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In a suit brought by the Log Cabin Republicans in federal court in Southern California, Judge Virginia A Phillips has declared that the policy of the United State military known as Don’t-Ask-Don’t-Tell that bars gays and lesbians from service violates the First Amendment and is thus unconstitutional. Judge Phillips will issue an injunction barring the Department of Defense from enforcing DADT, which is expected to be appealed by the government.
A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don’t ask, don’t tell” policy violates the 1st Amendment rights of lesbians and gay men.
U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.
An update to the LATimes blog story on this ruling highlights the political schizophrenia of the Obama Administration on DADT:
President Obama has called the ban a threat to national security, and the U.S. House in May passed legislation to repeal “don’t ask, don’t tell” if an ongoing Pentagon study determines the military can adapt to the change without harming defense readiness.
Despite Obama’s criticism of the policy, the Justice Department vigorously defended “don’t ask, don’t tell’’ and even tried to undercut the case with a technical legal challenge over whether the named plaintiffs were dues-paying members of the organization that filed the lawsuit: the Log Cabin Republicans.
92 Comments
Dayam, Teddy, gotta luv those judicial activist Judges… ;-)
nofuckingway!
Yesfuckingway!
Way!!!!!
An amazing piece of news, indeed.
Just in time for Fleet Week in San Diego.
From the Dallas Voice:
ha!
Shhhhh, don’t let belch know.
Which raises an important point, one that the organizations working with gay and lesbian servicemembers mention EVERY time there’s news on DADT, and that I should probably repeat here:
Freaking republicans are trying to take gay rights issues as their own. WTF?
Heh.
I read through the ruling. It is a lot better than the LA Times piece relates. They only noted 1st Amendment grounds which, alone, would be perhaps a bit weak. But the ruling is really premised on Due Process with a 1st Amendment chaser, which is a LOT better. It is not the most eloquent opinion – won’t be mistaken for a Vaughn Walker creation – but it is solid and basically kicks the crap out of the government and DOJ at every turn possible.
Very nice.
Yup. Sit tight for now.
Though I’d love to see how the DoJ would handle it if, say, every single closeted soldier in Afghanistan or Iraq suddenly came out. Heh heh heh.
The DOJ will appeal, just in time to further annoy the LGBT community. Why let them want to come to the pols?
From the Guardian (UK):
Of course it takes a foreign media source to have the guts to properly characterize Obama’s inaction as a “cautious and drawn-out attempt.”
A contingent of the GOP fought and won in court for civil rights in opposition to a contingent of the White House.
D’oh-bama, he’s our man. He won’t do it but the Republicans can.
Real life sitcom.
bet it is more that 10%. The military will be very surprised.
Hey Kelly, how’s Belch’s knee ?
Teddy ! More positive rulings to come from Judges over the next 1-2 years, I’m sure.
Sheesh, somebody already updated the Judge’s Wikipedia entry with this! I was trying to find out if she was conservative, liberal, etc (she was appointed by Bill Clinton. That’s all I could find.)
Is the DOJ required to appeal the declaration, or is it optional? It will be very interesting to see what The Fierce Advocate does in response to this. Will O view this as an act of impertinence or defiance, or will he let this be the mechanism by which this country catches up to other countries?
I also noticed in all the articles I’ve read about this (tabbed browsing is great), the word “declared” is used instead of “ruled”. Is there a difference? It is legalese after all.
Yet one more exonerable step forward for justice for all.
Bitchen.
I’ll raise a merlot to that one.
*clink*
Yes, and they are succeeding.
This is very dangerous ground for the GOP.
Remember when the Democrats became the Peace Party in the late 1960s and early 1970s as soon as the President was a GOP? Exactly the same thing could happen with peace and gays if the Democrats aren’t careful.
The fundies got no where to go, right? Who are they gonna make music with except the GOP, even if some of them like Meghan McCain and Steve Schmidt urge the party to like Teh Ghey?
Just made this comment over at the Huffington Post. I’m not expert, so somebody should correct me if I’m wrong.
