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The Supreme Court’s decision on Friday to allow the “don’t ask, don’t tell” policy to remain in effect is a victory for theory over reality and a defeat for America’s system of checks and balances.
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It also underscores the bravery and competence of Virginia Phillips, the federal judge who mustered logic and persuasive evidence in September when she struck down the statute enacting the policy. She did the same in October when she issued a ban on its enforcement.
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Sometimes the courts have to act when Congress lacks the sense or the courage to do so. The Senate could have joined the House in repealing the antigay law in September. It did not. Given the sharp rightward turn of Congress in the elections, how can the Justice Department now make that argument with a straight face?
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The filing itself reminds us how the executive branch has affirmed Judge Phillips’s wisdom. Mindful of her role in the system of checks and balances and with no concern about politics, the judge struck down the law and banned its enforcement. Given the choice of these two courses, the Supreme Court picked the wrong one.
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