Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.

Washington Post Columnist "Angry" With Injunction Banning DADT

Washington Post columnist Jonathan Capehart is "angry" with federal judge Victoria Phillips's order that enjoins the military from enforcing Don't Ask, Don't Tell. Although Capehart agrees with the "fairness" of the ruling, he believes that Congress should repeal the statute:

[T]his ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.

It is not entirely clear whether Capehart is simply angry that Congress "failed to act" or whether he believes that the court should have waited for Congress to act. If Capehart is angry with Congress alone, then I agree with his position.

If Capehart, however, believes that the court should have waited for Congress to act, then I must dissent from this position. People have made similar arguments in other contexts. For example, conservatives, including members of the Supreme Court, have argued that the Supreme Court should have declined to find a constitutional right to terminate a pregnancy in Roe v. Wade. At the time, conservatives argued that the democratic process -- not courts -- should resolve the matter. Similarly, conservatives have criticized court rulings that invalidate laws banning same-sex marriage, and they have expressed a preference for legislative action instead.

Judge Phillips, however, did not "repeal" DADT. Instead, she enforced the Constitution. Generally, judges should not wait for lawmakers to act before they remedy violations of the law. This argument is even more compelling when the same legislature (Congress) enacted the unconstitutional law in the first place. I commend the judge's ruling -- even though I think parts of it are subject to criticism, if not reversal. Congress has delayed justice in this area far too long.