Here we go again.
While I believe DADT should have been overturned years ago, I don’t believe it is a court’s role to determine military policy.
Via Servicemembers United we learn that “U.S. District Court Judge Virginia A. Phillips has ruled that the 17-year old “Don’t Ask, Don’t Tell” law is unconstitutional. Judge Phillips also indicated that she will issue a permanent injunction barring the Department of Defense from carrying out further discharges.”
Let’s just have Congress overturn this law to avoid a prolonged legal battle.
The opinion is here. Given the Jewish New Year and other obligations, I doubt I’ll have time to get to it right away. (From a quick scan of the opinion, my sense is the judge relies less on the actual text of the constitution and more on twisting past rulings to yield the result she wants.)
Short summary of my opinion. This is the result I want, but from the wrong branch of government.
UPDATE: Have now had the chance to scan some other posts/articles on the web. Allahpundit thinks this will “fuel this fall’s populist mojo“:
This one isn’t quite as explosive as the Prop 8 ruling, partly because a heavy majority(including a majority of Republicans) already supports letting people who are openly gay serve and partly because the policy’s already on its way out. But if you’re looking for a little extra something to fuel this fall’s populist mojo, some legalistic jujitsu by an unelected judge against a longstanding national policy will do the trick nicely.
From the LA Times, we learn that Judge
. . .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.
Now, I believe she’s right here, but this is not an issue for her to resolve. The Constitution makes clear that the executive and legislative branch set military policy and we should be wary of judges interfering. Here, while I like the fact that a silly and counterproductive policy has been ruled invalid, I am concerned about the precedent it sets, practically inviting disgruntled service members to sue the government if they don’t like a particular military policy.
That said, it could spur the Senate to act and repeal this thing the right way — through the legislative process:
“It could well be the catalyst that is needed to drop some of the opposition we’ve seen in the Senate” to holding a vote, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group that has been lobbying Congress to end “don’t ask, don’t tell.”
“This should not linger in the courts. It should be resolved by Congress, this year,” Sarvis said.
UP-UPDATE: Patterico agrees, “As with Prop. 8, I oppose the policy but can’t imagine the decision is legally correct.”
Say what you will, I’m happy.
I am a Soldier, who fought for 10 years to get into the Army. I stayed quiet about who I was to keep my church happy and Uncle Sam happy. And I paid for it in many ways.
The judge just gave me the freedom to tell everyone tomorrow what’s really been going on in my life for all these years. And I won’t be penalized for it. That’s progress.
The Log Cabin Republicans weren’t bad after all.
Let’s hear all the people on this blog say in unison–
Gays in the military–maybe it’s Constitutional, but it’s not the right thing to do.
Maybe it’s not the right thing to do, but it happened. So adapt.
I support overturning the law, but not if the ruling is not found in the Constitution. If her opinion is not based in the Constitution, there is nothing to celebrate and we should be fearful of judges making rulings outside of their Constitutional powers.
Gays have every constitutional right to be in the military, but they really shouldn’t do it because it makes some people mad.
Gays have every constitutional right to form legal partnerships, but they really shouldn’t do it because it makes some people mad.
Muslims have every constitutional right to build a mosque wherever they want, but they really shouldn’t do it because it makes some people mad.
there is no constitutional right to serve in the military, gay, straight, or otherwise. There are a lot of good reasons why this is true. You can argue all you want about whether being gay disqualifies you from serving but it absolutely has nothing to do with constitutionally protected rights.
CocoRico: “The judge just gave me the freedom to tell everyone tomorrow what’s really been going on in my life for all these years.”
No offense, but you’re dangerously mistaken if you think that’s the case. If you do indeed declare your orientation tomorrow, at least do it on live tv or something. Because by the end of the day, the discharge proceedings will have begun.
Americans have every constitutional right to burn books, but they shouldn’t do it because it makes Islamo-fascists batshitcrazy.
Dumbasses have every constitutional right to make fools of themselves on the internet, but they shouldn’t do it because it’s just sad.
