Most Americans will probably never get used to judges substituting their own opinion for the law, but it was especially jarring yesterday when this one declared herself the final authority on U.S. military policy, despite never being elected for the job. As any credible legal expert would tell you, Kollar-Kotelly’s opinion was amazingly presumptuous for an unelected district judge, who — without the benefit of internal intelligence, the service chiefs’ counsel, and Defense Department data — is quite content telling the White House how to defend America.
It was a jaw-dropping move, suggesting that she knows better than the commander-in-chief, but that’s the unfortunate climate of America’s courts. Liberal judges have gone from rewriting the law to second-guessing our president in areas like national security, where the courts almost always defer to the executive branch. And this court doesn’t tiptoe — it leaps over the White House’s authority on military issues. To try to justify her overreach, Kollar-Kotelly argues:
“The Court by no means suggests that it was not within the president’s authority to order that additional studies be undertaken and that this policy be reevaluated. If the president had done so and then decided that banning all transgender individuals from serving in the military was beneficial to the various military objectives cited, this would be a different case.”
FRC’s Travis Weber was just one of the people stunned by Kollar-Kotelly’s ruling. “This type of judicial activism gives the court a self-conferred ‘veto’ of any presidential decision concerning the military the court simply thinks is unlawful. That’s not the way our constitutional order works.” Not to mention, he goes on, “This kind of judicial presumption is doubly harmful when done in the military context. The court acted as if all the objective facts supported its conclusion, but then naively relied on the legal filings of ideologically-driven interest groups to come to this conclusion:
“Contrary to Defendants’ assertion, this does not appear to be a case where the Court is required to pick sides in a ‘battle of experts.’ …To the contrary, the record at this stage of the case shows that the reasons offered for categorically excluding transgender individuals were not supported and were in fact contradicted by the only military judgment available at the time. Accordingly, unlike the district court in Rostker, the Court’s analysis in this opinion has not been based on an independent evaluation of evidence or faulting of the president for choosing between two alternatives based on competing evidence.”
At one point, the court actually suggests that people confused about their gender lack “the sort of political power other groups might harness to protect themselves from discrimination.” One look at the amicus briefs in this case — or corporate America’s fierce lobbying on the issue — shows how out of touch her argument is.
In one of the more astonishing parts of her 76-page liberal manifesto, Kollar-Kotelly single-handedly invents a new protected class for people who identify as transgender, despite admitting she “is aware of no binding precedent on this issue.” “Transgender individuals have immutable and distinguishing characteristics that make them a discernable class,” she insists. The “defining characteristic of a transgender individual is that their inward identity, behavior, and possibly their physical characteristics, do not conform to stereotypes of how an individual of their assigned sex should feel, act and look.” There’s just one problem: An unelected U.S. district court judge has absolutely no authority to create a special legal category for anyone! So while the Left is busy celebrating, rest assured. This case is just beginning.
Here’s another important point, FRC’s Peter Sprigg explains. “The judge fails to acknowledge that there is no ‘right’ to serve in the military. Almost all the precedents she cites are outside the military context, where there should be much greater deference to the chain of command, beginning with the president.” Just as importantly, Peter goes on, “she completely ignores the fact that the pre-2016 policy was based on physical and mental health issues. She approaches the whole issue of people who identify as transgender as being a ‘class’ that is being discriminated against, without even addressing the relevance of their health condition to their fitness for service.”
Kollar-Kotelly seems to think the military is just your run-of-the-mill office environment — when in fact, it’s a physically-demanding, life-threatening battleground. The goal isn’t to advance “tolerance” or help people on the path to self-actualization. It’s to fight and win wars. And that mission is severely compromised when activist courts try to force the military into accepting unstable recruits in the name of “fairness.” I’ve got news for liberals: the military isn’t fair! If you don’t believe me, try to enlist with a mouthful of cavities or flat feet. In the end, it’s not our leaders’ responsibility to turn Americans into people fit to serve. It’s the military’s job to find people who already qualified to do so.
That’s not discrimination. That’s war.
Tony Perkins’ Washington Update is written with the aid of FRC senior writers.
Also in the October 31 Washington Update: