Resource page: Homosexual conduct in the military

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Friday, September 30, 2011

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9th Circuit judge: district court ‘sacrifice(d) the rule of law’ in striking down DADT

Appellate court sweeps away overreaching decision on ‘don’t ask, don’t tell,’ ADF filed brief on behalf of chaplain organizations
Friday, September 30, 2011

ADF attorney sound bite:  Daniel Blomberg

PASADENA, Calif. — The U.S. Court of Appeals for the 9th Circuit issued a unanimous ruling Thursday dismissing an activist group’s challenge to the military policy frequently referred to as “don’t ask, don’t tell” in the wake of its repeal by Congress. The 9th Circuit emphasized that “the district court’s judgment, injunction, opinions, orders, and factual findings--indeed, all of its past rulings” are “completely” vacated, meaning they have “no precedential, preclusive, or binding effect.” One of the judges expressed deep concern with the lower court’s activism.

In March, the Alliance Defense Fund filed a friend-of-the-court brief with the 9th Circuit that urged the court to dismiss the case. ADF attorneys filed the brief on behalf of several military chaplain organizations that represent more than 100 active-duty chaplains and millions of Christians within their faith groups.

“Unelected judges should rule in accord with the Constitution, not according to their own personal policy preferences, as one judge here has rightfully noted,” said ADF Litigation Staff Counsel Daniel Blomberg. “Every federal appellate court to consider precisely this issue has found no fundamental right to engage in homosexual conduct while employed in the military. Since the law was reasonably related to Congress’s goal of military cohesion, those courts always upheld the law as constitutional.”

Circuit Judge Diarmuid F. O’Scannlain agreed, carefully explaining in his concurring opinion in Log Cabin Republicans v. United States of America that the Supreme Court’s 2003 Lawrence v. Texas decision merely struck down with “marksman-like precision” a law criminalizing private homosexual behavior and did not establish “a general fundamental right to engage in homosexual conduct.”

True fundamental rights, O’Scannlain noted, must be “deeply rooted in our Nation’s history, legal traditions, and practices,” which was not the case here, where “every other circuit” to consider similar challenges to “don’t ask, don’t tell” had found it constitutional. O’Scannlain concluded, therefore, that the district court should have upheld the law as rationally related to Congress’s judgment that the law supports military cohesion and effectiveness.

O’Scannlain expressed particular concern that the district court’s actions ran perilously close to merely reflecting “the policy preferences of unelected judges.” He cautioned both the district court and other judges reviewing issues “where moral and personal passions run high”:

“When judges sacrifice the rule of law to find rights they favor,” he wrote, “I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them.”

  • Pronunciation guide: Blomberg (BLAHM’-burg)

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.