer panic that some people still feel about homosexuals, remains the decisive factor in any politician’s calculation. It takes more than courage to get past that very irrational and very real fact; it takes independence. Court after court after court is now exercising its constitutional independence, and after laying out all of the real evidence, the genuine facts, they are more consistently finding that our politics still is not ready to face up to its obligation to ensure the equality of homosexual citizens, which means the courts have to correct the deficiency.
The Senate now has to confront a double challenge to its political fears. It has a public vote of confidence larger than any I’ve seen on any other issue in modern times, and it has a court decision saying that fairness is constitutionally required. Is the Senate really willing to let the incoherent distress of about 20% of our population continue to form the basis of an unconstitutional, unpopular and unwise policy of naked discrimination?
14 Comments for “Dear U.S. Senate”
posted by Brad on
I’m confused, you people are Republicans correct? If so, I’m ashamed to say I’m one after reading this crap all over your website! I will definitely have to advertise this site and let everyone know that I do not share your views about homo’s in the military. I served 11 years, 4 tours, and can promise you no NORMAL soldier that does not take it up the butt want to see a flaming homo walking around in the field speaking ebonics in a females voice!!!! You people are retarded! It is much much better not to know! What a distraction….OMG you people are Republicans! I’m so ashamed…
posted by Herb Spencer on
There’s something else going on here, and in the Perry case, that not many have picked up yet: the decreased dependency on (read, increasing irrelevance of) “traditional” gay rights advocacy groups like the ACLU, Lambda Legal, NGLTF, and others — some of whom actively criticized Log Cabin Republicans for having the temerity to bring this action without their imprimatur and pooh-pooed it steadily throughout its life in the trial court, just as they did in Perry, until it began to look like another fundraising cash cow — to handle litigation of this kind.
Chief Judge Walker’s decision denying the ALCU’s motion to intervene in Perry was the first chink in these groups armored — and sometimes strong-armed; see the ACLU’s smug motion to intervene in Perry — monopoly, and Messrs. Olsen and Boies, like LCR’s counsel in this case, managed just fine without them, thank you very much. For gays and lesbians who want to win their rights without the traditional trappings of the permissive, left wing agenda — and constant, concomitant appeals for political contributions to Democratic politicians and interest groups — these decisions rightly represent the day when we threw the monkeys off our backs.
posted by Throbert McGee on
I suspect a lot of the legal commentators at Volokh Conspiracy would be surprised to learn that they’re “Christianists”!
That point aside — rather than simply gloating about how flimsy the case is for maintaining DADT, the attentive observer should note that the government defendants in this case seemingly “took a dive”, and chose not to pursue the obvious line of rebuttal that the UCMJ already restricts the Constitutional freedoms of servicemembers in dozens of other ways.
In other words, the plaintiffs’ case (based on appeals to the 1st and 5th Amendments) was arguably a rather weak one because there’s ample precedent for courts deferring to the UCMJ in these matters. But the plaintiffs benefited from a sympathetic judge and a defense team that sees the repeal of DADT as inevitable and not worth the effort of fighting anymore.
posted by Chuck Colbert on
David, Very nicely and succinctly put. Having read the full opinion, what struck me was the raw prejudicial treatment — in fact down right cruel — that some service members suffered resulting from this odious law and military policy. What the enlisted man endured in the Navy is a national disgrace. And the commander-in-chief should be livid that this kind of crap probably persists. If that behavior does not get one’s dander up, what will? And don’t get me going on the waste of dollars and harm done to our national character. Kudos to you.
posted by David Link on
I have to ask, Throbert: Are you in favor of congressional repeal of DADT? That strikes me as the most important thing right now. We have repeal in our sights now, and it will take every ounce of our political will to get it across the finish line. It’s always easy to complain about court opinions, but the point of this post was that we now also have a political solution at hand. Those who think DADT is a problem (I obviously do) have the chance to do something politically about it. And I honestly don’t know if you’re among the 80% of Americans who support its repeal, or the 20% who don’t.
posted by Jorge on
Bah. And what is one supposed to do when one has two Senators up for re-election who favor the repeal and who are both a shoe-in to win? I’m sure they both got a lot of money from gay groups for that. Too bad that’s all the gay groups did–well, no, we had some brave people get in Obama’s face and demand action. Maybe if we had a better reputation among the general public they’d be motivated, too.
I’m out of campaign donation money this year, thank you very much. I spent the last of it on Reid’s opponent.
posted by Doug on
How any intelligent person could support a wingnut like Sharron Angel is really scary. Am truly glad you are out of campaign money.
posted by TS on
Another judicial overreach. DADT is stupid and bad, not unconstitutional. And last I checked, the court does not have the power to overturn things that are bad and stupid just by pretending they are unconstitutional.
This hurts our cause.
posted by Jerry on
Throbert makes a valid observation. The courts can toss DADT or Congress can do it. My preference is definitely for Congressional action, but no matter who does it, the UCMJ has to be revised. The current edition was done in 1951 and signed into law by Truman. All of those anti-gay regulations need to be scrubbed out and there is no doubt in my mind that a lot of the mossbacks in the Pentagon as well as a huge percentage of the chaplain’s corps will be trying to get their oar in to screw us as badly as possible.
posted by BobN on
the attentive observer should note that the government defendants in this case seemingly “took a dive”
The truly attentive observer would have noted that various commenters at the VC blew that “observation” out of the water.
posted by Jorge on
How any intelligent person could support a wingnut like Sharron Angel is really scary.
Harry Reid is a racist, an asshole, and someone who must be terminated from political office. His comments about Republican Hispanics are unforgivable and intolerable. A cryogenically frozen radioactive giant amoeba would be a better alternative to him.
Am truly glad you are out of campaign money.
I’ll have you know I spent more on her than I spent on the Homocon ticket. A lot more. You should tell Harry Reid to stop making stupid belittling and racist statements, or next time I’ll not only write a check, I’ll write on every single website urging other Hispanics to do the same.
That idiot thinks he can make statements about Hispanic Republicans and nothing will happen to him. The 44% of Hispanics who voted for Bush includes people who have education, attitude, and money. And they have much more political power and sophistication than the Log Cabin Republicans and GOProud combined.
posted by Houndentenor on
Only a minority of Americans oppose gays serving in the military at this point. I don’t know what the hold up is with Congress passing the repeal of DADT other than the Democrats are, as usual, acting like spineless cowards. If Republicans had majorities in both houses and the White House, would they dither around passing a bill they promised to pass and that has over 70% approval from the public?
posted by Jorge on
They might on a 60-40 issue. Depends on the issue. Immigration is the main one I can think of that could get some internal opposition.
But a 70-30 issue? Oh, wait, I know: pork-barrel spending.
posted by Bobby on
So does this mean that gay soldiers can finally come out? Does congress and the supreme court have to weight in first? I’m a little baffled by this ruling because this isn’t the first time the courts rule in our favor and then everything falls apart. Either way, gays shouldn’t be too quick in joining the military just now.