I've heard many arguments, most from the Obama administration, that since DADT was a legislative act, we must repeal that act legislatively and that's the only way to remove the law. That just isn't true. See, we have this thing called checks and balances. The judicial system can rule a law unconstitutional. From Wikipedia:
When the proper court determines that a legislative act (a law) conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review. The portion of the law that is declared void is considered to be struck down, or the entire statute is considered to be struck from the statute books.Sounds pretty simple, doesn't? This week, a Florida court ruled that that state's law banning adoption by homosexuals to be unconstitutional. The Florida Attorney General and all involved in the case agreed to withhold appeal. Thus, after 30 plus years, a court reversed a piece of legislation. It didn't require the state legislature to repeal the law. It just required judicial review.
DADT can go the same way. Anyone who tells you different doesn't understand one of the founding principals of our nation - our systems of checks and balances and the triumvirate of legislature, executive and judicial branches of government.
I don't claim to be a constitutional lawyer and my last Civics class was...well it wasn't called that at my high school but it was a while ago. I do remember, however, the idea of checks and balances. One of the primary roles of the judiciary is to provide judicial review and is in fact the key way that it provides checks and balances against the legislature.
U.S. District Judge Virginia Phillips said DADT violates the First and Fifth Amendment rights of gays and lesbians. Thus, making the law unconstitutional. Specifically, she said the law violates both free speech and due process rights of gay service members. In making this decision, Judge Phillips was making a properly ruling on the constitutionality of a law, plain and simple.
There are two reasons I think the Obama administration should let the matter rest and abide by the court's ruling of unconstitutionality. One, the chances that this can be repealed legislatively are slim. They require that both houses of Congress stay under Democratic control, something that's debatable, and that the Democratic leadership grow a spine while the Republicans simultaneously decide to participate in government and stop obstructing. Two, do we really want to see this go to the Supreme Court? The same court that gave us Citizens United is how likely to rule in favor of the Log Cabin Republicans? Not very. This is perhaps the most Conservative court in modern history. Do you really think they're going to rule against the government's case?
Hopefully, the Ninth Circuit Court of Appeals will agree with Phillips, Obama will concede defeat on legislative repeal and we'll finally see the end of this stupid law.