Monday, October 25, 2010

Recent DADT court ruling seems to depend on Lawrence v. Texas

The Washington Times has (again, I believe) tied the “don’t ask don’t tell” ruling from Judge Phillips in the Log Cabin suit to the Lawrence v. Texas ruling in 2003, striking down the Texas homosexual-only sodomy law 21.06. The story by Ben Conery is here.

Earlier, the Bowers v. Hardwick 1986 ruling had sometimes been used as constitutional justification of the ban.

The 2003 ruling can mean that Congress cannot prevent members of the military from engaging in constitutionally protected intimate private choices, or maybe even from talking about them with some due discretion. On the other hand, Congress might be able to prohibit members of the armed forces from some behavior because of explicit powers given to it by the Constitution to regulate the military. But the problem is that Congress still has the constitutional authority to resume the draft, which could (at least for draft-age men) effectively ban a private choice in civilian life.

This line of reasoning might be more familiar to older people and to “conservatives”. It seems a bit ironic that the so-far successful challenge to “don’t ask don’t tell” arose within the Republican Party. Even so, John McCain (R-AZ) talks about filibustering a Senate debate in the lame duck session, which is expected to house more Republicans than now.

The Ninth Circuit is expected to rule on the Log Cabin case early in 2011, setting up a showdown in the Supreme Court since there are conflicting rulings now at the appelate level, unless Congress does end the policy.

In the mean time, the Pentagon has made discharges much more difficult in practice, even for enlisted men.

As I've noted before, it's always seemed to me that sodomy laws has been used as a clumsy way of trying to make procreation a mandatory responsibility for everyone.

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