Should Soldiers Be Given Veto Power Against Equality?

A measure to end the Don’t Ask Don’t Tell policy, offered in the form of an amendment to a defense appropriations bill, is supposed to be voted on some time today in the U.S. Senate. Don’t Ask Don’t Tell requires the U.S. military to kick soldiers out of the military, regardless of the quality of their service, whenever they are found to have engaged in homosexual activity, even on their own private time. The Senate vote on this policy has not yet taken place, but plenty of debate on the issue has already come to pass.

Yesterday, Senator Lindsey Graham spoke in opposition to the repeal of Don’t Ask Don’t Tell. He said,

“The Defense authorization bill is coming to the Senate floor tomorrow, and we have a don’t ask, don’t tell policy change within the bill that basically says we are going to change the law that would get rid of don’t ask, don’t tell; a policy that has worked very well, that we would receive input from the military, and we are going to change the law before we ask our men and women in uniform about their opinion. That is a huge mistake.”

If Senator Graham believes that repealing Don’t Ask Don’t Tell without asking soldiers’ opinions about the policy change would be a mistake, then he believes that the separation of powers, as established in the Constitution of the United States of America, is a mistake.

The judicial branch of the federal government has already found the Don’t Ask Don’t Tell policy to be unconstitutional. U.S. District Court Judge Virginia A. Phillips made that ruling just a week and a half ago, but the Obama Administration is expected to order the Justice Department to continue to defend Don’t Ask Don’t Tell, appealing the decision of Judge Phillips. It doesn’t make much legal sense for Congress to vote against a repeal of an unconstitutional policy, even if it were to be a policy popular with soldiers.

In fact, large numbers of soldiers have already expressed their dissatisfaction with the Don’t Ask Don’t Tell policy. Military leaders have also already testified before Congress that the policy is harmful to military readiness. But, suppose that weren’t true. Suppose that Don’t Ask Don’t Tell was popular with soldiers. Would that be a reason to keep Don’t Ask Don’t Tell in place?

The duty of the Congress of the United States of America is to uphold and defend the Constitution, which bans unequal protection under the law such as takes place under Don’t Ask Don’t Tell. It is not the job of the Congress to pass whatever laws American soldiers want them to pass. The design of the Constitution is intended to ensure that Congress acts as a check against Executive Branch efforts to limit the liberty of the American people. The military is a part of the Executive Branch.

It does not do for the Congress to pander to those in the military who wish to perpetuate discrimination. Lindsey Graham ought to know better than to suggest otherwise.

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