Later last night (for us on the East Coast), a federal judge in California ruled “don’t ask, don’t tell” unconstitutional, though the court is waiting for proposals on a remedy.
The gay-rights movement has had a remarkable string of court wins lately. Earlier this year, federal courts also struck down the Defense of Marriage Act (DOMA) -- the 1996 law prohibiting the federal government from recognizing same-sex marriages performed in the states -- as well as California’s own gay-marriage ban. The caveat with all these cases, however, is that they were won in trial-level courts; they await further review from the Circuit and Supreme Courts.
Still, as The New York Times pointed out, it’s worth noting that courts across the country are finding it increasingly difficult to justify discriminating against gay people -- the central issue in all of these cases. What’s remarkable is that it wasn’t that long ago that courts routinely found anti-gay discrimination fairly easy to justify. If you read court opinions on gay-rights challenges like Bowers v. Harwick, which upheld a Georgia anti-sodomy law just two decades ago, you’ll find them short on reasoning and full of tautologies:
Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. ... It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots.
But as anti-gay prejudice becomes less and less of a shared cultural assumption -- less “obvious” -- justices have been left with the bare reasoning behind these laws. And they look pretty silly. In this case, the Justice Department’s defense had very little to do with gay people at all. Basically, it argued that straight service members would be so uncomfortable fighting alongside a gay person that it would ruin troop morale and unit cohesion -- and therefore affect our “military readiness.”
Sure, this paints gay people like they’re some sort of cancer, but it’s really quite insulting to straight service members. The implicit assumption is that highly trained and disciplined troops who fight and die -- and sacrifice time with their families and the comforts of home to go abroad -- are incapable of overcoming prejudices they may have inherited, even for the good of their country. I find it hard to believe that soldiers' commitment to the armed forces is that flimsy, and it's disrespectful to think otherwise.
-- Gabriel Arana