—————————-
To people saying, “Don’t appeal!” It’s not that simple. The Justice Department has a policy of defending the constitutionality of all laws passed by Congress and signed by the President. This is because Congress and the President have essentially ‘signed off’ on the constitutionality of the law. The Justice Department cannot just take it upon themselves to reject the judgement of the President and Congress.
It is extremely rare for the Justice Department to just not defend a statute. It would extraordinary for them to do so. To quote Marty Lederman, the Deputy Assistant Attorney General, from a post on Balkinization:
There are … exceptions. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn’t really an “exception” to the “rule” as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute’s defense, other than asking the Court to overrule its governing precedent. The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself… . The third … category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the “must-carry” provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)
You know I would love it if you’d put your thoughts in an expanded version of that comment, having read the decision yourself, Counselor.
inexorable?
OMG, that would be down right strange. Gay, peaceful goppers. Life is indeed a dynamic process.
This is crazymaking. Dems better put gay rights on the table right NOW!
I meant, of course, that it’s dangerous ground for the DEMOCRATS.
Their party leader, our president, is being eclipsed by Republicans on gay issues.
Once the injunction is issued, couldn’t soldiers come out without punishment? Or would the fact that they are known to be gay be enough to discharge, if the injunction is lifted or the judge’s ruling is overruled?
The governor and attorney general of California elected not to defend Prop 8.
There’s ample precedent. If Obama wants to end DADT, this is his quickest route. And he can blame the judge!
Serving members of the military should NOT come out without clear direction from their command that there will be NO repercussions. This is very important, and should be shared far and wide.
This decision changes NOTHING for those serving silently.
Indeed.
Here’s a link to the ruling.
A couple of highlights:
[pdf pp. 71ff.]
Not only did the DOJ not prove their case, but they proved the plaintiff’s case. Nice job!
[pdf p. 85]
Sounds like perhaps the DOJ took a page from the Prop 8 DIs. “Evidence? We don’t need evidence.”
We KNOW Obama is to the right of Republicans in Congress in the 1990s on health insurance
reformgiveaways at the very least. Don’t sound so shocked that the Log Cabin people are to the left of him on this. I may have to take some of the things I’ve said about them back.Skimming through the ruling. A piece, personally amusing to me:
Umm hmm. Gimme yer, felons, yer crackheads, yer dubious operators, but keep yer damn homos out this MAN’s Army!
I cannot believe that Obama (or his “braintrust”) have been so stupid.
Hm. I’m not sure if the Governor and AG of California have the same policies and responsibilities as the President and Justice Department. I mean, Obama could definitely come out and say DADT is unconstitutional, which would satisfy ‘category three’.
But I always assumed that the executive branch is compelled to defend _all_ federal laws, except in very rare and extraordinary cases. I guess I’ll wait until the law blogs wake up. I’m sure Volokh will have something to say about it.
Wrong. The Judicial Branch is a co-equal branch of government. Doesn’t anybody who waves the Constitution around ever actually READ it?
There is an AP story, via the WaPo, that provides no new information, so I won’t risk the AP’s wrath by copying any of it over here.
One of the posts about this over at the Great Orange Satan pointed out that they’ll actually put DADT investigations on hold while the
victimsubject is deployed. Which kind of undercuts the government’s argument that Teh Gay destroys unit cohesion and all that.Believe it.
Ah, yes — the “Group W Bench” folks made famous by Arlo Guthrie.
Ah, okay. Thanks for clearing that up. I’m not familiar with all the ins-and-outs of DADT.
Surely you jest; the Obama Justice Department? The DoJ that’s told the president he can assassinate American citizens without due process?
Reading the constitution is so pre-1.20.09.
We simply must not endanger any serving members of the military, who could misconstrue the general celebration for a permission slip that has NOT been granted. It is extremely important that this be relayed to any servicemembers any of us know, whether gay or not.