Fat, lazy oxygen thieves have every constitutional right to sponge off of the productive…..oh wait…no you don’t.
“No offense, but you’re dangerously mistaken if you think that’s the case. If you do indeed declare your orientation tomorrow, at least do it on live tv or something. Because by the end of the day, the discharge proceedings will have begun”
Sean, that’s not the way things work in the military. A lot of people are already out. It’s actually very difficult to be separated under the gay chapter, because the commander has to do a lot of paperwork. If you don’t want to go, it’s rather difficult to be pushed out. Trust me. If anything I know many people who have tried to get out by saying they’re gay and haven’t been able to get discharged.
The one caveat to that is if someone’s an officer or works in an MOS that’s high demand. Neither applies to me. I’m a lowly enlisted soldier in a highly deployable field and they don’t exactly have a surplus of people trying to get into my MOS. So even before this ruling, it was fairly common for people to be fearless about their sexual orientation in my position. I don’t know if you served in a different climate or a long time ago. What I am describing is the way things are today.
yeah! Judicial tyranny rocks when you get what you want! Until, of course, you dont and they trample on real God-given rights that you actually do have. Like the right of the people to govern themselves — which is pretty damn essential to anyone who values freedom. Then you realize it is tyrannical and lawless. And tyrants can do much worse things to you than make you keep your mouth shut about your sex life.
three points:
1. You didn’t know what the policy was when you got in? I dont have much sympathy for any gays complaining about DADT who signed up after 1993
2. no, she did not base her ruling on the Constitution, she based her ruling on the “rights” that Kennedy fabricated out of whole cloth in his Lawrence opinion, which in turn are based on the so-called right to marital and medical privacy fabricated in Roe v Wade.
And yet what do you want to bet these same rights to medical and intimate privacy will somehow NOT be found to apply to your medical decisions between you and your doctor OTHER than abortion.
The courts have NO checks and balances and they are deeply corrupted because of it. Anyone who supports judicial tyranny because it gets them what they want is a fool.
and yes, this will get Conservatives even more fired up, while simultaneously making people who
“there is no constitutional right to serve in the military, gay, straight, or otherwise. There are a lot of good reasons why this is true. You can argue all you want about whether being gay disqualifies you from serving but it absolutely has nothing to do with constitutionally protected rights.”
The issue is not whether you have a right to serve in the military. Currently you aren’t barred from service for being gay, only if you exhibit gay conduct. That’s not what’s being contested.
The problem is the due process by which you get separated. Once you are in the military and you pass all the other qualifications, there is a constitutional problem for someone to be separated — that is an administrative action, as they say — for conduct, when others would not be separated for similar conduct. Certain military justifications like “unit readiness” could justify unequal application of the rules, but the judge said here that those justifications were not strong enough to disregard the unequal application of Army regulations regarding separations. A lot of legal claptrap, but basically saying, the constitution guarantees that people get equal protection and due process in administrative actions by the government.
Also, the equal protection clause is violated routinely by DADT in another way, which I don’t think the judge discussed. Straight people can be penalized for violating an article of the UCMJ about unnatural sex acts (sodomy, etc), but they get Article 15s or whatever NJP the commander pursues. If gay people are caught doing unnatural sex acts, they get honorably discharged with full benefits. So you could see this as unequal treatment. One straight person I knew tried to sue because his girlfriend reported him for cunnilingus and he said he was being discriminated against for being straight… long story.
American Elephant: “You didn’t know what the policy was when you got in? I dont have much sympathy for any gays complaining about DADT who signed up after 1993”
I’m not sure what to say to this. I wanted to serve my country, so I served. I’m still serving now. The court overturned DADT and I’m happy about that. The rules said I had to stay quiet, so I stayed quiet. Now the rules have changed. I don’t have to stay quiet.
I don’t really want your sympathy. I don’t want anything from you, or need anything from you at this point. I’m just happy about this court ruling and glad the stupid rule is on its way out. At this point it’s inevitable.
