Congress Repeals Ban on Gays in Military
By Melancton Smith • Saturday December 18, 2010 3:25 PM PDT • 4 Comments
Today the Senate joined the House of Representatives in repealing the ban against homosexuals serving in the military.
In 1993 Congress enacted 10 U.S.C. § 654, which effectively prohibits homosexuals from serving in the armed forces. The statute demands immediate separation from the armed forces of a person who (1) engages in or attempts to engage in a homosexual act, (2) states that he or she is homosexual, or (3) marries or attempts to marry a person of the same sex. Congressional policy statements recorded in the preamble to the statute clearly state that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”
Many Americans disagree on whether section 654 is a sound statute. Some cheer its demise and others fear that military readiness will be compromised.
Whatever your position on this, let’s all cheer that this change in policy was effectuated by our elected representatives in Congress rather than the unelected judiciary. The Constitution grants Congress the power to raise, support, and regulate the armed forces. Congress has now exercised its authority to repeal prohibitions on homosexuals. If the people’s representatives believe that this is a mistake, they can change their minds and reinstate section 654. When courts resolve such policy matters, however, the democratic process is short circuited and the overturning of a court decision is much harder under principles of stare decisis.
(Note that U.S. District Judge Virginia A. Phillips recently struck down the statute in Log Cabin Republicans v. United States, but the ruling was stayed. Higher courts have considered the statute and upheld it.)
Tags: Constitution, Culture, Defense, Military, Morality 
I’m lost: why should I care whether the democratic process is or isn’t short-circuited when the issue is one of basic human dignity? The most useful thing the courts can do is to protect people against arbitrary treatment—which is often the product, precisely, of legislative mischief. When they do so, I cheer.
The sooner the state withers away, the better. But as long as it’s in operation, any state entity that stands up against bigotry and prejudice by other state entities deserves our gratitude.
The downside of this decision, of course, is that more people will be encouraged to support and participate in the state’s wars, and so to kill and be killed while on its errands.
Gary Chartier | Dec 18, 2010 | Reply
Soldiers who fight for their country shouldn’t be judged based on their appearance, sexuality, or other characteristics open to prejudices. If they want to join the military, let them. Each citizen should have the right for opportunity and equality. Plus, there will be soldiers in the military and less likely for a draft.
scaasi | Dec 19, 2010 | Reply
scaasi, No one has a right to work for the government and force others to fund his/her livelihood, regardless of gender, age, height, race, sexuality, or any other human trait. Moreover, anyone who is in the military, after one volunteers, faces a compulsory and hierarchical command structure from which one cannot leave or dissent from orders. Equality has precious little meaning in such an organization other than that found in any statist system.
I would recommend the following book from the Independent Institute:
The Civilian and the Military: A History of the American Antimilitarist Tradition, by Arthur A. Ekirch, Jr.
David Theroux | Dec 19, 2010 | Reply
“Checks and balances”... The Supreme Court system’s only purpose is to make such decisions. Don’t get me wrong, Congress has this authority, as noted in the post, and I think that it is great that “don’t ask, don’t tell” was repealed, and I am one of the few that recognize that it was a necessary step toward equality in the military (no way that we could have gotten here over night); but with that said, the purpose of the court system is to be a check on the deeds of Congress, and their job is to render moot laws that are unconstitutional, thus, if Congress had not taken this step, the Supreme Court could have, and likely would have. But, I must agree that I am pleasantly surprised that Congress did the right thing for a change, and didn’t wait for the courts to pick up that hot potato.
joe4liberty | Dec 21, 2010 | Reply