Constitutionally Correct

On Oct. 12, U.S. District Judge Virginia A. Phillips issued a landmark injunction, ordering the Pentagon to stop enforcing the “Don’t Ask, Don’t Tell” policy whereby gay members of the military who display their sexual orientation are discharged. Phillip’s ruling held that the policy “irreparably injures service members by infringing their fundamental rights.” Gay rights groups have applauded the decision, the Department of Justice has argued that this was a matter for the Congress, and DADT proponents have argued the policy itself is necessary to protect military morale and unit cohesion in wartime. Indeed, the latter two arguments are misguided. Judge Phillips acted rightly in striking down a law that violates Constitutional protections.

This ruling was a clear exercise of proper judicial power. Federal judges are obligated to strike down unconstitutional laws, and Judge Phillips correctly observed that DADT violates the rights to due process, freedom of speech, and petition. Furthermore, it is an important function of the judiciary to concentrate its attention on laws that target minorities who cannot protect themselves through the democratic process; the court serves as an important balance against potential tyranny of the majority. The most admirable parts of American judicial history have been when the courts stepped in to do just that—ruling legalized prejudice not only immoral, but also unconstitutional.

Yet this injunction does not excuse the administration or Congress for their actions regarding DADT. Although it is the judiciary’s responsibility to overturn unconstitutional laws, both the Obama administration and Congress should have done far more to stop DADT before the courts had to come into play. Congress could and should have simply repealed DADT long ago.

Likewise, this injunction gives President Barack H. Obama the opportunity to deliver a long overdue statement on DADT, living up to the commitment he made during his campaign of repealing the law. At this time, the President can also take real action by refusing to appeal Phillips’ decision. The President’s commitment to the legislative process is admirable, but he is not compelled to defend an unconstitutional law.

Secretary of Defense Robert M. Gates has also wrongfully delayed the process by insisting that a study must be issued before action can be taken on DADT. We understand Gates’s concern about implementing this repeal and his reasons for issuing a study in advance, but persuasive evidence submitted during the trial showed that militaries that allow gay members to serve do not suffer from any of the commonly asserted problems, and there is no reason to suppose the American military would either. Even more importantly, DADT is a moral issue and not something that should be decided based on a study. In this sense, Gates’s concern for the armed forces is admirable but misplaced. He should concern himself instead with doing the right thing, as quickly as possible: supporting the repeal of DADT. The time for delay, for studies, and for unsubstantiated statements of qualified repeal is over. It is time for all of our nation’s government officials, following Judge Phillips’ example, to oppose this immoral and unconstitutional policy, and end it once and for all.