U.S. District Judge Virginia Phillips has been accused of ignoring both the U.S. Constitution and precedent in her decision yesterday ordering the military to stop enforcing the "don't ask, don't tell" policy that bans living an openly homosexual lifestyle in the ranks.

The charges are coming from several sources, including Defense Secretary Robert Gates, who said Congress is the appropriate institution to make such a decision and even then only after the military itself evaluates its options and makes a recommendation.

The Associated Press reported Gates told reporters traveling with him to Belgium that action on the policy should be taken by Congress.

The AP reported he said, "It has enormous consequences for our troops."

But it was left to Elaine Donnelly, president of the the Center for Military Readiness, to explain the huge impact of the judge's arbitrary order.

"U.S. District Judge Virginia Phillips has proven what the Supreme Court has recognized several times: The judiciary is the branch of government least qualified to make policy for the military," Donnelly said.

"Judge Phillip's outlandish ruling, which would not withstand Supreme Court review, sweeps aside the well-established principle of judicial deference to the other branches of government, which is firmly rooted in Article 1 of the U.S. Constitution. (Section 8: 'The Congress shall have Power…to make Rules for the Government and Regulation of the land and naval Forces.')," she continued.

"Judge Phillips apparently sees herself as Supreme Judicial Commander of the U.S. Military, having reached her short-sighted conclusion after eight days of one-sided testimony from gay activists who failed to prevail in the legislative branch. It is absurd to suggest that a rogue district judge knows more than elected members of Congress," she said.

WND reported when Phillips issued a global injunction telling the military to stop enforcing the 1993 policy implemented by President Clinton, which allows homosexuals to serve only if they are not open about their sexual orientation.

U.S. District Judge Virginia Phillips previously had ruled that the policy violates the rights of homosexual military personnel.

An official with the U.S. Department of Justice told the Associated Press the decision was being reviewed, and there was no immediate indication whether an appeal would follow. An appeal is not mandatory, and observers suggest the DOJ under President Obama's supervision simply could allow the judge's ruling to stand.

Phillips' activism came in a lawsuit that had been brought in 2004 by the Log Cabin Republicans, an advocacy organization for homosexuality.

"In 1993 Congress conducted 12 legislative hearings and numerous field investigations, followed by hours of floor debate culminating in bipartisan, veto-proof majorities enacting the 1993 law. Unlike the Clinton administrative policy known as 'Don't ask, Don't tell,' the actual law clearly states, 'There is no constitutional right to serve in the armed forces.' (Section 654, Title 10, U.S.C., Finding No. 2)," Donnelly said.

"If the U.S. Solicitor General does not appeal Judge Phillips' order in the Log Cabin case, the Obama administration will have abandoned fundamental constitutional principles allocating power and responsibility for military affairs to the legislative and executive branches, just to deliver on the president's political promises to LGBT (lesbian, gay, bisexual, transgender) activist groups.

"White House officials are well aware that allowing the judiciary to take command of the military, or any action themselves to implement orders or regulations revoking the 1993 law administratively, would break faith with the troops and destroy bonds of trust that must exist between the commander-in-chief and the forces he leads," Donnelly said.

She noted Obama's Justice Department failed to present a case that defended the law on its face.

Instead, they relied on the long-standing principle of judicial deference in military matters, she said.

"This presentation in court obligates the Obama administration to file an immediate appeal," Donnelly said. "The district court order purporting to govern the military worldwide is so irregular and extreme, even the controversial Court of Appeals for the Ninth Circuit might reject it. The Supreme Court certainly will. Matters of constitutional principle and separation of powers go far beyond the question of professed homosexuals in the military. That issue is important to the future of the armed forces but less important than the question of who gets to decide.

"Department of Justice attorneys know this. We expect the administration to appeal and the Supreme Court to affirm once again that federal judges do not have the power to make policy for our military. President Obama must not surrender constitutional powers to the courts for reasons of political expediency, particularly when the Defense Department and Congress are in the midst of an ongoing review of the consequences of repealing the 1993 law," she said.

