Here we go again.
While I believe DADT should have been overturned years ago, I don’t believe it is a court’s role to determine military policy.
Via Servicemembers United we learn that “U.S. District Court Judge Virginia A. Phillips has ruled that the 17-year old “Don’t Ask, Don’t Tell” law is unconstitutional. Judge Phillips also indicated that she will issue a permanent injunction barring the Department of Defense from carrying out further discharges.”
Let’s just have Congress overturn this law to avoid a prolonged legal battle.
The opinion is here. Given the Jewish New Year and other obligations, I doubt I’ll have time to get to it right away. (From a quick scan of the opinion, my sense is the judge relies less on the actual text of the constitution and more on twisting past rulings to yield the result she wants.)
Short summary of my opinion. This is the result I want, but from the wrong branch of government.
UPDATE: Have now had the chance to scan some other posts/articles on the web. Allahpundit thinks this will “fuel this fall’s populist mojo“:
This one isn’t quite as explosive as the Prop 8 ruling, partly because a heavy majority(including a majority of Republicans) already supports letting people who are openly gay serve and partly because the policy’s already on its way out. But if you’re looking for a little extra something to fuel this fall’s populist mojo, some legalistic jujitsu by an unelected judge against a longstanding national policy will do the trick nicely.
From the LA Times, we learn that Judge
. . .Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.
Now, I believe she’s right here, but this is not an issue for her to resolve. The Constitution makes clear that the executive and legislative branch set military policy and we should be wary of judges interfering. Here, while I like the fact that a silly and counterproductive policy has been ruled invalid, I am concerned about the precedent it sets, practically inviting disgruntled service members to sue the government if they don’t like a particular military policy.
That said, it could spur the Senate to act and repeal this thing the right way — through the legislative process:
“It could well be the catalyst that is needed to drop some of the opposition we’ve seen in the Senate” to holding a vote, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group that has been lobbying Congress to end “don’t ask, don’t tell.”
“This should not linger in the courts. It should be resolved by Congress, this year,” Sarvis said.
UP-UPDATE: Patterico agrees, “As with Prop. 8, I oppose the policy but can’t imagine the decision is legally correct.”