Libresco: The wrong side of history

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.


  • silliwin01

    If gays are allowed into the military and given permission to marry (or whatever is deemed equal legal treatment) will they be forced to utilize the facilities of the opposite sex while in public? I have never been comfortable with the idea of going to the local swimming pool or my hometown athletic club and having my finely sculpted legs and posterior being checked out by a gay guy. I think that advocates of gay rights should, in the interests of fairness and avoiding hypocrisy, ensure that such provisions are added to any pro-gay bills they champion for. After all, if society is recognizing their union with the same sex as something as normal as hetereosexual relations, shouldn’t the same social norm of seperating ostensibly attracted parties (male and female) into different bathrooms or changing rooms be applied to them as well?

  • jnewsham


  • FreddyHoneychurch

    Will gays then have to build their own roads like libertarians? Can anyone answer me that?!!! And, I mean, when I think about this nation’s proud army out there in Iraq doing its all to direct private mercenary contractors to do stuff, I really only want the thought of men and women having sex, but not on the battlefield, because women shouldn’t be there.

  • pablum

    Really, the notion of gays serving in the military can be believably understood as having nothing to do with the gay rights movement, although the latter is appropriately advocating for it. It has to do with common decency. It’s plausible that thousands of homosexuals over the past 200 years have already paid the ultimate sacrifice on the battlefield. Continuing to dishonor them by administering a sexual litmus test is reprehensible — and it also makes no sense, considering that some of the best armed forces in the world (Britain’s, to name one) already let gays serve in the military.

  • FreddyHoneychurch

    Alexander the Great was gay, and he was awesome at military. How do Republicans account for that little factoid?

  • davenport12

    “sorely-needed injunctions from “activist” judges.”

    I think that this line is key. Obama is a pragmatist who promised to lead by consensus. I’m pretty sure that he personally supports the repeal of DADT – he isn’t an anti-gay troglodyte. This temporary stay may seem too cautious for liberals, but it is part of Obama’s strategy, and DADT will eventually be repealed.

  • pablum

    The DOJ is going to challenge any judicial rejection of executive policy. That’s partly its role. The question is not whether it will, but *how* it will; in this case, probably half-heartedly. DADT won’t last another year.

  • silliwin01

    jnewsham, I am very sorry you are a hypocrite. I recommend taking many of the quality humanities courses here at Yale to cure your affliction.

  • RexMottram08

    Continue DADT.

    Remove women from combat zones.

    2 sensible policies for our military.

  • pablum


    Take a look at this map:


    (Countries in blue allow gays to serve. Countries in red don’t.)

    It seems like you enjoy strange company. Note that the IDF, probably one of the most effective and hardened military forces in the world, allows both gays and women to serve. In this case, your bigotry is a threat to national security and an offense to all of the gays and women who have already risked or sacrificed their lives for your country. You give new meaning to the expression “chickenhawk.”

    [1]: “Map”

  • Undergrad

    I agree wholeheartedly that the judicial system is not beholden to the will of the people, and I think that the judicial system may be one of the most important barriers against the ignorant, ideological extremism which is on the rise in the Tea Party (for example, by upholding the constitutionality of health care reform). But Obama’s justifications for holding out on DADT are much different from those of Prop 8 supporters–the main reason is that he wants to give the military time to complete its study of how to implement a repeal of DADT. This seems a reasonable compromise, given the importance of the military to our national security and the fact that we are still fighting two wars. I’m disappointed in how many liberals blast Republicans for refusing to compromise on anything, but then decry compromise whenever Democrats make minor concessions.

  • RexMottram08


    What is that supposed to prove? We should get along to get along? Follow the crowd? Cave to peer pressure? Worry about what Russia thinks?

  • Summer


    > You give new meaning to the expression “chickenhawk.”

    In 2008, 60% of active military members also opposed ending DADT. Or are they all “chickenhawks” as well?

    Also, use of the word “chickenhawk” should be reserved for those who’ve actually served and earned the right to use that insult.

  • The Anti-Yale

    This entire argument is such a tangled web of hypocrisy. How can a country punish people for their most private thoughts? It seems so invasive and voyeuristic and unquantifiable.

    If 49.5 % of someone’s ideation is dominated by same gender fantasies, does that missing six tenths of one percent (.6%) make them eligible for the military?

    And if the ideation were 50.1% does that .1% make them ineligible?

    This kind of busybody hypothetical ***surveillance of the soul*** is a highly structured witch-hunt.