The ruling by federal district judge Virginia Phillips that the “don’t ask don’t tell” (DADT) law regarding gay people in the military could not be enforced Constitutionally (October 12, 2010) has put President Obama in an anomalous position. He says that he agrees that DADT is wrong; yet his administration plans to appeal the decision in court, in effect fighting for a policy he says he does not believe in. According to CNN, the rationalization for this seemingly contradictory stance is that the decision should be made by Congress, not the courts, and that “The Justice Department says that it defends all laws of Congress in court.”
Is that correct? Should a presidential administration go to court to defend laws it disagrees with? That depends, in my opinion, on what sort of disagreement it is. If President Obama just thinks that DADT is a bad idea, perhaps he should defer to the existing Congress-passed law, and try to get it repealed through the legislative process.
However, the court did not rule that the law is a bad idea. It ruled that it violates the Constitution, by denying gay members of the Armed Services equal protection of the laws. The President’s oath of office calls for him to defend the Constitution – so it could be argued (and has been by many presidents) that he should not enforce a law if he believes it to violate the Constitution.
No doubt the right of gays and lesbians to serve in the miliary will be more strongly established if it is established by Congressional action, or by a Supreme Court ruling, rather than a failure to appeal on the part of the Obama administration. However, the duty of the President is to enforce the Constitution as he sees it, and he should do so in this case.