Joining the flood of criticism of the judge's far-reaching decision were officials with the Thomas More Law Center in Michigan.

"If Judge Phillip's order is allowed to stand, it will ultimately result in the destruction of the most effective military force in the history of the world," said Richard Thompson, the group's chief counsel. "We now have an all-volunteer military. Studies show that up to 24 percent of our military would resign when their term is up should open homosexuals be allowed in the military.

"Parents will discourage their young sons and daughters from enlisting in an organization that will ultimately be dominated by homosexuals and their agenda," he said.

His organization noted that 1,163 distinguished retired military leaders from all branches – including two former chairmen of the Joint Chiefs of Staff – have joined in a letter supporting a ban on homosexuality in the military.

They warn ignoring their concerns will result in a hit on the military's "morale, discipline, unit cohesion, and overall readiness."

"The primary purpose of our military is to win wars. Our military should not be used as a laboratory for social experimentation. We must not allow a political agenda to destroy our war-fighting capabilities. I believe Judge Phillip's Order leaves the Justice Department no choice but to appeal her over-reaching and ridiculous order," Thompson said.

The judge's actual decision said, "Defendants United States of America and the Secretary of Defense [are ordered] immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the 'Don't ask, Don't tell' Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment."

The criticism wasn't limited to just words, either. At the Pray In Jesus Name organization, run by Chaplain Gordon Klingenschmitt, a plan was proposed to fax letters demanding Phillips be impeached.

"Unable to change the law in Congress, liberals have resorted to judicial activism, forcing their sexual agenda on our troops against their will by injunction. Now the Obama administration must decide whether to appeal the case to the 9th Circuit Court of Appeals, but if the Justice Department led by pro-homosexual Attorney General Eric Holder refuses to do his duty and refuses to appeal, the military will likely obey the new injunction, harming our troops and national security forever," he wrote.

"AG Holder has just 60 days to appeal, but has already received two letters from pro-homosexual Senators Mark Udall, D-Colo., and Kirsten Gillibrand, D-N.Y., demanding he refuse to do his job and refuse to file an appeal to defend the 1993 law. With such power in hand, an opportunity exists for the Obama administration to abuse their discretion, and by doing nothing, help force their homosexual agenda through the courts, since they couldn't do so in the Senate, even when they held a 60-seat majority," he continued.

"Our only hope to defend our troops, it appears, is to petition other senators and congressmen to write AG Holder and demand he appeal the case. … We must also demand the Congress impeach federal judge Virginia Phillips, as Congressmen Steve King, R-Iowa, has already suggested today, saying 'Judges in this country are out of control, whether they sit on the federal bench or on Iowa's Supreme Court.'"

Last month, the Senate rejected by 57-43 a defense spending authorization bill laden with controversial amendments that would have promoted homosexuality in the military, permitted abortion on military bases and provided new ways for illegal aliens to become American citizens.

Robert Knight, an expert on homosexuality-related political issues and senior writer for Coral Ridge Ministries, said earlier that the judge's decision siding with those who promote homosexuality was "stunning."

"She has decided she is smarter than God, more than 1,163 retired generals and admirals who support the military's policy, the hundreds of congressmen and senators who voted for the law in 1993 and generations of military leaders who believed that morality affects discipline and that homosexual conduct undermines military preparedness," Knight said.

Analysts have pointed out that the judge appeared to confuse the law passed by Congress in 1993 explicitly banning homosexuality in the military with Clinton's executive policy, "Don't ask, Don't tell."

"'Don't ask, Don't tell' is not the law. The law states plainly that homosexuals are ineligible for military service, a point that is conspicuously ignored by this judge's ruling. What they and other judges who oppose this policy have attempted to do is to characterize the policy as the law," said one analyst.

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Oct. 13, 2010