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Logcabin Republicans v USA

The Logcabin Republicans recently sued the US Government in an attempt to overturn the Don’t Ask, Don’t Tell policy. Last month, Judge Virginia Phillips of the Federal District Court for Central California in San Diego ordered that Alexander Nicholson be reinstated to the military and ruled that the Don’t Ask, Don’t Tell policy was unconstitutional. I was vaguely aware that this case had passed, but didn’t mention it as I had assumed it would be appealed (and probably due to extreme business). Phillips J. has now ruled that this applies not only to Mr Nicholson, but to the military generally.

Now, normally, I would be very hesitant to endorse a judicial ruling that attempts to catalyse societal change through judicial intervention. However, I would strongly argue that, on the facts, this is not a case of judicial activism. Firstly, it is far more common for US Courts to make assessments of broad-ranging facts, including sociological data than Australian courts, or courts elsewhere in the Commonwealth. (See Brandeis brief). Therefore, it is not surprising that Phillips J. found that, on the facts, there was no persuasive reason to think that having gay servicemen or women in a unit would undermine troop morale or cohesiveness.

Secondly, we have to be far more tolerant of judicial activism in American courts where they have a Bill of Rights and where their very history is shaped by major court decisions. Brown v Board of Education desegregated America. Loving v Virginia legalised interracial marriage. The question is not whether the case intended to change society, because the results of constitutional cases under a Bill of Rights often would. The question is whether the interpretation of the Constitution advanced in that case departed from the interpretation advanced in prior cases. As I have argued, the Equal Protection clause extends to homosexuals and if, on the facts, it is shown that there is no undermining of troop morale, there can be no justification for Don’t Ask, Don’t Tell.

What I find particularly heartening about this case is the support it has garnered. Unlike the highly polarising case of gay marriage, repealing Don’t Ask, Don’t Tell has earned significant support from both sides of politics. Dick Cheney has endorsed it. The Chairman of the Joint Chiefs and other senior military personnel have endorsed it. The President has endorsed it. (Given, by the way, that strong military support it is unsurprising that no evidence could be found that DADT undermined troop morale). In fact, a majority of the American people support overturning DADT.

The only question I have is whether Judge Phillips was right in phrasing her second injunction so inflexibly. Yes, DADT should be repealed, but should it be done with immediate force? The newspapers are all reporting that the military believes it could endanger troops overseas in a time of war to have such a precipitous withdrawal of policy. They said the same thing about a precipitous withdrawal of troops from Iraq – and that seems to have gone just swimmingly.

But more seriously, I can’t have any facts to substantiate this claim. I even searched on Fox News’ website. Nor can I think of any reason why failing to fire people from their jobs for a reason completely unrelated to their job performance could possibly endanger lives – not to mention why it would take time to de-implement it. Send out a missive. Stop firing people. Derrr.

PS: I re-read this post before I uploaded it and realised that it’s really badly written. However, on balance, I thought it was better to post it than the throw it away. Enjoy.

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