by Jack Minor
The government has announced it will appeal a federal appeals court ruling that, regardless of how it will affect troop readiness, the military must immediately allow “gay” soldiers to serve.
During the lame duck session, Congress repealed a policy dating to the Revolutionary War that prohibited “gays” from joining the military.
The law required the individual services to implement plans to prepare troops for the integration of openly “gay” troops. The certification would take place 60 days after the Chairman of the Joint Chiefs of Staff, President Obama and the Secretary of Defense certify that the repeal would not harm military readiness, unit cohesion, recruiting and retention.
The 9th Circuit Court of Appeals said that’s not good enough, and has ordered the the ban to be lifted immediately. The case was filed by the Log Cabin Republicans, a “gay” group, against the Department of Justice. The case was first filed prior to the law repealing the ban on “gays” serving in the military, and last year a lower court ordered the ban lifted. The appeals court’s reasoning was that since the Obama administration has taken the position that it is unconstitutional to treat “gays” and lesbians differently, the ban must end now.
Last week, the court issued an order requiring the U.S. government to clearly state if it intends to continue to defend the policy in court. DOJ attorneys have claimed they will defend the policy, just as they do for any other law. The government has announced they will appeal the court’s decision.
At the time congress passed the repeal of “Don’t Ask Don’t Tell,” they were reassured that lifting the ban would not result in “gay” and lesbian soldiers qualifyinging for marriage benefits, as the Defense of Marriage Act was still the law of the land. DOMA, which was passed with overwhelming majorities and signed by Bill Clinton, stated that marriage was between a man and a woman.
However, in what could be an end run around that reassurance, the Justice Department filed a brief in another case, supporting federal court employee, Karen Golisnski’s rights to equal benefits for her “wife.”
The filing argues that Golinski’s case should not be dismissed because “Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 (DOMA), unconstitutionally discriminates.”
The filing was a response to lawyers with the House Bipartisan Legal Advisory Group, who asked the federal court in San Francisco to dismiss the case. The filing to dismiss was made by attorney Paul Clement. The Gazette previously reported that Clement was hired by Congress to defend DOMA after homosexual activists forced the previous law firm to withdraw from the case. Clement is a former solicitor general who has argued 53 cases before the Supreme Court.
Congress was forced to defend DOMA, after the justice department announced earlier this year it would no longer defend the law in court. However, the filing, made by DOJ attorney, Christopher Hall, went far beyond refusing to defend the law. Hall’s filing actually argued against DOMA. In the filing the DOJ argues that any decision regarding the law should be subject to “heightened scrutiny”, meaning the government must show that DOMA is substantially related to an important government function.
Hall acknowledged that “the Supreme Court has yet to rule on the appropriate level of heightened scrutiny for classifications based on sexual orientation.” The justice department admits there are several court precedents for rejecting the heightened scrutiny argument for “gays”, but says all of them are wrong. The 9th circuit cited the Golinski brief as a footnote, in their decision ordering the military to immediately end the ban on “gays” serving openly.
Elaine Donnelly, with the Center For Military Readiness, said the Golinski brief by the justice department could end up being a budget buster for the military budget. “When Congress passed the DADT repeal, they were told by the administration it would not enable same sex soldiers to get the same benefits as married couples since DOMA was the law of the land.” She went on to say the filing in the Golinski and 9th circuit cases shows that all of the assurances given to Congress, regarding same sex benefits not applying to the military was a deliberate deception.
Regarding the 9th circuit decision, Donnelly said the Commander in Chief should not be surrendering power to a federal judge. “We cannot have federal judges making policy for the military.” She continued, “Deference of the judiciary to other branches of the government regarding decisions involving the military is a long standing principal, and this president seems to be throwing it all overboard with little respect for its value.”
Currently, the government’s response to the court has little to do with who should have the authority to make military policy, and has instead focused simply on procedural grounds. The administration’s response has basically been one of saying the court should stay the decision since they are currently in the process of instituting the repeal.
Donnelly said the problem with the 9th circuit decision is, there is currently no one to defend the current law. “That’s what the court is telling the Obama administration with their order, asking them ‘are you going to defend this law or not?’”
”The administration misused the Pentagon when they lied about the amount of support among service members for repealing DADT and now they are misusing the courts at the expense of our military.”
Donnelly described what is happening as, “Obama taking control of the LGBT military. It’s his military; he owns it now. It is also headed towards being a Cambridge military which could blow a hole in the defense budget.”
The Cambridge reference refers to a recent decision by Cambridge, Mass., to pay more money to same sex couples than straight couples. The increase in pay is to help “gay” and lesbian employees offset the cost of having a partner on their health insurance.