The "Expert" on the Bench

A federal district judge in California has issued a nationwide injunction ending enforcement of the "Don't Ask, Don't Tell" policy, effectively ending the military's long-time ban on openly gay troops.

In her landmark ruling, Judge Virginia Phillips also ordered the Pentagon to halt all discharge proceedings and investigations prompted by the policy. Phillips is the same judge who declared the law unconstitutional earlier this summer.

As the Associated Press reports, Judge Phillips rejected government claims that lifting the ban could adversely impact military operations:

Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war.

They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.

The government has 60 days to appeal the ruling, but there's speculation in legal circles that the Pentagon and Justice Department will let the decision stand. After all, Judge Phillips has accomplished something that President Obama and Defense Secretary Robert Gates couldn't do--ending the decades-long ban on gays serving openly in the military. It's no secret that both men favor ending the ban and if conservatives object, they can simply hide behind the robe of Judge Phillips. Ditto for members of the U.S. Senate, which tabled the issue during its most recent session.

From our perspective, there is one disturbing aspect in today's decision. In her decision, Judge Phillips (a Clinton appointee) established herself as something of an expert on matters essential to military conduct, discipline and operations. Barring gays hurts recruiting she said(by rejecting qualified applicants), and it depletes experience in the ranks by discharging service members with critical skills. We were a bit surprised she didn't trot out those statistics about the number of gay Arabic and Farsi linguists who have been booted from the service in recent years.

As you might have guessed, Judge Phillips never spent a day in uniform. So, the government's meager arguments about order, discipline and operations clearly didn't resonate with her. On the other hand, the judge paid a great deal of attention to the 2003 Supreme Court ruling in the Lawrence v. Texas case, which ruled that a state sodomy law violated certain due process rights, including "certain intimate conduct," i.e., gay and lesbian relationships.

If Judge Phillips had more than a casual knowledge of military matters, she would realize that the armed services have long restricted certain forms of conduct among their members--and denied rights the rest of us take for granted. Free speech? Forget about it. Troops publicly criticize their commanders--or national leaders--at their own peril. The military justice system also grants considerable leeway to commanders in determining if (and how) service members may be punished, and their ability to influence courts-martials has long been criticized by civil rights advocates.

And that's just the tip of the iceberg. A DUI conviction that means a weekend in jail, a stiff fine and a suspended driver's license for a civilian is a career-killer for military members. And possession of a small amount of marijuana (a misdemeanor in many locations) can result in a long jail stretch for armed forces personnel--and an end to their careers in uniform.

If such rules seem unfairly harsh, too bad. The military, by virtue of its mission, demands the highest standards of conduct from its members. In the past, open homosexual behavior has been viewed as inconsistent with required levels of conduct and discipline. That standard was changing even before Judge Phillips' ruling, but the end of DADT puts that evolution on a fast-track.

And oddly enough, today's decision may impact military operations and discipline, but not in th way that Judge Phillips intended. A recent Military Times survey found that more than 20% of military members would consider leaving the service, if DADT was repealed. If that happens, it would create a shortage of trained personnel far greater than the number of gays and lesbians discharged over the past 17 years, or those denied entry into the U.S. military because of their sexual orientation.

It would be convenient to cast military opponents of today's rulings as nothing more than bigots and homophobes. But much of that opposition is rooted in the values of traditional Americans--largely from the south and other rural areas--the same folks who raise their right hand and pledge to defend the Constitution as members of the U.S. military.

There is also opposition among some senior officers, most notably Marine Corps Commandant James Conway. Testifying before Congress earlier this year, General Conway said he thinks "the current policy works." He also voiced support for a one-year study on the impact of repealing DADT, an effort that was effectively shelved with today's ruling.

Again, there's a knee-jerk reflex to castigate General Conway as nothing more than a philistine. But Conway has devoted 40 years of service to this country, in war and peace. His concerns about a change in policy are rooted in its possible impact on Marine small unit operations--the heart and soul of the Corps.

To be sure, the days of DADT were probably numbered. But the military deserved a chance to assess the coming change--and its impact--before implementation. Instead, a self-appointed military expert on the federal bench has decided there's no time for such assessments. DADT must end now, Judge Phillips has decided, and the military can figure out how to make it work.

About what you'd expect from an activist judge, legislating from her lifetime seat on the federal bench. Call it another reminder as to why elections matter, and the consequences of judiciary appointment powers are felt long after a president leaves the Oval Office.