Don't ask, I'll tell you!

Federal Judge Virginia Phillips of the Central district of California yesterday switched the official US policy in the military from "don't ask, don't tell" to "don't ask, I's tell you". Phillips ruled that the don't ask don't tell policy is unconstitutional. That policy was enacted by congress and signed into law by president Clinton after a careful political debate and assessment as to how it would affect the armed forces. Now, with a decision the judge has announced that the decision of the Congress and the President will be overturned.

This ruling presents two rather interesting issues. First, I will be curious to see if the Department of Justice appeals from the ruling. President Obama has wanted to overturn this policy for a while but he has been thwarted by those in Congress who wanted that there first be a study of the effects this would have on the military. simply by not filing an appeal, Obama can have the law overturned and can blame the whole thing on a judge. He may well choose just that.

Second, the idea that a policy against gays in the military could be unconstitutional is extremely strange. Under normal contitutional jurisprudence, congress can make laws that treat different classes differently so long as there is a rational basis for the distinction, provided that the class is not one of the so-called "suspect classifications" like race or religion. Homosexuality has never been a suspect classification under any previous case. And clearly, congress could have concluded that straight soldiers would be uncomfortable having to live with openly gay comrades, so there is a rational basis for the policy. As a result, it seems clearly constitutional to me. Thus, even though I think that the policy is flawed and should be repealed, I think this judge's decision is clearly erroneous.

If Obama does not appeal this decision, there will be yet another reason for conservatives to come to the polls in November. Anger over the decision and a desire to rid the judiciary of activist judges will do a lot more for the republicans than happiness in the gay community will do for the Democrats. Strangely, this may be a big loss for the Obamacrats.