One slip from a friend who knows can endanger a career; it’s another part of this insanity that the military members most affected by this ruling should avoid any comment on or discussion of it except with those they trust with their career.
Perfect. Those miscreants can kill folks and cut off their fingertips. What a patriotic switch.
Teddy!! A chink in the armor of the Intolerant, selfish, homophobic bastards!! Great News.. now they have to end this atrocity ASAP!!! We all will be better off when all All FREE to be who they are!!
The opinion noticed that little tidbit [pdf p. 64 ff.]:
“It defies logic” is a phrase that could have been used repeatedly throughout this opinion to describe the justifications put forward for DADT. Nice of the judge to notice this!
Having been put out of the service myself prior to DADT, I feel it’s important to point out that this ruling ONLY seems to cover gays and lesbians. Transgendered people can still be thrown out with impunity and without the rank and benefits they’ve earned.
without reading the opinion, that’s what struck me initially — that 1st amendment is weak. off to read it.
I still fail to understand why these suits are only on behalf of gay and lesbian servicemembers. Have you ever heard a rational explanation from any of the organizations favoring repeal in that regard, Margaret?
I hope it’s not yet another example of “we’ll pick you up later” because we all know that never happens.
Semi-OT. I kind of smiled and maybe giggled that Twitter got a shout-out. [pg 67 of 86]
but hey. maybe now FOX news has a story other than the “Ground Zero Mosque” to beat the shit out of.
I got yer law blog right here. Yes, the DOJ could absolutely refuse to appeal. But it will not happen and, quite frankly, I don’t know that you would want them to if you are interested in eliminating DADT. An unappealed final order from this court would bind only the Central District of California, so you want this to go up the chain to at least the 9th. And it will be.
I think it’s great that the Log Cabin folks brought the case. Gay rights are certainly the civil rights fight of this generation.
No I haven’t. The military uses the old “unit morale/cohesion” saw because being transgendered isn’t against the UCMJ.
Of course that’s what it is. People like John Aravosis consider concern about Transgendered civil rights as being “overly PC”.
I think it is because DADT doesn’t address transgendered members of the military. (DADT wiki here.)
Presumably other parts of military law speak to transgendered issues.
“We’ll pick you up later” doesn’t seem to me to have been part of this.
Won’t this get reversed though? I’ve always viewed my li’l ol’ gay rights through the lens of the 14th Amendment, which is not present in this decision.
If the 1st is novel enough to work, I’m fine with that. But it’s not passing my sniffer, frankly.
[jaded, picks back up the merlot after writing this comment]
hey Bmaz, i just looked at the 1st page and it says 1 of 86 pages. are theere exhibits or something i can skip? i just don’t feel like reading an 86 page opinion. there’s a football game on.
Lerninz is hard.
A search for “transgender” in the pdf of the legislative text of the law brings up *crickets*.
ok. i see. i’m just gonna skip the evidence/testimony.
So, DOJ will probably appeal this, and presuming that their appeal fails, what comes after that? It seems that there is always another hurdle. Each vote, verdict, ruling, etc, paves the way for the next hurdle we have to jump. When a simple executive order could have stopped enforcement of DADT. If O serves one term, DADT would sit unenforced for 2 years. After that much time, I think even a Republican congress may be reluctant to re-instate it.
I believe I said that. But what the hell do I know? I just lived it.
this is interesting stuff.
I also pointed out that it isn’t covered in the UCMJ but again, why believe the woman who went through it when you can speculate?
I thought you were asking why the RULING only deals with GLB and not T. That’s what I was replying to. If there’s a “we’ll pick you up later” aspect to this, it belongs to the Log Cabin Republicans who didn’t make T’s a part of their suit, and not the judge.
So what, exactly, is the portion of the UCMJ that got you drummed out?
Why would a Republican Congress be reluctant to reinstate DADT, if the President were to stop enforcement?
Anyways, id the appeal fails, couldn’t they just appeal to the Supreme Court? I mean, that’s where you want it to go, right? There aren’t any more hurdles after that, if the Supreme Court affirms.
