Gates Of Hell

I've always admired Sec Def Bob Gates, even when he was CIA chief under George the First. He seems pretty much above partisanship, a straight shooter, unafraid to stand hard. So his comments after a Federal judge tossed DADT sort of surprised me a little. He said, in part,

"I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training," said Gates. "It has enormous consequences for our troops."

Well, in fact I have no disagreement with anything he said; it's the context, right after the decision. Because whereas he may understand the situation (I'd give him the benefit of the doubt), such people as Christine O'Donnell most certainly do not. In addition to other insanity, as predictable as rain in Puget Sound, talking points as original as they are thoughtful, she refers to the decision as "legislating from the bench." (Wonder what she called the "Citizens United" ruling.) People like her will never, ever, figure it out. Which means every last teabagger, and pretty much everyone in the Republican party. It requires stopping to think; it requires a modicum of (though not much, maybe eighth-grade) understanding of how our government works.

Pissing in the wind-up, beating a deaf horse, jerking the off-button, I'll say it anyway, in two words:

Judicial review.

Checks and balances.

The Constitution.

Out of ignorance, hatred, misguided good will -- for any of many reasons, states, voters, the Congress have shown themselves quite capable over the years of passing laws which are unconstitutional. Among the great wisdoms of the Constitution is the way it protects minority rights and unpopular views: nothing could be more fundamental to our system of government. Yet not everyone -- especially not those right wingers who'd have us believe they love constitutional democracy -- likes how it works. It's not "legislating from the bench" when a court rules a law unconstitutional. It's saying to the lawmakers, sorry, try again. You want to do something not allowed by the Constitution, amend it. (Which, of course, is exactly what America-and-its-constitution loving right-wingers want to do: they have a whole bucketful of changes in mind. Outlawing gay marriage is the least of them.) Until then, ordering adherence to the Constitution is the opposite of legislating from the bench. It's holding the line.

Now, I happen to think it's as obvious as my liver spots that discriminating against an entire class of people based on their sexual orientation is unconstitutional. (It seems pretty undeniable as well that multi-billion-dollar corporations differ from individuals in terms of speech, and that that decision was blatantly political, whereas the DADT one is as strict-constructionist as it gets.) So whereas Gates is right that it'd be ideal for Congress to be dealing with the issue, that doesn't change the fact that a judge has a duty to strike down discriminatory and unconstitutional laws. It's what they have done since Marbury v. Madison, and must continue to do. (I acknowledge that some legal scholars are questioning the breadth of the judge's authority. To this biology major, that doesn't affect the basic principle.)

Because as long as our nation is capable of producing an entire party dedicated to ignoring fact, to mocking science, to substituting the Bible for the Constitution, and to fomenting hate as a way to gain or retain power, if we don't have judges willing to do what's right, we'll cease to be what we've always been: a nation of laws.

The Christines and Sarahs of the world, and the RWS™, however, simply will never get it.