On Tuesday, a federal judge ordered the Pentagon to immediately stop enforcing its “don’t ask, don’t tell” policy.
As one legal scholar put it, the policy has become a “giant game of hot potato.” That may be true, but it’s a potato that the courts have no business grabbing.
The decision was handed down by Judge Phillips in California. She ruled that the policy of the Pentagon violated gay and lesbian service members’ rights to due process, freedom of speech and petitioning the government for redress of grievances.
The Department of Justice now has sixty days to file an appeal. Inasmuch as the president has said that he prefers that the policy be repealed by an act of Congress, rather than by executive order or the courts, logic would suggest that an appeal is forthcoming.
The expectation of an appeal and possible reversal has gay-rights groups warning gay service men and women not to disclose their sexual orientation just yet.
This one time, I hope these groups are right. Reasonable people can and do disagree on the merits of “don’t ask, don’t tell.” What is unreasonable is that a decision this important should be decided by a single unelected judge in Riverside, California.
The courts have historically shown great deference to the executive and legislative branches on matters concerning national security. For example, during the Vietnam War, the courts rightly declined to intervene in that most-divisive debate.
Within the last few months, two federal judges have effectively overruled the President, Pentagon and Congress and substituted their policy preferences for those of our accountable leaders. They did so despite knowing that our leaders were working on the issues at that very moment.
These decisions are part of a pattern of growing disdain for the democratic process, the most notorious example being the ruling that overturned California’s ban on so-called same-sex marriage.
Courts are functioning as a kind of super-legislature that substitutes their “enlightened” judgment for the “ignorant” beliefs of the people. They are especially impatient with the kind of compromises, such as “don’t ask, don’t tell,” that pluralistic societies craft while they work through the issues. Just as Roe v. Wade short-circuited the debate over abortion, the courts want to short-circuit the debate over homosexuality and public life.
I wouldn’t count on the appeals process to set things right. I fear that a more-likely outcome is that these district court decisions will cause the Supreme Court to say that the moral consensus on homosexuality has changed. How I hope and pray that I am wrong, and that the Supreme Court will decide that the courts have no business pre-empting the debate over the great moral issues of our time.
This is why the Manhattan Declaration is so crucial. The Supreme Court needs to see that this debate is still going on and raging. And this Declaration draws a bright line between what is Caesar’s and what is God’s.
If you haven’t read the Manhattan Declaration already, please do so, and add your signature and pass it on to others—your friends—and join the nearly half a million people who have already answered its call to Christian conscience. The prospect of civil disobedience—always the last resort for the Christian—is more pressing today than ever, as out-of-control courts trample on our democratic rights. Take your stand.