New Discrimination Playbook

A conservative state legislator in Virginia plans to ban gay national guardsmen in Virginia via statute reminiscent of DADT. Except the statute wouldn't rest on the conduct of gay service members (i.e. vigilantly closeting their sexuality), but appears to rely on the more absolute 'objective' standard of sexual orientation. The measure would ban all homosexuals from the national guard, not just ones who 'tell' other service members that they are gay.

The forced closeting of gay service members under the DADT regime is over in the army, thanks to leadership from the White House, surprisingly non-ornery Joe Lieberman, and a handful of Senators who put their country before the Republican Party. Democrats don't deserve any credit according to the mainstream media because only Democrats are supposed to care about ending purposeless discrimination. For instance, a more equitable DADT regime would have made discharge automatic for any service member who 'comes out' about either heterosexuality or homosexuality. People with sex drives are an obvious threat to "unit cohesion" regardless of orientation. But I digress.

The purpose of Delegate Bob Marshall's bill is clear. It is to let other nations dictate the policies of the American army:

"This policy will weaken military recruitment and retention, and will increase pressure for a military draft,'' Marshall said. "After 232 years of prohibiting active, open homosexuals from enlisting in our military, President Obama and a majority in Congress are conducting a social experiment with our troops and our national security...In countries where religions and cultures find homosexual acts immoral, the Obama administration's repeal policy will work to the detriment of all American troops in securing local cooperation with our nation's foreign policy goals."

America has a responsibility to the Taliban, to the Jamaicans, and to anybody else with senseless prejudices to uphold their standards. It is these societies' hatred of American liberties (i.e. liberal values) for all its citizens that drives their wars against America after all. If we could only bring our values into line with theirs, we could have a peaceful world. Marshall thinks that respect for Taliban values would improve the army's ability to secure peace. And after all, isn't peace worth the sacrifice of our liberty?

This grandstanding is a product of President Obama's preference of getting Congress to reverse its civil rights mistakes instead of letting the Courts perform this task. While Courts typically are bad at creating social policy, they were in a very good position to repeal DADT. The Hollow Hope constraints of rights, judicial dependence, and policy development simply did not exist with DADT. There was a clear constitutional right against discrimination in the equal protection clause. The executive branch and military supported repeal of DADT, meaning that the lack of judicial independence would be a boon to reformers, as the court would be steered to the most effective and remedial outcome. Policy development also would be left to the repeal-friendly military, a monolithic organization who would not produce compliance or implementation troubles. DADT repeal was ripe for court overturn. The added benefit of Supreme Court action would be the general rule that discrimination against homosexuals would not pass Constitutional muster unless there was a very good reason for it. The military has never presented a rational problem that discrimination solved. The Bob Marshall argument, is perhaps the most compelling argument for DADT that I've ever seen. It is, however, simply a bad principle to bend American laws and customs to fit despotic, brutal, or otherwise illiberal societies.

In the end, Bob Marshall won't be able to gather enough support to make this into a law, and if it were enacted, the courts would pretty much have to overturn it. The backlash this time (a feature of all social change) is coming from conservative politicians with little support from the populace. The fact that two Senators switched their votes from a No on cloture to a Yes on the actual bill suggests how little stomach there is to support discrimination in the military. If the courts had accomplished the same goal, the narrative might be a little different, with more far-right grumbling being reported as more common or more representative than it is now. Congress at last did the right thing, and democratic action is, in this instance, preferable to court action that would be attacked as somehow countermajoritarian.

A footnote: Bob Marshall thinks that Virginia would be able to discriminate against gays in its national guard because:

Marshall, who is considering running for U.S. Senate in 2012, is one of the House's most conservative members. He said Article 1, Section 8, Clause 16 of the Constitution gives Virginia the authority to uphold the ban by "reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

"The Constitution never would have been ratified if states were not reserved unqualified control of the militia, now called the National Guard," he said.

So if you ignore the whole "according to the discipline prescribed by Congress" clause, he could be right that Virginia at one point had the power to do whatsoever with its militia. The 14th Amendment changed all that with the inscription of American citizenry as characterizing state citizens and the promise of equal protection of the laws to all Americans.