Even as the Obama administration today was asking a California judge to issue a stay of her order that open homosexuality be allowed in the rank-and-file membership of the U.S. military, veterans – including a well-known former prisoner of war – were calling for a full appeal of the decision.
WND reported earlier when U.S. District Judge Virginia Phillips, apparently mixing up the actual law and a policy adopted by the Clinton administration, ordered that "don't ask, don't tell" be abandoned.
While the 1993 law adopted by Congress determines there is no constitutional right to serve in the military, the practice ordered by Clinton allowed homosexuals to be in the military if they "didn't tell." Accompanying that practice was one for recruiters and others of not asking.
The Pentagon said it would comply with the order, which appeared to cancel all investigations of homosexuals who had made their lifestyle a public issue while in the military as well as actions that would separate them from the service.
However, the board of directors of the American Legion today called on President Obama to launch a full appeal.
"Consistent with our long-standing policy of allowing the military to police its own requirements and standards for service, The American Legion requests you appeal this decision," National Commander Jimmie L. Foster wrote in a letter to the White House.
"No action by a single federal judge should obviate the policy of 'don't ask; don't tell' before the Department of Defense completes its review."
The legion adopted a resolution in May urging Congress not to take any action that would alter the Department of Defense practice before the ongoing military review is finished.
"For an unelected judge with lifetime tenure to issue such a ruling while the military was in the process of surveying its troops on the impact of such a policy change is outrageous," Foster said. "She is basically saying that she knows more than our military leadership, our Congress and our elected commander in chief.
"Our military is engaged in two wars," he said. "Military commanders have much more important issues to deal with. This is not about politics. It's about doing what's best for our troops and not distracting from the war effort. Our military should not be micro-managed by judicial edicts."
Admiral Jeremiah Denton, who served more than 7 years as a prisoner of war in Vietnam and later was elected to the U.S. Senate, now runs the Jeremiah Denton Foundation. He told WND there would be huge impacts on the rank and file should such a change be imposed arbitrarily and suddenly.
Robert Gates, the U.S. defense secretary, previously has warned the consequences would be "enormous."
Robert Gibbs, Obama's press secretary, however, said change is coming, including to the law that now bans homosexuality in the military.
"This is a policy that is going to end," he told the Associated Press.
Elaine Donnelly, president of the the Center for Military Readiness, said the order from the district judge was out of line.
"U.S. District Judge Virginia Phillips has proven what the Supreme Court has recognized several times: The judiciary is the branch of government least qualified to make policy for the military," Donnelly said.
"Judge Phillip's outlandish ruling, which would not withstand Supreme Court review, sweeps aside the well-established principle of judicial deference to the other branches of government, which is firmly rooted in Article 1 of the U.S. Constitution. (Section 8: 'The Congress shall have Power…to make Rules for the Government and Regulation of the land and naval Forces.')," she continued.
"Judge Phillips apparently sees herself as Supreme Judicial Commander of the U.S. Military, having reached her short-sighted conclusion after eight days of one-sided testimony from gay activists who failed to prevail in the legislative branch. It is absurd to suggest that a rogue district judge knows more than elected members of Congress," she said.
"In 1993 Congress conducted 12 legislative hearings and numerous field investigations, followed by hours of floor debate culminating in bipartisan, veto-proof majorities enacting the 1993 law. Unlike the Clinton administrative policy known as 'Don't ask, Don't tell,' the actual law clearly states, 'There is no constitutional right to serve in the armed forces.' (Section 654, Title 10, U.S.C., Finding No. 2)," Donnelly said.
"If the U.S. Solicitor General does not appeal Judge Phillips' order in the Log Cabin case, the Obama administration will have abandoned fundamental constitutional principles allocating power and responsibility for military affairs to the legislative and executive branches, just to deliver on the president's political promises to LGBT (lesbian, gay, bisexual, transgender) activist groups.
"White House officials are well aware that allowing the judiciary to take command of the military, or any action themselves to implement orders or regulations revoking the 1993 law administratively, would break faith with the troops and destroy bonds of trust that must exist between the commander-in-chief and the forces he leads," Donnelly said.
She noted Obama's Justice Department failed to present a case that defended the law on its face.
Instead, it relied on the long-standing principle of judicial deference in military matters, she said.
"This presentation in court obligates the Obama administration to file an immediate appeal," Donnelly said. "The district court order purporting to govern the military worldwide is so irregular and extreme, even the controversial Court of Appeals for the Ninth Circuit might reject it. The Supreme Court certainly will. Matters of constitutional principle and separation of powers go far beyond the question of professed homosexuals in the military. That issue is important to the future of the armed forces but less important than the question of who gets to decide.
"Department of Justice attorneys know this. We expect the administration to appeal and the Supreme Court to affirm once again that federal judges do not have the power to make policy for our military. President Obama must not surrender constitutional powers to the courts for reasons of political expediency, particularly when the Defense Department and Congress are in the midst of an ongoing review of the consequences of repealing the 1993 law," she said.
Joining the flood of criticism of the judge's far-reaching decision were officials with the Thomas More Law Center in Michigan.
"If Judge Phillip's order is allowed to stand, it will ultimately result in the destruction of the most effective military force in the history of the world," said Richard Thompson, the group's chief counsel. "We now have an all-volunteer military. Studies show that up to 24 percent of our military would resign when their term is up should open homosexuals be allowed in the military.
"Parents will discourage their young sons and daughters from enlisting in an organization that will ultimately be dominated by homosexuals and their agenda," he said.
His organization noted that 1,163 distinguished retired military leaders from all branches – including two former chairmen of the Joint Chiefs of Staff – have joined in a letter supporting a ban on homosexuality in the military.
They warn ignoring their concerns will result in a hit on the military's "morale, discipline, unit cohesion, and overall readiness."
"The primary purpose of our military is to win wars. Our military should not be used as a laboratory for social experimentation. We must not allow a political agenda to destroy our war-fighting capabilities. I believe Judge Phillip's Order leaves the Justice Department no choice but to appeal her over-reaching and ridiculous order," Thompson said.
The judge's actual decision said, "Defendants United States of America and the Secretary of Defense [are ordered] immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the 'Don't ask, Don't tell' Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment."