That's an order! Judge overturns don't ask, don't tell
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George Berkin/NJ Voices
A federal judge has overturned the military’s ban on openly gay troops, and it’s bad enough that a wise compromise policy is now likely ended.
But what’s worse is that social policy on a controversial issue is now being decided not by elected legislators, but by a single judge. Unfortunately, such judicial presumption has become increasingly common. But rule by judicial diktat does not bode well for the future of democracy.
If you think judges can “settle” controversial social policy, just take a look at the abortion issue. Instead of resolving the divide between pro-life and pro-choice, the 1973 Roe v. Wade ruling set in motion four decades of political and social strife – a conflict that has yet to be resolved.
And if this week’s ruling on “don’t ask, don’t tell” goes to the U.S. Supreme Court, as many expect, the nation’s top court stands poised to ignite yet another long-running battle between people holding conservative and liberal worldviews.
On Tuesday, U.S. District Judge Virginia Phillips, based in southern California, ordered an end to the current nationwide policy on gays in the military. The judge’s decree follows a separate ruling two months ago in which another federal judge, also in California, overturned a referendum in which voters decided to ban gay marriage in that state.
Until Tuesday, the policy on gays in the military, enacted 17 years ago between President Clinton and the Congress, was a compromise reached through the political process. It took a middle ground between those who favored allowing openly gay troops to continue serving and those who wanted to keep all homosexuals out of the armed forces. Under that middle ground, homosexual soldiers could serve as long as their sexual preference did not become known.
If Judge Phillips’ ruling stands, the longstanding consensus will be thrown out in favor of what uncompromising gay rights activists have long sought. That is, “openly” gay soldiers will be permitted to remain in the military.
The Justice Department has 60 days to file an appeal, which puts the Obama Administration in a “dilemma.” The Justice Department, by longstanding practice, files appeals to uphold Congressional policies. But President Obama has expressed his support for overturning “don’t ask, don’t tell.”
So President Obama will likely just let the clock run out. The judge has already done his work for him, and the president won’t have to spend any additional political capital to accomplish his objective.
Conservatives responded to the ruling by saying that democracy requires that elected officials, not judges, make social policy. “Once again, an activist federal judge is using the military to advance a liberal social agenda, disregarding the views of all four military service chiefs and the constitutional role of the Congress,” said Tony Perkins, president of the Family Research Council, a social policy think tank.
Unfortunately, it is very tempting for liberal judges, impatient with the stubbornness of less “progressive” elements of society, to set social policy for the military and the rest of us. But allowing judges to rule – instead of the people, through their duly elected representatives – is not good practice.
Granted, many legislators are lawyers and career politicians. But those elected officials ae still compelled, by their need to make a living, to listen to those who hire them – a broad coalition of citizens. The congressman’s job makes him take into account a wide range of viewpoints.
By contrast, judges typically cater to a very narrow perspective. Professionally, they have come to their worldview by listening to professors of “elite” institutions, who are overwhelmingly liberal Democrats. Every member of the current U.S. Supreme Court, for example, is a graduate of an Ivy League law school.
You can be sure that Virginia Phillips, the judge of yesterday’s ruling, did not come by her prescription for an effective military by long service in the armed forces. I suspect she did not talk with soldiers about what it would be like if openly gay soldiers share communal showers with heterosexual soldiers. Rather, Judge Phillips no doubt formed her judicial opinion among her “progressive” friends, where gay “rights” is fashionable and “broad-minded.”
Perhaps surprisingly, for all the “progressive” pretentions of many liberal judges, having social policy decided from the bench also tends to eventually make the law out-of-date.
To take our example from the abortion controversy, Roe v Wade was based on an understanding of fetus “viability” that dates from the early 1970s. But that science is now outdated, as recent advances have made the fetus viable at an earlier stage of development. Still, Roe follows the old ways.
I suspect our understanding of combat will likewise advance. Military experts will want to apply, perhaps, the latest psychological insights. But the experts’ hands will be tied because a judge has long ago decided that she knows best.
Beyond that, when judges decide important social issues, the nation gradually moves from genuine democracy toward rule by a small unelected elite. The French and Russian revolutions were carried out in big steps. The “revolution” toward rule by judges has taken place in small steps.
The U.S. Supreme Court decided early on that it has the right to rule on laws made by Congress, but it used that power only sparingly for many years. But in recent decades, all sorts of federal courts have made it their business to “rule” on every sort of social policy.
This continued expansion of rule by judges almost guarantees that social strife will continue. In the present example, I expect rank-and-file soldiers to accept whatever rule is imposed on them, if they expect to continue in the military. The top brass will also comply, because the military is under civilian control, as it should be in a constitutional republic.
On an individual level, some soldiers will accept the change. But others, I expect, will be secretly resentful. Perhaps the discontent that a judge has forever changed the military will disappear over time. But perhaps the situation will come to resemble the abortion controversy, as one side “prevailed” not through expert military leadership or political compromise, but though the whims of an agenda-driven judge.
Frankly, I have no idea how to slow down this relentless march by the bench into every corner of life. The fact that judges make social policy over the heads of elected officials has become so common that it seems nearly impossible to change course.
Over time, elected officials may let judges make more and more of the important decisions. Judges will decide things that were once the people’s business.
When that happens, tyranny will have arrived.
