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News & ArtsThursday, September 9, 2010
Homo Federal Judge Declares DADT Unconstitutional
Posted by Dan Savage on Thu, Sep 9, 2010 at 6:58 PM
Those damn activist judges and their constitutions and their coequal branches of government and shit:
A federal judge in Southern California has declared the U.S. military's ban on openly gay service members unconstitutional. U.S. District Judge Virginia Phillips on Thursday granted a request for an injunction halting the government's "don't ask, don't tell" policy for gays in the military. Phillips says the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services.... The injunction was sought by the Log Cabin Republicans, a 19,000-member group that includes current and former military members.
This may be the only useful thing the LCR has ever done.
2
LCR has served us well for years now by bleeding away the weirdest weirdos from our community meetings, leaving us to grapple only with the Freedom Socialists and Boe.
3
It is always good to be useful. And, this will be interesting to follow.
"A federal judge in Southern California declared the U.S.
military's ban on openly gay service members unconstitutional
because it violates the First Amendment rights of gay and
lesbians.
U.S. District Judge Virginia Phillips granted a request for
an injunction halting the government's ''don't ask, don't
tell'' policy for gays in the military.
But government lawyers argued Phillips lacked the authority
to issue a nationwide injunction and the issue should be
decided by Congress." NYT
"A federal judge in Southern California declared the U.S.
military's ban on openly gay service members unconstitutional
because it violates the First Amendment rights of gay and
lesbians.
U.S. District Judge Virginia Phillips granted a request for
an injunction halting the government's ''don't ask, don't
tell'' policy for gays in the military.
But government lawyers argued Phillips lacked the authority
to issue a nationwide injunction and the issue should be
decided by Congress." NYT
5
"This may be the only useful thing the LCR has ever done."
and true to form... it is probably going to be a tacky window dressing ruling with no teeth.
because the DOD will not take orders from any branch but congress(house and senate in concert) & perhaps sometimes, when finally at long last kicking and screaming made to, the executive.
easier to move a mountain to a gay mohhamed than get them to reason on anything.
it is going to happen, but probably not this way.
though, i hope i am wrong.
and true to form... it is probably going to be a tacky window dressing ruling with no teeth.
because the DOD will not take orders from any branch but congress(house and senate in concert) & perhaps sometimes, when finally at long last kicking and screaming made to, the executive.
easier to move a mountain to a gay mohhamed than get them to reason on anything.
it is going to happen, but probably not this way.
though, i hope i am wrong.
6
I was curious about where the LCRs came from. According to their site, the name is a reference to Abe Lincoln, and they formed after a bunch of gay CA conservatives successfully convinced former Governor Ronald Reagan (?!) to help fight the Briggs amendment, which would have banned gays and lesbians from teaching positions.
So, I guess you could argue this is the second useful thing they've done.
So, I guess you could argue this is the second useful thing they've done.
8
As a gay veteran, I'm glad to see DADT struck down. As a lawyer, I wish it had been a better opinion.
The substantive due process seemed like it relied too strongly on anecdotal evidence to rebut the state's claims. And a First Amendment claim? The military is a profession where you MAY NOT publicly criticize your elected officials. Every soldier's First Amendment rights are reduced the moment he enters the service.
DADT is wrong, it is stupid, and it exposes good, gay soldiers to needless harassment and possible blackmail. Unfortunately, I still think this will be an easy opinion to overturn.
The substantive due process seemed like it relied too strongly on anecdotal evidence to rebut the state's claims. And a First Amendment claim? The military is a profession where you MAY NOT publicly criticize your elected officials. Every soldier's First Amendment rights are reduced the moment he enters the service.
DADT is wrong, it is stupid, and it exposes good, gay soldiers to needless harassment and possible blackmail. Unfortunately, I still think this will be an easy opinion to overturn.
10
I don't get how this judge's ruling is relevant. Lots of things about the armed forces aren't constitutional - many rights are given up when you agree to serve in the armed forces. This seems like a matter for congress to decide, not a judge.
11
@10 wouldn't it be ironic if the armed forces are neutered in general on Constitutional grounds? I would have no problem with this.
Our ethics and the entire point of our nation--that document's rules--are not things we turn on and off when convenient. Our values are more important than our role as Self-Appointed Defender of the Western Earth.
Good ruling. Make it stick.
Our ethics and the entire point of our nation--that document's rules--are not things we turn on and off when convenient. Our values are more important than our role as Self-Appointed Defender of the Western Earth.
Good ruling. Make it stick.
14
@14 Gays don't have to be democrats, they just shouldn't side with people who hate them and want them to burn in hell. The LCR are a bunch of spineless self-haters who try to make life worse for gay people who have the balls not to be ashamed of the way they were born.
16
We're cynical because we care. And because we're not stupid.
But, hey, so long as actors like Phillip Seymour Hoffman love our music scene, we're golden here.
But, hey, so long as actors like Phillip Seymour Hoffman love our music scene, we're golden here.
18
Of course, if Dan had had his way DADT would have already been repealed by executive order and we'd have never gotten this potential LEGAL PRECEDENT on the books for future cases.
(Proving, once again, that sometimes you can get more out of doing things in a long & thorough way, rather than just the fastest possible.)
