By Mike Dorf
With yesterday's ruling by Judge Phillips striking down "Don't Ask Don't Tell," we appear to have reached a tipping point on judicial willingness to act to protect gay rights. Together with earlier rulings this year, we now have federal district court rulings invalidating the Defense of Marriage Act, California's Prop 8, and Don't-Ask-Don't-Tell. Although I agree with all of the rulings as a normative matter, I'm interested here in a causal account. Both DOMA and Don't-Ask-Don't-Tell have been on the books since the Clinton Administration, whereas prior to the ruling in Perry v. Schwarzenegger, no federal court had invalidated a state law barring same-sex marriage, ever. Why the seemingly sudden change? I would point to two factors.
First, and most obviously, norms have been changing. Federal courts can sometimes get out ahead of public opinion, but given that federal judges come from the same basic pool as the nation's other elites, they are unlikely to go too far out ahead. And so, whereas the country was not quite ready for same-sex marriage or openly gay service members in the armed forces in the 1990s, by now both are pretty mainstream (especially opposition to Don't-Ask-Don't-Tell). It would have taken a very bold federal judge to reach these decisions in the 1990s; today, it's almost a no-brainer--especially when one looks at the perversity of Don't-Ask (in discharging service members with valued skills while we're fighting two wars) or the weakness of the arguments offered against same-sex marriage. I don't think the calculus should have been different 15 years ago, but because it was different for so many people, it was easier then for federal courts to duck the issue or to cite such general interests as "respect for tradition" or "deference to the political branches in military affairs."
Second, legislative efforts appear to have stalled. This is a familiar pattern in constitutional litigation, one that we have seen before with respect to legal challenges to Jim Crow, to malapportionment, and to restrictive abortion laws: So long as efforts to change the law through legislation bear some fruit, the courts are happy to leave such controversial issues to the legislative process, but once those efforts hit substantial resistance, judges no longer believe that elected officials will take them off the hook--and so they vote their consciences. To put the point somewhat differently, the notion that American judges are eager to intervene in politics is largely a myth; they typically intervene as a last resort.
To be sure, one might think that in a basically democratic system, judges should decline to intervene, even when progress appears to be stalled--because the definition of progress should be left to the political system. I think that's a defensible position, but it's not really a position held by anyone, and certainly not a position held by most of the critics of :"judicial activism." They think courts should intervene in politics when the outcomes produced by politics disfavor what they regard as the correct interpretation of the Constitution; they just disagree about what those correct interpretations are.
So, to return to the core point, I regard the critical turning point on Don't-Ask-Don't-Tell as the preposterous insistence by various defenders of the current policy on the proposition that it would be dangerous to engage in a "social experiment" with our military during wartime. As Judge Phillips documents, quite to the contrary, the military has dramatically under-enforced Don't-Ask during the last 9 years, precisely because of the national security dangers that arise from discharging essential service members who happen to be gay. So the experiment is well under way already.
Unfortunately, under-enforcement of Don't-Ask is not non-enforcement and so hundreds of service members continue to be discharged each year, while thousands more never sign up. It would have been ideal if Congress had carried through on repealing Don't-Ask, and perhaps it will yet do so before the appeals in this case are final. In the meantime, the opinion by Judge Phillips says, in essence, enough is enough.