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DADT Pre-Emptive Fire from the 9th Circuit

News this evening coming down that the 9th Circuit Court has, once again, decided it knows better how to defend America than do our own Armed Forces, elected officials, or duly appointed and confirmed leaders of the DoD.

Still looking online for something official from the court, but the short story is that they’ve decided that, since DADT repeal is chugging along just fine, it’s time to screw up the entire process.

It seems that the court has used the continuing success of an orderly process combined with a lawless Administration which refuses to do its job to “take Care that the Laws be faithfully executed” with respect to DOMA as its basis for deciding to run the US military regardless of what’s best for National Defense.

With former SecDef Gates predicting certification (the needed step for implementation of the end of DADT) occurring within the month, and current Secretary Panetta stating in his confirmation process that he supports repeal and will work to implement it upon certification, I’m still puzzled why LCR continued their suit.

No, I’m not puzzled as to why they said they were continuing: Because they don’t trust, apparently, the military and/or the Administration to actually do what they said they’d do (let alone follow the law). Naturally, having witnessed the current Commander in Chief in action lo these two long years, I can understand why you’d want to see the cash first. But there have been zero indications that there would be any problems with the repeal coming to fruition. Even the Sergeant Major of the Marine Corps told his troops to “get over it” and press on with our duties to implement the new policy.

It boggles the mind, then, why anybody who respects the military and our mission would insist on pressing forward with this case. Let’s review the facts:

The whole purpose of passing the law last December was because everybody (except, apparently the 9th Circuit Court and the glory hounds at LCR) realized that we needed an orderly transition from the DADT world to the non-DADT world. As that process continues, it’s not any less important that it take place orderly. Any disruption is unnecessary and needlessly dangerous.

Nothing other than a completely unsubstantiated paranoia by those who clearly know very little about how the military works explains their insistence in pushing forward with preemptive ending of this policy. Or perhaps it shows an utter contempt and unseriousness about our National Defense and should be embarrassing to all gay men and lesbians in the service our not.

It’s a shame the last chapter of this drama opens with the petulance and infantile impatience of the LCR who don’t know a victory when they see one.

One of the great arguments against repeal of DADT was what I considered unrealistic and silly predictions of cataclysm if gays and lesbians were allowed to serve openly in the US Armed Forces. If and when there are problems with the repeal, we will all now actually have an answer for why: Because the children of the LCR and the 9th Circuit busybodies had so little trust and/or respect for our military that they decided that they should be the ones to dictate how change happened.

-Nick (ColoradoPatriot, from HQ)

UPDATE (from Dan): Nick, you pretty much spared me from blogging on this. That said, I may have something to add tomorrow on this matter. Log Cabin really beclowned itself here. Instead of the military working out an orderly transition to the new “regime,” we have the judiciary ordering an immediate suspension of the policy.

Wonder whether the judges striking down this policy have any record of service in our armed forces. The administration should appeal this on the grounds that the judiciary should not set military policy. It sets a dangerous precedent, especially after Congress has repealed DADT.

If the folks at Log Cabin were true conservatives, they would understand the notion of judicial restraint and the dangers of having courts intervene in matters military — especially after Congress has already acted.

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10 Comments

  1. I’m curious:

    What exactly is “chugging along just fine”

    How long did it take for the military to desegregate after Truman ordered it on July 26, 1948?

    Comment by Kevin — July 7, 2011 @ 12:32 am - July 7, 2011

  2. I’m curious:

    What exactly is “chugging along just fine”

    How long did it take for the military to desegregate after Truman ordered it on July 26, 1948?

    Comment by Kevin — July 7, 2011 @ 12:32 am - July 7, 2011

  3. Depends Kevin, When will the military start designing HOTAS for left handed people in a percentage of their aircraft?

    Comment by The_Livewire — July 7, 2011 @ 7:36 am - July 7, 2011

  4. Nick: I hate to defend the 9th Circus, but in this case I must because if you read the ruling they were doing exactly what they were supposed to do. If you want to be angry with anyone, blame LCR and the Obama Administration. LCR decided to continue pursuing the lawsuit and filed to have the stay on the unjunction lifted, which necessitated a response by the 9th Circus. The Obama Administration seriously undermined its previous arguments about the constitutionality of DADT, which left the 9th Circus not much of a choice legally-speaking. Given these 2 very important factors I don’t see how else the 9th Circus could have ruled.

    Kevin: It took about 5 years, officially at least, with the Army fighting against desegregation almost every step of the way through the process.

    Comment by JohnAGJ — July 7, 2011 @ 7:42 am - July 7, 2011

  5. Congress can just pass a bill stating that gays are ineligible for military service.
    The policy of DADT was instituted by Bill Clinton because congress did exactly that.
    What the liberals did wasn’t to overturn the policy, they overturned a law passed by congress making gays ineligible.
    That law has always been found to be constitutional based on the fact that congress had the authority to determine standards of eligibility.

