Federal Judge Strikes Down DADT

As I’m sure everyone’s heard by now, a federal judge in California struck down the Don’t Ask Don’t Tell policy. Coupled with the ruling against Prop 8, and another federal judge’s ruling against the Defense of Marriage Act, this gives the gay agenda (a.k.a., equality) a 3-0 record in the courts this year. This follows a series of state supreme court rulings that have struck down state-level bans on same-sex marriage. And all of these come on the heels of the Supreme Court’s 2003 Lawrence v. Texas ruling that ruled sodomy laws unconstitutional, and it’s 1996 Romer v. Evans (1996) decision, in which it struck down a state law prohibiting municipalities from ensuring equal protection for homosexuals.

Gay rights are having a pretty good season. Even a couple of recent setbacks weren’t really rejections of the primary claim to equality. For example, Strauss v. Horton, the California state court case challenging Prop 8. Given that the plaintiffs were challenging a state constitutional amendment on some very dubious technical grounds, the decision wasn’t really about equal rights at all, as a legal matter, and was an almost unavoidable legal outcome, I think. But even in that case, the court left existing marriages intact. And of course it’s legally unavoidable upholding of Prop 8 was negated by the Federal District Court’s ruling. And the Wisconsin supreme court rejected a challenge to a voter-approved constitutional amendment banning same-sex marriage that, like Strauss, was not really about equality, but a technical interpretation of the state’s rules on the referendum process.

On the other hand, a Texas state appeals court has upheld that state’s ban on same-sex marriage against a claim that it violates the U.S. Constitution’s equal protection clause. This is the single notable anti-equality win SSM opponents can count in recent years. The Washington state supreme court upheld that state’s marriage ban in 2006 (although that was substantially, if not completely, reversed by the voter-approved “everything but [the word] marriage” law).

There may be others that I’m not finding, but setting aside the California and Wisconsin cases as being about process, not substance, and adding the 5 pro-equality state rulings to the list of federal court rulings, equality has an 11-2 record in the courts since 1996.

I’m not familiar with any other issue that became a consistently winning legal issue that ultimately lost. The closest analogy, perhaps, is death penalty jurisprudence in the 1970s, which resulted in the Supreme Court effectively ruling the death penalty unconstitutional, then ultimately allowing it again. In that case, there is a clear constitutional provision allowing the death penalty. In this case there is no equivalently clear constitutional provision that could come into play to reverse the legal trend toward equality.

I think looking at the issue this way provides real reason for optimism about the ultimate outcome. Several years back I first noted that even many gay rights opponents had conceded that it had successfully become defined as a civil rights issue, and noted that they were chagrined about that precisely because they recognized the difficulty of opposing civil rights. The legal trend perfectly matches that successful definition, giving the imprimatur of constitutional law to that political understanding.

That in itself ought to give opponents of same-sex marriage pause. I know conservatives like to blast “activist” judges who overturn “the will of the people,” but when the overwhelming majority of judges rule that the law requires a particular outcome, honest people should begin to ask themselves whether maybe–just maybe–those legal specialists might be right.

But we are now rapidly approaching a crucial moment. The DADT, DOMA, and Prop 8 decisions–all Federal Circuit Court rulings–will all ultimately be appealed to the Supreme Court, regardless of the outcomes at the Circuit Court level. The Supreme Court may be able to duck one or two of these decisions, but unless each one is reversed by the Circuit Courts–which, based on the recent trend of decisions, would seem very unlikely–it cannot duck all three of them.

And yet in this case I still have a very deep fear of what will happen before the Supreme Court. Because the Court tends to draw heavily on arguments in the briefs and in lower court rulings when making its decisions, it would ordinarily seem likely that we could reasonably anticipate the ultimate outcome. And maybe we can, even in this case. Maybe the Supreme Court will indeed behave “normally.” But I frequently offer wagers to people who oppose me on an issue, whenever I am absolutely confident that if they take the wager I will take their money.* I’m not offering any wagers this time around.

Prop 8 Update: In a recent post on the current status of the Prop 8 legal battles I discussed the question of whether the Governor or Attorney General of California have a legal duty to defend the case. I argued that they probably did not, while admitting I didn’t know California law on the issue. Just this week the California state supreme court ruled that they are not legally obligated to do so. Because that is an interpretation of state law, the state supreme court ruling closes that issue for good. Federal courts will not question state law except in relation to federal law or the U.S. Constitution. However I still think the 9th Circuit might find grounds to grant a private entity standing to appeal, just to ensure that a case that is indisputably destined to be appealed to the U.S. Supreme Court receives a thorough Circuit Court hearing. And if they don’t the Supreme Court definitely will.

