It has been widely reported that in 2003, Elena Kagan wrote that the “Don’t Ask, Don’t Tell” policy regarding gays in the military was “a moral injustice of the first order.”
The first order? Really? Surely there are some implicit qualifiers in there. When you consider genocide, mass rape, sex trafficking, murder, slavery, Jim Crow, and a host of other high crimes and injustices, not letting someone volunteer for the military seems decidedly not first order. I’m not even sure it is second or third order.
Perhaps if we constrain the discussion to moral injustices that are actively being contested these days, her statement makes more sense. But not really. Even if I imagine myself an American leftist, I can’t quite come up with first order. There would be things like abortion, contraception, voting rights, fair housing, collective bargaining and a host of other “rights” ahead of gays serving in the military.
I can’t serve in the military because I’m too old and too fat. Certainly this is unjust discrimination because there are definitely assignments around the world where I could make a positive net benefit to the cause, and if I had a strong desire to serve, I would be upset about it. The military disagrees with me. Maybe discrimination based on sexual orientation is more serious than age discrimination or weight discrimination, but how much more?
I can understand why people feel passionately about the issue, and I don’t want to debate here the merits of the policy one way or the other (especially since it is mostly dead). Rightly or wrongly, the military makes policies it thinks will improve the performance of the military. Certainly they are capable of unjust discrimination, and perhaps the policy really is unjust, but first order? (Forcing gays to serve in the military might be first order.)
I’m not a moral philosopher and would hesitate ranking moral injustices that exist in the world, but this one seems pretty far down the list.