    Comment by Richard Bell — July 7, 2011 @ 8:23 am - July 7, 2011

  6. Richard: Once the policy is truly repealed, the longer it is gone the more doubtful it becomes that Congress will have the political will to ever reinstate it. It also is becoming increasingly likely that the courts will strike down any attempt by Congress to do so as well. Sure, Congress can do a number things but without the backbone to do it it ain’t gonna happen. Now since I strongly support repeal of DADT that’s a good thing in this case I’d say.

    Comment by JohnAGJ — July 7, 2011 @ 4:57 pm - July 7, 2011

  7. LCR’s duty is to prosecute the case and secure victory for those LCR members on whose behalf it is suing, not to unilaterally stand down while the process “chugs along.” While it looked like DADT was coming to an end, certification was not guaranteed. It is not beyond the pale that some effort from within the Pentagon or from GOP House members to sabotage or delay repeal would bear fruit. There is no reason for LCR to play along and accept these uncertainties when the policy has already been determined to violate the Constitution.

    What an embarrassment this blog has become. Seriously. We need a gay conservative blog with gravitas and disciplined argument. Why not make GP that blog?
    BTW, there is nothing in the injunction that prevents the Pentagon from continuing with training on DADT repeal or from taking any other measures it desires to preserve readiness and unit cohesion. It just can’t enforce its unconstitutional regulations.

    Comment by Roger — July 7, 2011 @ 7:31 pm - July 7, 2011

  8. Welcome, Roger! Let me begin my response to your comment with this…

    While it looked like DADT was coming to an end, certification was not guaranteed. It is not beyond the pale that some effort from within the Pentagon or from GOP House members to sabotage or delay repeal would bear fruit. While it looked like DADT was coming to an end, certification was not guaranteed. It is not beyond the pale that some effort from within the Pentagon or from GOP House members to sabotage or delay repeal would bear fruit.

    So Roger, if I understand you correctly, you seem to be advocating legal action to stave off political maneuvers that haven’t yet happened, nor would appear to be on the horizon. Is this an accurate description of your position? If so, it is ridiculously specious reasoning.

    What an embarrassment this blog has become.

    Curious, in that this appears to be your first comment here. Might I suggest you find a blog more in line with your tastes, if you find this site that offensive.

    Comment by Eric Olsen — July 7, 2011 @ 8:26 pm - July 7, 2011

  9. What an embarrassment this blog has become. Seriously. We need a gay conservative blog with gravitas and disciplined argument. Why not make GP that blog?

    Because, what you consider “gravitas and disciplined argument”, the rest of the world outside the gay and lesbian community sees as Obama buttkissing, constant victim-mongering, and overwhelming bigotry towards Republicans.

    If anyone should be embarrassed, it’s the idiots like yourself who were running around screaming that we needed to vote for Obama based on his skin color and the “fact” that Republicans wanted to put us all in concentration camps and gass us. Three years into that fiasco, our economy is in the toilet, our world image is in collapse, and all you can do is indulge paranoiac fantasies about the Republicans waiting under your bed to murder you once you get to sleep.

    Done. Finished. If anything, gays like yourself have demonstrated that you don’t care about the military, you don’t care about the economy, and you don’t care about society; all you care about is having your heads patted and forcing other people to “accept” you at gunpoint.

    Comment by North Dallas Thirty — July 8, 2011 @ 11:34 am - July 8, 2011

  10. One of the factors leading to the stay being lifted was the fact that DADT is in the process of being repealed, which would make the appeal moot. The government certainly can not prevail in this case if the appeal would become moot before a final merits decision is reached.

    However, the stay should not have been completely lifted, for the very simple reason that the injunction was overbroad.

    It is fundamental black-letter law that one may only seek judicial relief for others if they are specifically authorized to do so (e.g., power of attorney, executor of an estate) or has a protectable legal interest in relief for other persons (e.g., a corporation suing for injunctive relief on behalkf of its employees with respect to the scope of employment)

    Neither is the case here. Log Cabin Republicans certainly was not authorized under any law to represent the interests of all homosexual servicemen. In fact, in this case it was not even representing the interests of all of its members who were serving in the military; it only represented two plaintiffs, only one of them still in active duty. And neither LCR, nor the two plaintiffs, can credibly assert a protectable legal interest in judicial relief for other homosexual servicemen. Indeed, under binding precedent from both the United States Supreme Court and the Ninth Circuit, the worldwide injunction went too far. See, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs “do not
    represent a class, so they could not seek to enjoin such an order on the
    ground that it might cause harm to other parties”) Meinhold v. Department of Defense , , 34 F.3d 1469 at 1480 (9th Cir. 1994) (overturning injunction except to the extent it provided plaintiff relief), Zepeda v. INS, 753 F.2d 719 at 727 (9th Cir. 1983) (same) See also See also Virginia Society for Human Life v. FEC, (narrowing
    nationwide injunction to the plaintiff in facial constitutional challenge) 263 F.3d 379 at 394 (4th Cir. 2001)

    LCR’s duty is to prosecute the case and secure victory for those LCR members on whose behalf it is suing, not to unilaterally stand down while the process “chugs along.”

    Which would be two people, not all homosexual servicemen.

    Comment by Michael Ejercito — July 8, 2011 @ 12:28 pm - July 8, 2011

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