LOL, The patriot-heads need to chill out over this.
Don’t they know that the libs believe in the “living and breathing” constitution which meaning changes over time as society matures and progresses.
So tomorrow the courts will decide that DADT is not unconstitutional since the constitution is living and changes through time. So today it means one thing, tomorrow something else.
A judicial interpretation of the constitution is not needed to know how unnecessary and stupid this lib/con law is.
“Like the right of the people to govern themselves — which is pretty damn essential to anyone who values freedom.”
Bull.
The patriots believe that “freedom” can only derive from the consent of your neighbor through the ballot box. You cannot say it is “freedom” when you need to ask for permission to use it. Somebody that really believes in freedom would know that freedom derives from our humanity and/or creator. It defeats the purpose of having freedom in the first place when it can only come from the consent of a supposed majority.
So AE, you don’t believe in governing yourself, you believe in others governing you and you governing others.
“The problem is the due process by which you get separated… A lot of legal claptrap, but basically saying, the constitution guarantees that people get equal protection and due process in administrative actions by the government.”
Constitutional rights are superseded by the UCMJ for members of the military. This is another very long-standing legal principle due to the impossibility of maintaining a standing army when its members are entitled to some quite liberal constitutional protections.
Military members have no right to ‘Due Process’, or ‘Equal Protection Clause’, or any other constitutional rights and a single district court judge exceeded her authority by claiming that they now do. This is the military for cryin’ out loud.
Coco,
I’m GLAD you served in the military, and I’m very GRATEFUL you served in the military. But you had said that “I paid for [keeping quiet] in many ways” and I’m sorry if you did, but my point is that disliking the terms of a contract after signing a contract knowing full well what the terms were is not a good or a just reason for judicial tyranny.
You may be happy with the ruling. I would would respectfully suggest that judicial activism robs you of far more important rights than any you think you are gaining.
Well said, quiznilo, esp. in 6.
AE, your concluding ¶ in comment #16 gets at the essence of my problem with the ruling.
JS,
That is the weakest load of BS that I’ve heard in many months. And that’s saying something. Please get back to me when you learn the difference between self governance (representative democracy) and anarchy. Until then, it appears I would be wasting my time. But suffice it to say, no, only an idiot believes there is freedom in the military.
Just so we’re clear, the judge did not base any part of her opinion on equal protection arguments.
The problem with the courts interferring is a) The military is already an institution where you hang up several of your rights when you (volunteer to) enlist, and b) The UCMJ is the power of the Executive as CnC, not the courts. Don’t believe me? Try writing an op ed accusing President Obama of treason as a soldier. Please make sure you can access the site from Levenworth to tell us how that went.
As another wise poster said, “the occasional stupid law is part of the price we pay for the freedom to govern ourselves.”
I’m curious. Could you expound on that? Maybe because I’m tired, but I can’t imagine how keeping quiet would be all that detrimental.
And just so we’re more clear: only one side presented ANY case whatsoever and they purported to speak for a million service men and women through eight biased individuals. And while no recent definitive study has shown either damage or none to moral and welfare, they also declare to know that. The defense apparently touts her challenged authority and scope in this matter and I’ll suppose, also the Senate’s present work {in reality a lack thereof} on DADT.
I believe the judge ruling on this one-sided presentation of a case, while the policy question is being {whatevered} in the Senate, sends a message of impatience, arrogance and disrespect of our system that American society in general finds distasteful. I believe our recent increases in public support, which the gay civil rights movement regularly and vehemently discounts, will be damaged. The shotgun approach to legislative, judicial and populace activism wreaks more of weakness of purpose and point than much else.
Mea Culpa, ‘moral’ should be ‘morale.’ Thanks.
I must disagree with this. Military members do have the right to Due Process. AND Equal Protection. The difference is that those rights are applied to military members through the military justice system, which operates under the statutory scheme of the UCMJ, as lawfully (constitutionally) created by Congress.
One does not give up fundamental Constitutional rights when one joins the military. But those rights can and are exercised under rules, regulations, and legal processes which are usually more restrictive than those of the general citizenry.