I’m trying not to be annoyed here but it’s like you are skipping everything I write, like it’s irrelevant. You seem to hold Teddy’s opinion in much higher regard than my own experiences. I believe Teddy is an admirable person but he is not transgendered, he has not served and he has not been thrown out because of his sexuality. My comment was:
Again, I’m not trying to be a bitch about it but why am I having to repeat myself?
It is not just the 1st, the decision is actually founded primarily on Due Process; in this case, the due process clause used is from the 5th Amendment, but that is effectively identical to the co-terminous provision in the 14th.
Hey Peg!
Educate’em when there’s a gap:
Which is really the point.
The tip of the sword of Stonewall were trans and cross dressers. The first fingers and “fuck yous” to the Powers That Be, were painted nails, and didn’t waiver an inch or take no for an answer.
So why is it always for them to be last in line? It’s total bullshit.
There is indeed a victory in the ruling, but it is structural for LGB, as the T doesn’t even come to the structure.
This is the problem.
I read your comment, and to me, the phrase “unit cohesion” is a general phrase that gets used in a variety of ways, some very specifically legal and others more vague. You said being transgendered was not against the UCMJ, which surprised me, so I asked what part of the UCMJ was aimed at you. Not what “old saw” but what legal argument.
Obama is an idiot for having failed to see this developing situation and its likely outcome. Instead of leading the way and declaring an end to DADT, Mr. Fierce Advocate set himself up to be run over by a tank by deferring to the Defense Department and its incredibly fucked up, over the top, and beyond stupid questionnaire that’s a transparent and desperate effort to solicit homophobic responses. No matter what he does, he looks indecisive, dishonest, weak, and exposed without political cover. Even though the government would usually appeal in this type of situation, regardless of the underlying type of case, as others have pointed out, a decision to appeal would put the lie to his claim of being a fierce advocate at a time when he seriously needs to mend fences with his base of support and show some courage and human decency.
The more I watch Obama the more convinced I become that he just isn’t very smart or clever.
Yep and after all of these years, it’s still a sore spot for me. You must realize that I was good enough to be INVOLUNTARILY EXTENDED to serve during the first Persian Gulf war but “bad” enough to lose two pay grades, half a month’s pay for three months, (the months I served in the Persian Gulf as it turned out), and all of my benefits. They even tried to strip me of my good conduct award. Nope, I don’t think I’ll ever be less bitter about it.
Thanks for being you though. :)
I’m sorry, see my 73. This wrath isn’t directed at you. In short, they never charged me with a crime. Mine was an administrative discharge which doesn’t require charges. In the years before DADT, individual unit commanders had an enormous amount of latitude in these areas. Commander Punches didn’t have a problem with me but Commander Forrest who relieved him when he got promoted, did. The short version is they didn’t have an excuse because they didn’t need one. I could have fought but my career was over the moment the decision was made that he hated fags.
Who know what future Republicans will or won’t do, but if DADT has not been enforced for two years or more, that means the Pentagon will have two years to untwist its panties, and gays and lesbians will have 2 years to serve, to gain rank, to further make the case that “unit cohesion” is not a sound argument in favor of re-instating DADT.
With the likelihood of congressional gridlock, the Republicans will have to expend political capital trying to re-instate a policy that, in practice, will have been dead for two years. I think they may be reluctant to want to spend the time and effort to beat what is likely to be a dead horse by then.
Of course, that all hinges on 1) the fantasy that DADT is “stopped” right now, this moment, by executive order; and 2) The Republicans control congress when the executive order expires; and 3) The Republicans that control congress are not totally insane.
Yup.
If the Republicans vote with the fervor that all the polls show them as planning on doing, and the indies and Dems stay home, a crazy Congress is guaranteed.
Good for Virginia. God bless her.
Margaret, I hope you know I would never presume to speak for you or co-opt your experience. I think there was some overlap between comment and response in this thread that left you feeling you weren’t heard.
