While a retrograde Congress stalls about homosexuals in the military and the voters of California show how backward they are about gay marriage, federal district court judges in California are leading a progressive charge.
First, a U.S. judge ruled that Proposition 8, the infamous referendum banning gay and lesbian marriage, was unconstitutional. Now a U.S. district judge has declared the military’s don’t ask-don’t tell policy unconstitutional.
Both were wise decisions. But many court battles and delays lie ahead because of appeals. District courts never have the last word on constitutional issues.
Whatever the legal outcome, federal courts are proving once again that judicial review trumps the so-called “wisdom of the people” and vote-pandering politicians.
U.S. District Judge Virginia Phillips of Riverside, Calif., recently ruled that prohibition of openly gay service members violates their First and Fifth Amendment rights—the right to free speech and due process.
The policy doesn’t help military readiness, it hurts recruiting and requires discharge of service members who have critical skills and training, the judge declared.
Judge Phillips relied heavily on Lawrence v. Texas. In that 2003 decision the Supreme Court voided a state sodomy law as a violation of due process rights.
Justice Kennedy cited the rights associated with “autonomy of self that includes freedom of thought, belief, expression and intimate conduct.”
Erwin Chemerinsky, dean of the law school at the University of California, Irvine, noted significantly: “Federal judges are no longer persuaded that a moral condemnation of homosexuality justifies government discrimination.”
About 13,500 service members have been discharged under the policy, a terrible waste of money. It is training being fired. Yet we still hear nonsense from some brass that gays would undermine unit cohesion and the male bonding essential for survival in war.
In America myths die hard, arcane thinking often prevails and sometimes absurdity never ends.
Russ Feingold of Wisconsin, the only Senate progressive other than Bernie Sanders of Vermont, had it right when he said: “Discrimination has no place in American society. It makes no sense to continue denying talented Americans the chance to serve their country openly.”
This lack of openness aggravates. The New York Times describes how gay and lesbian West Point cadets have to resort to “code words, secret societies, covert meetings and fake identities” to avoid discharge.
“The most important thing I’ve learned here is how to be a good actor,” one gay cadet said. And Maj. Margaret Witt, fired by the Air Force for being lesbian, says: “You can’t be honest.”
Witt has been praised by colleagues and superiors. Friday she got even greater praise: a federal district court judge in Tacoma, Wash., ruled that she should be reinstated.
Even Joe Lieberman, the reprehensible conservative senator from Connecticut, said the policy should be abolished. “It’s un-American,” he said. “It’s inconsistent with our best values of equal opportunity. It’s who can get the job done, not what your private life is about.”
Meanwhile the reactionary Senate, disgraced by cretins like Senators Mitch McConnell of Kentucky, Lindsey Graham of South Carolina and Tom Coburn of Oklahoma, has again blocked progress.
Minority Republicans in the Senate thwarted the Obama administration’s effort to end the heinous policy. Democrats mustered just 56 votes.
The malapportioned and undemocratic Senate requires 60 votes to start debate. The nation’s much touted democracy is a fraud. Time and again the Senate gets a majority votes for bills but not the undemocratic super majority required to stop a filibuster.
The most recent case happened Thursday. The House of Representatives had handily passed a campaign finance bill and so did the Senate, 59-39. But the measure lost in the Senate for want of a 60th vote.
The GOP, with its usual lack of compassion, keeps in place an inhumane policy that much of the world’s armed forces have long abandoned. The Dutch army has allowed gays in the military since 1974 and the Israeli army since 1993.
Obstructionism by the Party of No means the nation is ungovernable. It will remain dysfunctional until the filibuster is abolished and democracy partially reinstated. (The Senate is packed with two senators from states with populations who represent “trees and acres,” not people.)
Earlier a U.S. district judge in Massachusetts struck down the Defense of Marriage Act passed by Congress in 1996. And just Thursday a Florida appellate court ruled unconstitutional a law preventing adoptions by gays and lesbians.
All four cases must be decided ultimately by higher courts. But the trends are progressive — and glowing.
Jake Highton teaches journalism at the University of Nevada, Reno. Contact him at firstname.lastname@example.org.