Upon the release of the Pentagon's survey of military men and women, President Obama commented:
"...Today's report confirms that a strong majority of our military men and women and their families - more than two thirds - are prepared to serve alongside Americans who are openly gay and lesbian..."
Those who have supported the repeal of the "Don't-Ask-Don't-Tell" rule have pointed to this study as some sort of Holy Grail, proof that our enlisted men and women themselves are in support, by a wide margin, of ending the policy. And, I suppose, those who have always opposed ending DADT will argue that the survey was not worded correctly, that one-third opposition is still an enormous number of people, that things should not change until after "the war." (Which war? Iraq? Afghanistan? The war Against Terror? the War against Drugs? The brewing one in Korea? A strike against Iran's nuclear reactor?)
But all of this media spin and cheering and questioning of the Pentagon Report seems to ignore one central, critical fact:
Since when are civil and human rights in the United States determined by popular vote?
In the 1940s, President Harry S. Truman, as Commander-in-Chief of the Armed Forces, ended racial segregation in the military with a single pen stroke (not an act of Congress, not a public debate, not a Special Study by the Pentagon) - but in his Constitutional capacity as Commander-in-Chief. And this, during a time when housing, and restaurants, and hotels, and even public schools, in both the south AND the north - were still racially segregated.
Imagine if he had waited for a Popularity Poll to come out of the Pentagon before acting. I expect he could have made an Obama-like announcement:
"Today's report confirms that a strong majority of our military men and women and their families - more than two thirds - are not prepared to serve alongside Americans who are Black or Latino. Therefore, we will keep segregated barracks and bases as they are."
At least one Federal Court has already ruled that DADT is clearly Unconstitutional.
“The act discriminates based on the content of the speech being regulated...It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian service members, which is banned, and speech on those subjects by and about heterosexual service members, which is permitted,” wrote Justice Virginia A. Phillips, in an 85 page ruling in a case that took six years just to be heard.
Well, dammit, if it's Unconstitutional, I really don't care about popular opinions or Pentagon Polls.
We didn't poll white water-fountain patrons before deciding that separate Water Fountains for Whites and Colored was unconstitutional.
We don't poll pacifists to find out how they would 'feel' if someone in their neighborhood wants to own a rifle.
We don't ask permission from a largely Christian community to build a synagogue in their town.
We don't seek majority approval before agreeing to give an accused rapist the right to take the 5th Amendment.
Ahhhh, you say..."but the military is different!"
No, it's NOT.
In the Declaration of Independence, our founding fathers carefully set out their grievances with the British Crown. One of the prominent complaints they had against King George was this:
"...He has affected to render the military independent of, and superior to, the civil power."
In other words, our founders were clear in their desire that the Military not be independent of, nor superior to, civil authority...something we have routinely ignored in the name of "national defense," and something which has enabled us to send our young men and women around the world in a fools errand at policing and empire building.
I really don't care what the Pentagon survey said. It is immaterial. Constitutional Rights in this country are based in Law for the purpose of securing Liberty, and NOT in popular opinion or mob rule.
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