Federal judges in California have been busy.  In August, Judge Vaughn Walker held that it is irrational to limit marriage to one man and one woman.  Following in Judge Walker’s footsteps, Judge Virginia A. Phillips struck down the congressional prohibition against homosexuals in the military as violating the First Amendment and the Due Process Clause of the Fifth Amendment.

The press has described Judge Phillips’ ruling in Log Cabin Republicans v. United States as a repudiation of Don’t Ask, Don’t Tell.  That is incorrect.  Judge Phillips struck down Title 10, Section 654 of the U.S Code, which effectively prohibits homosexuals from serving in the Armed Forces.  The statute demands immediate separation from the Armed Forces of a person who engages in or attempts to engage in a homosexual act, states that he or she is homosexual, or marries or attempts to marry a person of the same sex.  Congressional policy statements recorded in the preamble to the statute clearly state that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

After making campaign promises to the homosexual lobby, in 1993 President Clinton urged Congress to end the military’s ban on homosexuals.  This prompted Congress to study the issue and come up with Section 654, which rejected the Clinton administration’s proposal.  Congress determined that military society is characterized by customs and rules that would not be acceptable in civilian society.  It further found that members of the Armed Forces are often forced into primitive living conditions for extended periods of time.  The presence of homosexuals, Congress concluded, could adversely affect morale and unit cohesion in spartan military environments.

Because large majorities of the House and Senate concurred in these findings and passed Section 654, the Clinton administration went into spin mode.  Rather than executing the law passed by Congress, the White House designed enforcement regulations more in line with President Clinton’s proposed legislation.  Thus, Don’t Ask, Don’t Tell was never passed by Congress and, despite the headlines, was not at the heart of Judge Phillips’ ruling.

In reviewing Section 654, Judge Phillips subjected the statute to heightened scrutiny because of the law’s effect on fundamental rights.  In identifying the fundamental right at issue, the court referenced substantive Due Process rights “identified in Lawrence as rights associated with the ‘autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.’”  Lawrence, of course, was the Supreme Court decision holding that state laws criminalizing homosexual conduct are irrational.  So Judge Phillips assumed that, like a criminal defendant’s right to a jury trial, homosexual conduct is deeply rooted in our country’s history and traditions and, thus, fundamental.

To pass the test for heightened scrutiny, a statute must advance an important government interest, the government intrusion must significantly further the interest, and the intrusion must be necessary to further that interest.  The court agreed that the statute advanced important government interests related to military readiness and unit cohesion, but denied that Section 654 furthered these interests.  The main factors relied upon by the court were the military’s recent difficulties in recruiting and the costs associated with training new enlistees to replace homosexual service members discharged because of Section 654.  The court noted that the number of discharges related to Section 654 has dropped during the conflicts in Iraq and Afghanistan.  This led the court to conclude that the military has little real concern about homosexuals disrupting units.  The court also found that military barracks are now built to give service members more privacy than traditional military living quarters.

The district court’s analysis in Log Cabin Republicans hardly recognizes that the Constitution delegates to Congress, not to the courts, the specific power to “make Rules for the Government and Regulation of the land and naval Forces.”  In light of this fact, other court decisions regarding military discipline give great deference to Congress’s power to raise, support, and regulate the Armed Forces.  Even the Supreme Court has observed that “it is difficult to conceive of an area of governmental activity in which the courts have less competence” than in military affairs.

Judge Phillips’ decision, however, gives little deference to Congress’s legislative finding regarding military conditions and life.  This is embodied in the use of heightened scrutiny and the supposition that homosexual conduct is a fundamental right.  Even the recent federal decision from Judge Vaughn Walker regarding marriage used rational-basis review, which is much less demanding than the framework applied in Log Cabin Republicans.

Of course, under any reasonable standard, Section 654’s prohibition on homosexuals in the Armed Services reflects a legitimate policy choice.  The congression­al findings described above are inherently reasonable and resulted from in-depth studies and hearings examining the compatibility of homosexuality and military culture.

In a sane world, jurists would leave regulation of the Armed Forces to the political branches.  If Congress believes that Section 654 is not in the national interest, it can repeal the statute.  This almost happened in September when the House approved a conditional repeal of Section 654.  Senate Democrats, however, did not have enough votes to push the measure through.

But instead of a sane world, we inhabit one in which judicial restraint is but a specter.  Even on critical matters such as national defense, unelected judges seek to overrule the people’s elected representatives.

If the federal government appeals and the Ninth Circuit Court of Appeals affirms, Supreme Court review is likely because other circuit courts have upheld the constitutionality of Section 654.  Unfortunately, Americans have little reason to believe that the current Supreme Court will be more deferential to the elected branches than Judge Phillips was.