The judge’s grounds for her ruling are questionable IMO. First and Fifth Amendment violations? WTF??? I might understand basing it on the 14th Amendment, drawing from Lawrence, but not these two. If this helps spur the Senate to finally take action and pass DADT repeal that would be good at least. Perhaps the best outcome would be for the Administration to appeal while at the same time pushing the Senate to pass repeal, have the brass give their okay in the Spring so DADT becomes history and make the whole case moot. This would give us the best of both worlds: a despicable policy would be revoked and we wouldn’t have to deal with yet another example of tortured ‘logic’ from the courts.
I am sick and tired of hearing about these few who refuse or who feel the need to change a military policy. As a retired senior enlisted Sergeant I think that the “Don’t Ask Don’t Tell Policy, is the most successful for those that have the alternative lifestyle, if kept in place. The military has no place for individuals and yet these individuals complain only to politicians and judges.
While I believe DADT is the best policy some argue that it should’ve been overturned years ago, I don’t believe it is a court’s role to determine military policy.
We have the civilian population dictating to the military world policy and this from civilians who have never worn a uniform. Sure there are a selected few that got caught in the crossfire and served but left because they too cannot conform to military standards. One standard is necessary to keep military readiness. And why would anyone try to change a policy that most service members agree upon. Some might say it’s not fair. –It doesn’t represent their choice of lifestyle. But if you’re looking for a little extra something to fuel this thought, think about who brought this change.
The gay/lesbian group largely supported by those who have overturned California’s Prop 8 ruling are fueling this fire and throwing gas on to it. Remember Prop 8, that is where Californians voted to define the legalities of marriage? It was solely won on its merits and voted to recognize marriage between a male and female.
Now they are mixing in military policy. In this case a group of gay and lesbians asked an unelected judge to change policy and decree against a longstanding national policy. U.S. District Court Judge Virginia A. Phillips, admits to never have served one day in the military, yet ruled the law “unconstitutional.”
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. What does she know about “Unit Readiness?” That is usually a commanders’ decision?
The group of gay and lesbian members, who call themselves, “Service-members United,” noted that Phillips ruled that the 17-year old “Don’t Ask, Don’t Tell” law unconstitutional. Phillips also indicated that she will issue a permanent injunction barring the Department of Defense from carrying out further discharges.”
Another judge who feels that maybe her pond (Riverside, CA) is too small? Someone needs to pull Phillips aside and tell her (that) there is no constitutional right to serve in the military, gay, straight, or otherwise. There are a lot of good reasons why this is true.
You can argue all you want about whether being gay disqualifies you from serving but it absolutely has nothing to do with constitutionally protected rights.
The issue is not whether you have a right to serve in the military. Currently anyone who joins isn’t barred from service for being gay, only if you exhibit gay conduct. That’s not what’s being contested.
The problem according to many legal experts is the due process by which a soldier or military service member is forced to separate. Once you are in the military and you pass all the other qualifications, there is a constitutional problem for someone to be separated — that is an administrative action, as they say — for conduct, (or in this case misconduct) when others would not be separated for similar conduct. Certain military justifications like “unit readiness” could justify unequal application of the rules, but the judge said here that those justifications were not strong enough to disregard the unequal application of Army regulations regarding separations. A lot of legal baloney, but noted basically, the constitution guarantees that people get equal protection and due process in administrative actions by the government.
So for straight military members, the equal protection clause is violated routinely in another way outside of DADT. , which I don’t think the judge discussed. Straight people can be penalized for violating an article of the UCMJ about unnatural sex acts (sodomy, oral sex, etc), they get Article 15s, a bad conduct discharge or whatever a commander of that individual decides to pursue.
