Hornet; thanks for the input. I do agree with you. The debate however comes in when the judicial branch steps into the "responsibilities" of the executive and legislative branch. Again; forget the whole DADT matter; that isn't what matters here. If the judicial branch is allowed to legislate in the case of the military; and overturn what the congress and president have put in place; because "THEY" interpret it as unconstitutional, then what is to stop them from declaring the majority of the UCMJ as being unconstitutional.
I understand the levels of scrutiny that the courts will measure upon. And while my examples of hair, piercings, etc... may have been a weak argument, take it further. If a Major (O-4) and an Airman (E-3) want to date, fraternize, etc..., and neither are in each other's chain of command, it would be arguable that the Judicial branch of government could rule forbidding fraternization in such a scenario, would be unconstitutional. Same with an individual wanting to simply wake up one morning and call up their commander and say: "I quit; I'll be moved out of the dorm by noon". Constitutional rights don't and can't have levels of importance. An individual either has a certain right, or they don't. The law only allows restraint of certain rights when the individual has or potentially has within good reason, infringed on another individual's rights. (E.g. arrest, confinement, etc...) And in the case of the military; the restrictions on the individual's rights are understood PRIOR to voluntarily entering the military. This issue was brought up during the vietnam war, because some individuals claimed that they didn't voluntarily enter the military. Therefor, they were being forced to into slavery. But even then, the courts admitted and many others realized that the military must have their OWN judicial system.
Either the military, through the power of 453 house representative, 100 senators, and the president: has the right to their own unique justice system; OR, the UCMJ is to be abolished and military personnel are covered under the traditional judicial system. Our constitution and US Code specifically gives the military; via the congress and the President, the ability to make unique laws, rules, policies, etc... for military members; to ensure order and discipline. Fortunately, it wasn't the Judicial branch that desegregated the military. They did that on their own, through the congress and the president.
That is how all things should be handled in the military. The president has already said that DADT will discontinue. He and the congress are working with the military to work out logistical issues. The review and recommendations from the military are actually due out shortly. They are addressing the problem properly and constitutionally. This is not the place for the judicial branch of government. I've heard the President address this issue. And while I am not the biggest fan of his, I am very proud of him for standing up to his responsibilities. The house of representatives approved the Murphy amendment which would repeal the law within 60 days of the military finishing their study. And while the defense authorization act wasn't completed, the congress showed that they can address this issue constitutionally. Unfortunately, Judge Philips thought it was "HER JOB" to address this issue, and ruled DADT unconstitutional in the LCR vs USA case in september. But still feeling that SHE had the constitutional power, and NOT the congress and president, she issued an injunction against the military and forbidding them to enforce DADT.
This all comes down to the fact that she is overstepping her authority. And it's quite simple. If a person believes that SHE has the constitutional right as a federal judge, to dictate the military judicial system; and NOT the congress and the president; then you must believe that there is no need whatsoever for a military judicial system, including the UCMJ. If that's what a person believe, then fine: ADMIT IT. But you can't have a military judicial system when much of the military law is "Unconstitutional" in the civilian world; and can be reversed or ruled on by someone like Philips.
The best thing is the 9th circuit court of appeals has granted the President his appeal to block Philip's ruling. At least temporarily. The told the appeals court that the military is almost finished with their study on HOW they will reverse the DADT policy so that it's done orderly. (This is the military, order is paramount).They also argued that this should be addressed by CONGRESS and not through the COURTS. GOOD FOR THEM!!!! Of course there are critics who don't know anything other than their emotions, who believe Obama says he wants DADT rescinded, but by appealing to a higher court, he secretly wants to ban gays in the military. These people are freakin idiots.
The decisions made on the "Judicial" issues here go WAY BEYOND DADT. This has nothing to do with DADT. If the judicial branch is allowed to legislate, then it is going to set a president for all military law, the UCMJ, order, and military discipline as a whole. If this judgment stands, then courts will use this case to support any and all grievances with the UCMJ and military policies. And if DADT can be made into a "Constitutional Rights" issue, then so can fraternization, speech, Freedom (Which includes a lot of articles in the UCMJ), etc... This is the slippery slope we're on. It's bad enough that the courts have been allowed to legislate civilian and state's rights; if they're allowed usurp the military justice system, then there is no reason to even have a military judicial system. That will make for one really screwed up military. (Wonder why they call it "Military Justice" if it's not suppose to be designed, implemented, exercised, and enforced differently than the civilian judicial system.