*Oddly, despite those folks stated confidence in their rightness, they never–never–take the wager.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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15 Responses to Federal Judge Strikes Down DADT

  1. Tim Kowal says:

    I can’t see why a judge’s moral view about marriage should have any more or less weight with the people than anyone else’s, even notwithstanding they may be “legal specialists.” The very fact that judges have taken up arms in this culture war should be more troubling for SSM advocates than its opponents. Most folks see the writing on the wall: those of us in California especially can see that SSM will pass the next time it comes to an up-or-down vote. But the fact that a San Francisco lifetime appointed judge may have ended the debate once and for all (given there is quite a fair chance the Ninth Circuit will decline to hear the appeal for lack of standing) will be a bitter pill to swallow.

    Speaking of the Perry decision, the rule employed to reach its conclusion is a heavy hammer indeed. That no “private moral” view may ever form the basis for legislation would mean the end to all legislation concerning not only marriage, but adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc. Even many environmental conservationist laws could not stand under such a rule.

    As I have implored Jason Kuznicki here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left? Jason’s answer was less than comforting: the “checks on the judiciary” that one would expect to learn in a “high school civics lesson.” Which I take to mean, “advice and consent,” the power of the purse, and “court packing.” (I assume jurisdiction stripping and the theory of separation of powers expressed in O’Connor’s dissent in Boerne v. Flores are unlikely to be covered in secondary school.) If you have a more satisfying answer to the judicial activism problem, then perhaps the rest of us can take a bit less umbrage at the courts’ recent railroading of the right to self-governance and the right to define, create, and perpetuate our social institutions.

  2. Tim Kowal says:

    (Of course, the list of “checks and balances” I provided is incomplete, but only as to seemingly inapplicable checks on the judiciary. E.g., the ability to overturn Court decisions through constitutional amendment and to impeach judges don’t seem to apply here: the federal government certainly does not have the power to define marriage for the several states; and egregious as judicial activism is, there is no question of “high crimes and misdemeanors.”)

  3. Michael Enquist says:

    Mr. Koval,

    Instead of engaging in all this legal technobabble, why don’t you just explain in plain American English why you believe you have the right to use government power to prevent two adults of the same gender from entering into a contract with all the same legal provisions as enjoyed by opposite-gender adults when they sign a marriage license?

  4. tim says:


    Two points. Judges have always dabbled in “culture wars” (as you put it) since the time of our founding.

    And the second point is your use of “San Francisco lifetime apointed judge” and “activism” really shines your biases and undermines what little credibility you had to begin with.

  5. Michael Enquist says:

    I just realized my typo, Mr. Kowal. I apologize.

  6. Mark Boggs says:

    That no “private moral” view may ever form the basis for legislation would mean the end to all legislation concerning not only marriage, but adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc.

    Which is a great point. Except that in some of these instances, you’re ignoring the matter of consent. No animal consents to be treated cruelly. Nor does an an animal consent to being boinked. Polygamy only becomes a legal quagmire when you’re talking about divorce and all its attendant problems with property and children. And it is certainly an issue when you’ve got underage children being married off to old men under the guise of religious tradition (as we have here in Southern Utah). Again, that’s a matter of consent.

    if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left?

    If the people are not sovereign over the courts in such matters as two consenting individuals making a contractual agreement with the state, what of their sovereignty is left? That helps define the statement a bit better and also brings out the ridiculousness of the question. Do you believe that we should decide what two consenting adults do in their contractual arrangements with the state by popular vote?

  7. Mark Boggs says:

    Don’t forget, that San Francisco judge was appointed by a republican.

  8. Michael Enquist says:


    Careful. Not “two consenting individuals making a contractual agreement with the state,” but “two consenting individuals making a contractual agreement with protection of the state,” or something.

    The consenting adults are not making a contract with the state, but with each other, and the state is providing the mechanism of enforcement.

    You and I could get married (you cutie!) without involving the state at all. It’s only when we want to have automatic recognition that we are tenants in common in other contracts, for instance, that we need the state to recognize that our marriage is legally equal to that of Achmed and Fatima. Our marriage contract is with each other, though, never with the state.