If gay military personnel people are caught doing unnatural sex acts, they get honorably discharged with full benefits. Under DADT that is the protection. So you could see this as unequal treatment. Every one hears about a straight soldier who has problems with an affair or friendship that went south. One soldier’s girlfriend tried to sue him, because his girlfriend reported him for cunnilingus and he said he was being discriminated against for being straight, Or the lonely specialist who is deployed away from her 19 year old husband and meets someone new,… or the officer or long standing enlisted soldier who has an affair and is penalized for adultery.
Constitutional rights? There are many which a military member gives up when entering the military. Even age limitations are one of them. Age discrimination against reaching a mandatory age is also a constitutional right yet it is there for the protection of mission requirements. If a soldier passes their physical fitness tests they still cannot be promoted after they reach the age of 58, because of time in grade requirements and the mandatory removal date at the age of 60. Normally with the active force this is not a problem. But given the fact that the Reserve and National Guard force are carrying a major role in today’s wartime effort is leaves a bitter taste for some as anyone who nears that age must adhere to age requirements. So get out and then re-enlist at a later date the age limitations are set. Depending on time served and retirement dates, one has to calculate age.
If the military is going to change with the times at all it should be set that all are equal not just a chosen few or a segment or population.
Mr. Blatt,
It is not the role of Congress to determine if laws are or are not Constitutional. That is the role of the Judiciary. Maybe you should go back to 7th grade and re-read your government books.
[GP Ed. Note: I’ll let Dan have his way with you as you are a complete moron.]
Mykelb, I don’t disagree that courts have a role in determining the constitutionality of laws. What I do disagree with how the judge did it in in this case. It’s clear the constitution (go read it) gives the executive and legislative branches broad deference in matters military. And the judge ran roughshod over that deference.
And please, if you want to comment to our blog, at least respect the arguments that I make. As I wrote in another post, “Just because they want to find something in the constitution doesn’t mean it’s there.”
So, in your haste to insult my education, you miss my point. Indeed, if you actually read my post, you’d realize I was faulting the judge for her manner of judicial review, getting the result she wanted without serious consideration of the meaning of the document she was interpreting.
“It is not the role of Congress to determine if laws are or are not Constitutional. That is the role of the Judiciary.”
And this is all absolutely not correct. Congressmen and Presidents and all federal elected officials take oaths to uphold and defend the constitution. It is equally up to all three branches of the federal government to act constitutionally.
We once did have cases in the US where the executive branch or congress ignored court rulings that were deemed unconstitutional (as they should do now). This is a relatively new phenomena that the Supreme Court (or any court) is the final arbiter of what is constitutional and what is not.
Why do judges think they can legislate through judicial fiat? This is why we have the three branches of government. Judicial activism is an abuse of power. He should be impeached.
Let us examine this through the lens of precedent.
Currently, there is no U.S. Supreme Court precedent binding on this case.
While the Ninth Circuit upheld DADT in Holmes v. California Army National Guard, 155 F.3d 1049 and Philips v. Perry, 106 F.3d 1420 , it did order the reinstatement of a person discharged solely because of homosexual orientation (as opposed to conduct). (Meinhold v. United States Department of Defense, 34 F.3d 1469)
Goldman v. Weinberger , 475 U.S. 503, is relevant, and would certainly control in cases where a serviceman reveals a homosexual orientation to other servicemen up or down the chain of command, or even servicemen in general. But DADT goes beyond that, forbidding servicemen from revealing a homosexual orientation under almost any circumstance. By contrast, the regulation at issue in Goldman only forbade the wearing of a yarmulke as part of the uniform; it did not forbid wearing yarmulkes off duty or in other circumstances where wearing civilian clothing was permitted.
In this same token, a facial challenge must fail. If nothing else, DADT, as applied to cases involving homosexual conduct up and down the chain of command, is constitutional.
Speech and religious exercise are more restricted in the military, as you well know.
Under Goldman , the military could forbid wearing of yarmulkes as part of the uniform.
I do not know if an application of DADT in cases of revealing one’s homosexuality to a civilian while off duty would be consistent with the Fifth and First Amendments. But I fail to see how applying DADT in cases of revealing one’s homosexuality up and down the chain of command would be unconstitutional.