Latest On Gays In The Military…and Where It Could Lead

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As expected, the Obama Administration has gone to the 9th U.S. Circuit Court of Appeals to appeal a lower court’s ruling that “Don’t Ask, Don’t Tell” is unconstitutional and ordering the government to stop its enforcement. Federal District Court Judge Virginia Phillips made her ruling final Tuesday.

Marines in Ramadi, Iraq, last month / DoD

The Administration says:

The district court’s decision holding that an Act of Congress is invalid on its face and permanently enjoining enforcement of the statute anywhere in the world itself causes the government the kind of irreparable injury that is routinely the basis for stays pending appeal…The President strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. Although the Administration has called for a repeal of the statute, it has made clear that repeal should not occur without needed deliberation, advance planning, and training.

A decision could come at any time. While the 9th Circuit is perhaps the most liberal in the nation, judges have long been leery of treading on the military’s turf. They have been sensitive to the military’s desire to promote what it terms “good order and discipline.” Not knowing an M-16 from an F-16, the judiciary has refrained from getting involved in military matters for just that reason.

While that standard may be apt on the battlefield, it has become part of the so-called Feres doctrine created by the Supreme Court a half-century ago. The doctrine bars servicemen and women — or their survivors — from suing the government if some boneheaded decision (there are so few of them) gets them injured or killed, even if negligence is involved. And Feres gave birth to the so-called government contractor’s defense. That’s where contractors essentially are immunized from suit for designing dangerous weapons, by blaming such designs on the government, even when the contractor holds the patents on said designs.

For the contractors, it’s a “Heads I win, tails you lose” situation. For the troops involved, it’s the reverse.

Maybe if Judge Phillips’ intrusion into military matters emboldens her fellow jurists, troops who are maimed or killed by poorly-designed weapons might get a chance to reach for that brass ring of justice, too.