(Proving, once again, that sometimes you can get more out of doing things in a long & thorough way, rather than just the fastest possible.)
19
This is a great thing but I can see it being overturned. The Prop 8 appeal was denied, in part, because the people wanting the appeal could show no harm to themselves, none of them planned a same-sex marriage. Are any of the LCR members in the suit planning to join the military, or currently serving and fear being discharged?
20
@20
Standing is not the problem. The opinion very explicitly goes over that issue and LCR is allowed to bring suit on behalf of members who have been discharged and John Does who are currently serving.
The problem is that it's just not a very good opinion. The First Amendment claim is ridiculous considering how much a soldier's speech is constrained whether he's gay or straight. Likewise the substantive due process argument boils down to the court saying "the state says this will hurt unit cohesion, but here's one gay soldier who says his troops love him." DADT is a terrible policy, but unfortunately that doesn't make this opinion any stronger.
Standing is not the problem. The opinion very explicitly goes over that issue and LCR is allowed to bring suit on behalf of members who have been discharged and John Does who are currently serving.
The problem is that it's just not a very good opinion. The First Amendment claim is ridiculous considering how much a soldier's speech is constrained whether he's gay or straight. Likewise the substantive due process argument boils down to the court saying "the state says this will hurt unit cohesion, but here's one gay soldier who says his troops love him." DADT is a terrible policy, but unfortunately that doesn't make this opinion any stronger.
21
@11, I think you misunderstood my point. In the armed forces, your right to free speech is curtailed in many circumstances. Your right to bear arms is also curtailed: if the army says you may not handle a firearm, you can't do it. There are lots of other examples.
I'm not saying DADT is good or bad, just pointing out that the constitutional rights given to all citizens of the US do not necessarily apply to members of the armed forces.
I'm not saying DADT is good or bad, just pointing out that the constitutional rights given to all citizens of the US do not necessarily apply to members of the armed forces.
22
I'm no lawyer, but I am a veteran. My recollection is that the military claims that soldiers do not give up any of their basic constitutional rights. They have a separate military justice system, but that system is supposedly still subject to the same constitutional oversight as civilian law.
Please correct me if I'm wrong. Cite a reference where military personnel are not protected by the constitution.
Please correct me if I'm wrong. Cite a reference where military personnel are not protected by the constitution.
23
@17 for the win.
Because self-referential posts are always winners.
I'm just trying to get Dan's comment count down.
Because self-referential posts are always winners.
I'm just trying to get Dan's comment count down.
24
@23: Nah, the self-referential posts are unintentional.
Last night, someone spammed a poorly worded advertisement for some hair product on EVERY FUCKING THREAD (it was originally post #13 here), and I guess the mods woke up and deleted it outright, ratcheting the comment count down.
Last night, someone spammed a poorly worded advertisement for some hair product on EVERY FUCKING THREAD (it was originally post #13 here), and I guess the mods woke up and deleted it outright, ratcheting the comment count down.
25
@22
It's not that the constitution doesn't apply to veterans, but that the court considers the context in any case constitutional issue. For example, you have a First Amendment right to say what you like, but that doesn't mean you can disclose national security secrets or shout your opinions through a bullhorn at 3am in a residential neighborhood.
Likewise, whenever the constitutional freedoms of a soldier are at issue, the Court is going to be very deferential to the military's need for discipline and conformity. This is especially true now that there are no veterans serving on the Court--none of them have any first-hand experience with military life, so they accept the government's arguments without question.
So the short answer is that the military personnel are still protected by the constitution (don't worry about the military courts--that's a seperate issue), but the Courts will almost always rule that the needs of the military outweigh the solder's right to exercise those liberties.
It's not that the constitution doesn't apply to veterans, but that the court considers the context in any case constitutional issue. For example, you have a First Amendment right to say what you like, but that doesn't mean you can disclose national security secrets or shout your opinions through a bullhorn at 3am in a residential neighborhood.
Likewise, whenever the constitutional freedoms of a soldier are at issue, the Court is going to be very deferential to the military's need for discipline and conformity. This is especially true now that there are no veterans serving on the Court--none of them have any first-hand experience with military life, so they accept the government's arguments without question.
So the short answer is that the military personnel are still protected by the constitution (don't worry about the military courts--that's a seperate issue), but the Courts will almost always rule that the needs of the military outweigh the solder's right to exercise those liberties.
26
I look forward to the day when sexual deviants are allowed to adopt children and serve openly in the military. I can't believe that anyone would condemn or oppose this! I am in the Navy and I want our homosexuals to be free to tell us about their sexual deviation and I want them to be loud and proud! I want to be able to look around me and 24/7 on a 6 month deployment and take comfort in knowing that the people who I'm working closely with and sharing living quarters with are sexual deviants. I want them to be able to walk around on the boat all day long proclaiming their deviation for me and all of my fellow honorable servicemembers to hear, including the Captain, the Commodore and all of the marines on the boat! I will not rest until sexual deviants are practicing their deviation openly, loud and proud, in full military uniform. Dear God please get them into the service. And to those of you that are in the service having to conceal your sexual deviation; thank you for your service! We're gonna make sure you can be open, it might take some more work, but we'll make it happen!!! God bless you guys
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