The Lesson of DADT Repeal For Gay Marriage
posted at 12:55 pm on December 19, 2010 by Legal Insurrection
We have returned to the pre-Clinton policy of leaving it up to the military as to whether and on what terms servicemen and servicewomen may openly acknowledge same sex sexual orientation.
Contrary to popular media hype, repeal of the law does not itself require the military to allow open service by gays:
(b) EFFECTIVE DATE.—The amendments made by subsection (f) shall take effect only on the date on which the last of the following occurs:
(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
There were a number of arguments in favor of (and against) repeal, but the one argument which carried zero weight with me was that prompt action was necessary to avoid having the change imposed through the courts.
How convenient this argument was considering that leaving such matters to popular will (whether by legislature or referendum) is the exact opposite of the strategy to date both as to DADT repeal and gay marriage. The prospects of a judicially imposed military policy were slight, notwithstanding trial court rulings to the contrary.
That is not to say that the legislative rather judicial than approach was wrong. My issue is that the overhyped threat of judicial action was used as an excuse by some not to take a position on the merits.
Repeal of DADT will have lasting societal impact and acceptance precisely because the legislative vote reflected changing societal views and public opinion, and will not be seen as having been forced on society by the sole unelected branch of government.
Not everything which is desired or good constitutes a constitutional right to be obtained through the courts.
When courts stretch to find constitutional grounds for political ends, the result is societal illegitimacy and lingering political turmoil. Just ask Roe v. Wade.
Democracy worked on DADT repeal, which is a lesson advocates of gay marriage would do well to learn.
Cross-posted with updates at Legal Insurrection Blog
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