I had stepped away for dinner and to watch the horrific San Bruno explosion online — 12 homes destroyed, folks showing up at hospitals horribly burned — and so I got distracted from the thread.
But please understand you have my complete support. I hope you’ll take every opportunity to share your experience while remembering that not everyone here knows you’ve lived it. So when you begin to educate people about it, please understand that some of us may not know exactly how Transgender fits into a DADT discussion.
Thank you for your service to our country, and thanks for your contributions here at FireDogLake.
Damn, I missed this one first time around . . but I just sparked a doozy reply.
“Why, are you going?”
*G*
ROFLMAO!!!!
Sigh. Ok, better now.
Sorry Kelly, that door woulda let a John Deer Tractor And Trailer thru it, I could NOT let it go to waste.
*G*
Other than cheap and mindless sex (which I was never really involved in despite my desires) or endless drinking and pickin music amid wood smoked fires and big pieces of red meat, coupling is the best thing that ever happened to me.
You often make ME laugh, with coupling stories.
SOME things, couple wise, transcend gender. Hell, most all things, what am I thinkin.
*G*
Coupling’s HARRRRDDDD!!!!
Just look at the divorce rates!
And I meant it, any couple that’s hacked it out for 20 years, 10 years, more, less. Any couple that’s trying to hack it out, it’s hard work and takes more than most humans have, until faced with it.
Do they change, or not.
Hard shit. Takes forever sometimes.
Best thing I ever did.
Heh, yeh, likely.
But, I think you’ll find my choice regarding legality actually fits, despite my word game massive fail!
Thanks Margaret.
I meant inexorable.
Sigh.
Can I get ya a wee bit of a short glass of Merlot for yer troubles, lassie . . . tis a gentle prodding ya wield, thanks . . .
*G*
Just. Walk. Away.
We’ll walk with all y’all.
Have before.
Fuck the Dem’s.
So Teddy, is this that pivotal moment in history?
The Prop H8, Judge Walker, now this revelation today.
Will this be the The Weight that forces a president’s hand to do THE RIGHT THING?
Like what happened to LBJ?
If the LGBT get their due, their day in the sun, and walk with us all under the law, that changes a LOT of social dynamics, and the pressure that come with them.
I’m just dreaming here, not really got evidence to say so but.
Could the LGBT Cause open the doors for the rest of the power/control issues we the people have lost?
Could YOUR cause, be the gateway cause, to fight the corporate fascist control over ALL our lives?
Imagine that one.
*bows*
Yeah, you offer great thoughts here . . .
I would NOT want my enthusiasm and unbridled joy to cause any pain to any LGBT members of the Armed Forces.
Well spoken, and you should KEEP sharing that, as should we all, to prevent younger and less informed people from doing something impromptu with the recent news.
You are a nurturing soul, hoss.
It has always shown, and it shines now.
Good on you.
As much as I support the underlying premise of the decision DADT is wrong, I still don’t think it’s up to the judiciary to make this call. This is a political question, and both legislative and executive branches are charged with determining what harms/helps the armed forces, not an Art. III court. Not to mention grounded in the First Amendment, I would think it would be some kind of Equal Protection or Due Process argument.
Though this might finally force President Obama into some kind of progressive act, or he will bargain again with the GOP and some DADT mutant hybrid will be born.
Thanks, dude. Appreciate your kindnesses, always.
“It defies logic” is a phrase that could have been used repeatedly throughout this opinion to describe the justifications put forward for DADT. Nice of the judge to notice this!
Most bigotry defies logic. It’s the stuff of emotions and the heart, not the stuff of thinking and the brain!
A contingent of the GOP fought in court for civil rights with the JusticeDPT. D’oh-bama, he’s our man. He won’t do it but the Repubs can.
turned it into a twitter. Thx manwitha chute
Barry will not let this stand.
some history and summary of the decision: http://bit.ly/cNdw5e
Thank you Log Cabin Republicans.
Glad to see someone is fighting for our rights as HRC has cocktails with Obama who has repeatedly defended both DADT and DOMA in court.