I don’t blame you if you got whiplash trying to follow this week’s fallout from U.S. District Judge Virginia Phillip issuing an injunction against the military’s Don’t Ask, Don’t Tell policy. As of press time, the military is back to booting out gay recruits. Why? The Obama administration persuaded the Ninth Circuit Court to issue a temporary stay (pending review) of the original injunction, allowing the policy to continue.
This isn’t just the latest disappointment from a president who campaigned as a “fierce advocate” of gay rights. The President’s misguided defense of DADT is offering a terrible lesson in civics. Obama insists that although he is personally opposed to the policy, it would be inappropriate for DADT to be undone by judicial fiat. He also refuses to unilaterally halt DADT through a stop-loss solution implemented by executive order; yet, as his 65 past executive orders prove, he has no objection to this type of solution in other cases. Although both judicial and executive approaches to ending DADT are legal and constitutional options, Obama insists that there is something unseemly about a remedy that doesn’t come from the people’s duly elected representatives.
Obama is parroting the main talking point of the anti-gay rights movement: judges are stepping out of line and improperly imposing their will on Americans by ruling in favor of gay rights ahead of any shift in public opinion. This is the rallying cry (and often the only argument) of the pro-Proposition 8 advocates. Opponents of the DADT injunction and of court decisions expanding gay rights generally can correctly object to these tactics as undemocratic. But it’s absurd to call them anti-American.
Although over 75 percent of Americans do support the repeal of DADT, that fact is not what legitimizes the decision of the courts. The Constitution was never intended to be interpreted by poll. Judges are required to ignore the will of the people when that will runs counter to the dictates of our Constitution. This allows the judiciary to leapfrog public opinion and end abusive laws, even before they are publicly recognized as abusive. Judicial intervention can even help direct public discourse toward recognition of current abuses. The judicial branch’s isolation from public opinion is a feature, not a bug.
Praising the anti-democratic nature of the judiciary is far from disapproving of democracy. The disconnect between judges and citizens does not guarantee correct action, but it does ensure that the excesses and weaknesses of the judicial branch are different than the foibles of either the legislative or executive branch.
The life terms of federal judges help to ensure their independence from popular passions but also creates the problem of geriatric judges, many of whom do not regularly use online media yet wind up responsible for deciding cases that will set the standards for expectations of privacy on the Internet. Meanwhile, congresspeople are responsive to the concerns of citizens, but as costs of campaigns have soared, they may be even more responsive to large corporate donors.
Every branch is free to fight each of the others, as Congress began to do after the Supreme Court decision to strike down a wide range of campaign finance laws in Citizens United v. Federal Election Commission. The fights ensure a certain level of small-c conservatism by slowing down the pace of change for controversial decisions. These types of fights are legitimate. But Obama is basing his resistance not in any opposition to DADT, but in a misunderstanding of jurisdiction with no grounding in constitutional law.
By perpetuating DADT and continuing to object to judicial solutions, Obama is placing himself on the wrong side of history — as well as the Constitution — when it comes to DADT and gay rights. If he doesn’t change his stance on gay rights and renounce his bad-as-Bush stance on detainee rights, torture and surveillance soon, I hope to see his administration as the target of many, sorely-needed injunctions from “activist” judges.
Leah Libresco is a senior in Jonathan Edwards College.