Court Creates More Questions than Answers in Blocking Transgender Ban
This week US District Judge Colleen Kollar-Kotelly enjoined the US military from implementing a ban on enlisting transgenders. Interestingly, the ruling claimed the US military opposed its own policy [emphasis added]:
The Court finds that a number of factors — including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself — strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.
The ruling is interesting for a couple of reasons — reasons which indicate it will either easily be overturned or will otherwise portend a new relationship among the judiciary, the US Constitution, and the US military.
The plaintiffs — described as “current and aspiring service members who are transgender” — claimed President Trump’s directive denied them “equal protection under the law”.
While the judge indicated she believed the Plaintiffs would ultimately succeed, the core foundation of the lawsuit is ridiculous. The US military is not required to enlist every person who applies, yet the court is essentially saying it must. Even if the case does not outright grant every person the “right” to join the military, it does open up the military to litigation by every person or group who thinks they want to join.
The US military should not be treated like a jobs program, and it should not be a petri dish for social experimentation.
Ironically, the Judge preempted the easiest rebuttal to her ruling: Goldman v Weinberger. Despite Rabbi Goldman having an explicit right protected in the US Constitution, the US Supreme Court ruled in the mid 1980s the US military had the authority to restrict that right. (By contrast, this current case is far weaker, because there is no right — in the Constitution or anywhere else — to sexual behavior or transgenderism.)
Awkwardly, Judge Kotelly claims Goldman isn’t relevant because the military itself has rejected the “underlying” concerns of the policy (whereas with Goldman, the military advocated for the restriction on rights). The Judge thus portrayed the ban as merely President Trump’s policy, not a military policy.
That is flawed for two reasons: First, per the US Constitution, President Trump is the Commander-in-Chief of the US military. It is inaccurate for the Judge to cite the “military” objecting to a policy set by President Trump, because President Trump is authorized to speak for the US military.
Second, Judge Kotelly cited the former Secretary of Defense as the source for the military’s rejection of the Trump policy. But Secretary Carter was a political appointee in ideological opposition to the policies set by the current administration.
President Trump was elected to enact — and reverse — the very policies he is executing.
The Judge seems to be saying, in essence, that the US public cannot elect a new leader to change the policies set by a former leader. There is nothing in the US Constitution to support that implication.
The US military has, since its inception, been selective about who served in its ranks (even when it was filled by draft, and even when it reduced that selectivity due to manning shortages). It is absolutely understandable and defensible that the military might need to — and be allowed to — curtail rights to execute its mission of defending the Nation. Still, where the military does restrict rights, it should do so in accordance with the law and the US Constitution.
And that’s where the transgender issue falls apart.
In Goldman v Weinberger, the US Supreme Court rejected an Airman’s plea for protection of his constitutionally-protected free exercise rights. In this current Doe v Trump, Judge Kotelly is attempting to grant a person’s plea for a “right” not recognized anywhere — that is, the “right” to have a cognitive disconnect between one’s physical state and one’s mental state, and to serve in the US military despite that condition.
As strained as it may seem, the “Doe” Plaintiffs may yet prevail. After all, we are living in a society where a fictional, morally relativistic “sexual liberty” is explicitly advocated as superior to the explicitly enumerated and protected religious liberty. (That’s a position, by the way, advocated by the woman who almost became the President herself.)
And that will be yet another tragic fall for the military and American society.
There is hope, of course, given the current state of the US Supreme Court and the fact that President Trump is currently filling a plethora of seats in the judiciary — the same judiciary that is currently undermining his current policies.
Still, our ultimate hope isn’t in President Trump, or the judiciary, or even man. Rather, we have One Hope. A moral Nation and a moral world might seem desirable — some would argue it might make the Christian’s walk easier, or more people open to Christ’s sacrifice. But the opposite could be true.
Regardless of the state of society, we run the race set before us, and hold fast to our faith.
There is one body and one Spirit — just as you were called to the one hope that belongs to your call — one Lord, one faith, one baptism, one God and Father of all, who is over all and through all and in all.