ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing September 14, 2010, on

If you want Obamacare declared unconstitutional in federal court, then you should be alarmed about recent court rulings involving same-sex marriage and homosexuals in the military. These issues will stand or fall together in federal court.

By now everyone’s heard of Judge Vaughn Walker’s decision from the federal district court in northern California, declaring a federal constitutional right to same-sex marriage in Perry v. Schwarzenegger, and striking down part of the California Constitution defining marriage as between a man and woman. That case is now before the Ninth Circuit federal appeals court, where arguments will be held December 6.

Fewer have heard of Judge Virginia Phillips from the federal district court for central California. On Sept. 9, 2010, she struck down Congress’ Don’t-Ask-Don’t-Tell law. This decision is shocking and outrageous, far worse that the California same-sex marriage.

That’s not to say that this military-law decision in Log Cabin Republicans v. United States has more of an impact on society than redefining marriage. After all, marriage is the fundamental institution of human civilization.

What makes Log Cabin worse is the judicial interference in the military. As Judge Phillips acknowledges in her decision, the Supreme Court has repeatedly held that courts must give special deference to the president and Congress when it comes to the military.

This rule stems from the fact that judges have no training or experience in national security, and lack access to classified information that informs the decisions of Congress and the president on questions of military readiness.

But then she completely ignores that rule by declaring Don’t-Ask-Don’t-Tell unconstitutional. Even though President Obama opposes that law, it’s still the law unless Congress repeals it.

There is no constitutional right to serve in the military. Someone who is blind or hearing-impaired cannot serve in uniform. In fact, having foot problems or even allergies will disqualify you from being able to serve in the military.

So it is utterly outrageous–a level of judicial activism rarely seen in America–for a federal judge to invoke a supposed right to homosexual conduct, declare it a fundamental right (which the Supreme Court never did when it legalized sodomy in the 2003 case Lawrence v. Texas), and use it to strike down a military law.

The Perry and Log Cabin cases, taken with the recent Massachusetts federal decision striking down the Defense of Marriage Act (currently on appeal), paint a picture of astounding judicial activism.

The entire homosexual agenda is moving forward in federal court, where judges are disregarding the will of the American people, as expressed through the democratic process. Agenda-driven judges are doing this by declaring brand new constitutional rights not found anywhere in the words of the Constitution, mowing down every law that stands in their way.

There are those seeking to move the Republican Party away from these issues, and even trying to define conservatism as being concerned exclusively with economic and reach-of-government issues. These decisions put the lie to that notion.

An agenda-driven judge is an agenda-driven judge. A judge who is willing to ignore the plain meaning of the Constitution in one case doesn’t think twice about doing it in another case.

Is Obamacare unconstitutional? You bet it is. But a judge who is willing to declare a constitutional right to same-sex marriage or a right to serve in the military is also willing to declare a constitutional right to government healthcare.

The same goes for free speech when it comes to laws such as McCain-Feingold in the recent Citizens United case. Or for the right to bear arms as a fundamental right guaranteed to individual citizens, as in the recent Heller and McDonald cases.

You cannot compartmentalize how you interpret the Constitution. You either believe you are bound by the words of the constitutional text, and interpret those words according to their original meaning, or you do not.

Maybe you don’t care about same-sex marriage or Don’t-Ask-Don’t-Tell. But if you care about anything in the Constitution, you need to be outraged whenever an unelected, unaccountable, life-tenured judge overrides the will of the people in the name of the Constitution, when in fact the Constitution never speaks on that issue. Judges must only strike down laws when the Constitution requires it.

Voters are waking up to the danger that agenda-driven judges pose to our constitutional republic. Truly conservative candidates need to make this an issue for the campaign trail.