Wednesday, October 13, 2010

Dodging the non-Draft

     There was news yesterday that yet another judge has found yet another right in the Constitution.  U.S. District Judge Virginia Phillips of the Central District of California proclaimed that the 219-year-old language of equal protection found in the Fifth Amendment actually means there is a right for homosexuals to serve openly in the U.S. military.  Well, it was bound to happen.  The creativity of the activist judiciary is apparently without limit.  Besides the old story of David Copperfield judges pulling rabbit opinions out of Constitutional hats, two points remain to be made.  First, there is no draft.  Second, heterosexual service members apparently have no claim to equal protection.

     One comment heard often in the debate on gays in the military is that forbidding homosexuals from serving openly “forces” them to live a lie.  But of course no one, not anyone, anywhere, can be compelled to serve in the U.S. military.  We have an all-volunteer force.  No one has been drafted into military service since 1973.  What’s more, could anyone have been in doubt about the military policy on homosexuals?  Did the services keep it a secret?  Did Congress hide the ball?  Isn’t it true that every single homosexual who joined the service did so knowing he or she would not be able to live an openly homosexual lifestyle?  If they wanted to live openly gay, why did they sign up?

     The other point is this:  Imagine that a group of heterosexual male employees at a Fortune 500 company filed a petition demanding the “right” to shower with women employees in the company locker room.  If they somehow got the company to accede to their demand, the women would immediately file a sexual harassment lawsuit…and win.  No court in the land would condone forcing women to accept straight guys in their showers; any court in the land would fine the company for allowing such harassment.  But how is that different from making straight soldiers and sailors accept gays aboard ship or in the barracks?  Aren’t there showers there, too?  What is the distinction in logic between the legitimate sexual harassment suit of a woman forced to shower with a straight man, and a complaint by a straight soldier who is forced to shower with a homosexual?

     Opposition to open service by homosexuals remains strong among military personnel.  These are the people who have volunteered to defend the rest of us.  More than any other group, they deserve a certain deference.  Now, a judge who has never served under arms is trying to force her own moral values on those who do.  (So much for claims that only Conservatives attempt to impose their values on others.)

     Under a neutral reading of the Constitution, there is no right of homosexuals to serve in the military.  In fact, no one has a right to serve in the military.  The military does not exist to provide opportunities for personal fulfillment to everyone who wishes to join.  The armed forces exist for one purpose:  national defense.  Some few among us are willing to answer the call of national defense, and they serve, often, in conditions the civilian population cannot imagine and would not accept.  The majority of these stoic patriots remains understandably ill at ease in intimately close quarters with people who bring with them an inevitable sexual tension.  Over time, that opposition has begun to decline.  If it ever disappears, well, then the services could reasonably allow gays to serve openly.  But until such time, forcing the bravest among us to conform to the moral views of activist judges ought to be unthinkable.

     Judge Phillips could have waited a few months and let the lame duck Congress do her work for her.  At least Congress represents the will of the majority.  Even so, would any on the Left have leaped to defend the minority rights of those in service?  Men and women actually serving in the armed forces are a tiny minority of the population.  They are an example of a minority by choice, by conscience.  We recognize the rights of religious minorities, although religion, too, is ultimately a matter of choice and conscience.  How curious that the wishes of service members are immaterial.  How curious that they are undeserving of equal protection.


  1. Tikno, you are ever the compassionate one! I share your compassion for people who cannot change their orientation. On the other hand, I also have compassion for the people who serve in the military. I understand why they don't want to take showers with people who are attracted to others of the same sex. Just like the (straight) woman who does not want to shower with a (straight) man.

    It is important to remember that the American law actually does not prohibit homosexuals from serving. It only prohibits homosexual conduct (and saying you are gay is a "verbal act," so that has to count as conduct, too). Anyway, the law is not aimed at sexual orientation. Instead, it is aimed at behavior, and this distinction is why the issue of gays in the military is different from racial integration of the services back in the 1940s.

    Actually, sexual conduct is sometimes rather changeable. Everyone knows that normally heterosexual men who are confined in prison for long periods of time can become behaviorally gay. When they get back out of jail, they go back to having women partners. The same "only gay in jail" pattern seems to be true for women prisoners, too. So, for some at least, sexual behavior is not as "hard-wired" as some people claim.

    Anyway, the military services in the U.S. today announced they will follow the judge's injunction, pending a stay order from the Ninth Circuit. That's really the aspect that bothers me the most: amendment of the Constitution by a judge.

  2. What ever happened to the time-honored tradition that sexual orientation is a private matter and sex belongs in the bedroom? I do not want to be in any evironment where people's intimate actions and preferences are (pardon the expression) in my face. Making a public issue of that -- including attaching rights to it -- offends me. If someone is gay, so be it. Quietly.

  3. How did this judge justify legal standing? Isn't that a requirement for making a constitutional right (or wording) apply to a specific group? How does this group qualify as a specially protected group, in the judge's opinion?