  9. Tim Kowal says:

    Animals certainly don’t consent to being eaten, either. Yet, we have democratically enacted laws that permit us to both slaughter animals for the purpose of being eaten, and yet condemn other sorts of acts against them that we deem cruel and immoral. Democracy allows laws and ideas to co-exist that would not be able to co-exist if judges were left to devise them. What sort of juridical rule, faithfully applied, would permit us to kill and eat animals but not commit other non-fatal acts upon them?

    As to your second point, we in fact do subject the law of contracts to legislative limits—all too often, in my opinion. There are certainly those who believe that many of these limits are unconstitutional. (I’m looking forward to reading ,Tim Sandefur’s new book, by the way.) I’m not sure I’d agree, or perhaps not to the same extent or for the same reasons as Tim Sandefur.

  10. Tim Kowal says:


    Happy to oblige your request! I devised a thought experiment that I think captures the answer to your question here. Bear in mind, however, that your question is a little misleading: The Perry ruling acknowledged that California’s domestic partnership laws afforded all the same legal rights to same-sex couples as to married couples. The question, then, was whether “the withholding of the designation ‘marriage’ significantly disadvantages plaintiffs.” This is a dispute over language, not rights. It truly is a culture war.

  11. James Hanley says:

    Mr. Kowal here argues that the basic principle of Brown v. Board of Education, that “separate is inherently unequal” is a mere language issue, not a rights issue.

    Mr. Kowal, if you don’t think the refusal to allow the designation “marriage” doesn’t in fact significantly disadvantage anyone, then you won’t mind giving it up (assuming you’re married)?

    You can’t have it both ways. You can’t claim that the designation “marriage” is of great value, while simultaneously claiming that withholding it from someone else isn’t a disadvantage.

  12. Tim Kowal says:

    The argument that this is akin to racial discrimination gets into some rough waters. Because of the specific issue of racial bigotry in our nation’s past, manifesting in slavery, a Civil War was fought and three constitutional amendments were passed. Thereafter, overt vestiges of the bigotry persisted through Jim Crow laws, leading to an understandable if not completely justified reaction by the Court in Brown and its progeny. We would do (and have done) a disservice to ourselves and our constitutional structure if we took that novel and highly unprecedented skepticism and scrutiny of state actions having to do with racial classifications and carried it forward to apply it willy-nilly to any number of other classifications that certain fashionable intellectuals regard to be distasteful.

    My marriage (yes, I am married) is of great value to me. But I fail to see the connection how it is a legally enforceable value, other than the explicit legal entitlements (tax implications, visitation rights, inheritance presumptions, etc.), which, as I mentioned are all already available to same-sex couples.

  13. Franck says:

    “the explicit legal entitlements (tax implications, visitation rights, inheritance presumptions, etc.), which, as I mentioned are all already available to same-sex couples.”

    Mr. Kowal, you seem to forget one thing: there are 1,138 federal rights expressedly denied to same-sex couples in the United States. One of these is what has forced me to live 11,000 miles away from my partner for over three years now and might continue to do so for a while. No Mr. Kowal, with or without the word “marriage”, we don’t enjoy the same rights you do.

    And if this whole thing really is a matter of language rather than rights, then let us examine Hawaii’s Civil Union bill. Vetoed by the Governor in 2010 because it gave it gave same-sex couples the rights, even if it refused them the word. Yup. She refused because the bill was giving the same rights!

    Washington, same thing, 2009: someone went to battle against civil unions being “the rights without the name”. Wisconsin, 2009, another battle against legislation that would grant same-sex couples a (tiny ) portion of the rights opposite-sex couples enjoy.

    See Mr. Kowal, it is not a matter of language. I personally don’t care whether you call it marriage or not, I just want those rights you say I already have. Sadly, people like you still battle to deny me, to deny us even that.

    – Franck P. Rabeson, time spent being forced apart from the one I love: 1,177 days as of today.

  14. Michael Enquist says:

    Mr. Kowal,

    I tried understanding your thought experiment last night and, honestly, found it to confusing for me to see what analogy you were making with same gender marriage. That’s the trouble with analogy-making, it sometimes takes the point less clear rather than more. But I believe and hope that if you can specifially address Mr. Rabeson’s post, you will provide insight into questions I have.

  15. Pingback: Two More Losses for Bigotry | The One Best Way

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