DADT Ruled Unconstitutional

[trilingual]

In a lawsuit filed by the Log Cabin Republicans in Southern California, a federal district judge has found that Don't Ask, Don't Tell is unconstitutional, violating provisions of the First and Fifth Amendments. News coverage has been sketchy -- the ruling just came out late this afternoon. The judge is reportedly planning to issue a nationwide injunction against enforcement of DADT. There will undoubtedly be more coverage in tomorrow's papers. This is not the only case challenging DADT, so this could be a long story. It will be interesting to see if the Obama administration, which would like to see DADT repealed, will appeal this decision.

[leigh.bess.toad]

In a lawsuit filed by the Log Cabin Republicans in Southern California, a federal district judge has found that Don't Ask, Don't Tell is unconstitutional, violating provisions of the First and Fifth Amendments. News coverage has been sketchy -- the ruling just came out late this afternoon. The judge is reportedly planning to issue a nationwide injunction against enforcement of DADT. There will undoubtedly be more coverage in tomorrow's papers. This is not the only case challenging DADT, so this could be a long story. It will be interesting to see if the Obama administration, which would like to see DADT repealed, will appeal this decision.

 

Great news. Thanks for the heads up!

[orbital sander]

It should be very interesting to see this one unfold...

[uwsman2]

The NY Times posted a link to their story on the website this morning. You can download the entire opinion in a pdf file if you are interested. Ruling premised on the 5th and 1st Amendments. She found that DOJ failed to show they had any substantial interest in booting out gay personnel - which is the test in the 9th Circuit. There is a dispute between the government and the plaintiffs on whether a federal district judge has authority to issue a nationwide injunction against the enforcement of a federal statute - especially one that's been upheld against judicial challenge by several federal appeals courts. It may be that she can only enjoin its enforcement within the 9th Circuit (basically the west coast states, Hawaii and Alaska - but that covers lots of military bases). That debate is all academic, however, since the ruling will be stayed pending appeal and the case will really be decided in the appellate courts, unless Congress moots it by the Senate passing the pending military bill that repeals the policy.

[Guest Merlin]

No chance the Congress will change the statute. More important things to do with its dying breath. It ultimately will depend upon one man, Mr. Justice Kennedy. Hard to tell what he will decide, but he wrote the decision striking down the Texas law against gay sex, as I recall. But that does not mean he swallows the entire gay agenda hook, line, and sinker.

[orbital sander]

No chance the Congress will change the statute. More important things to do with its dying breath. It ultimately will depend upon one man, Mr. Justice Kennedy. Hard to tell what he will decide, but he wrote the decision striking down the Texas law against gay sex, as I recall. But that does not mean he swallows the entire gay agenda hook, line, and sinker.

 

WTF is the "gay agenda" oh enlightened one?? I have missed all the "agenda" secret meetings in my neighborhood as of late...

[KMEM]

WTF is the "gay agenda" oh enlightened one?? I have missed all the "agenda" secret meetings in my neighborhood as of late...

 

They were held just down the street in the "gay bar" but apparently you did not "flash the correct password".

 

The Senate was supposed to deal with this legislation this summer but may have gotten side tracked or ignored it with all the other problems facing the nation. There is a process in place and ongoing that will allow the military to have an "opinion" about this matter which likely the Congress will pay some attention to. That process is scheduled to end in the next few months. We have waited this long, can a few more days really matter?

 

Best regards,

KMEM

[Guest DuchessIvanaKizznhugg]

WTF is the "gay agenda" oh enlightened one?? I have missed all the "agenda" secret meetings in my neighborhood as of late...

 

Now, get to it!! No time to waste!

[video=youtube;ckGaShCWbcE]

[orbital sander]

Thank you Duchess!!!

 

That was Classic, I laughed so hard that I had tears!!

[+ deej]

I have missed all the "agenda" secret meetings in my neighborhood as of late...

 

Oh, noes! You didn't get the toaster oven?

[Guest Merlin]

The gay agenda, presently, consists of the desire for legislation regarding "hate"crimes, same sex marriage, anti-discrimination laws, gay adoption rights, and repeal of DADT. More to follow.

[orbital sander]

The gay agenda, presently, consists of the desire for legislation regarding "hate"crimes, same sex marriage, anti-discrimination laws, gay adoption rights, and repeal of DADT. More to follow.

 

The Grand Poobah of the "gay agenda" has spoken....

 

all gay syphocants must now align with the master!!

[trilingual]

Getting back to the topic: I haven't had a chance to read the decision yet, but there was extensive coverage of the decision on the Rachel Maddow show tonight. Apparently the government took the same tack in this case as the Prop. 8 proponents took in the gay marriage case: they put on an almost non-existent case. Hardly any evidence, and in this case, no testimony. That's going to leave the government with very little, if anything, to take this case up on appeal. In spite of the government's slim case, the judge in this case (like Judge Walker in the marriage case) went ahead and took apart what there was of the government's case, demolishing all the reasons presented for keeping DADT in effect. Ouch! The fat lady has yet to sing in this case, but between the government's failure to put on a vigorous defense and the judge's thorough trashing of their case it may be very difficult for the administration to appeal this decision. Stay tuned. . .

[MsGuy]

Bless you, Merlin...

 

The gay agenda, presently, consists of the desire for legislation regarding "hate"crimes, same sex marriage, anti-discrimination laws, gay adoption rights, and repeal of DADT. More to follow.

 

That would certainly be a good start.

[orbital sander]

That would certainly be a good start.

 

Thats Merlin, saving America, one gay escort message forum at a time...

[uwsman2]

Actually, you can strike hate crimes off the agenda - we got that last year. In fact, a few days ago a federal judge rejected a constitutional challenge to the new hate crimes law - said the right-wing ministers who filed suit did not have standing, because their odd theory that they might be prosecuted for spouting anti-gay venom from the pulpit would not fly.

[orbital sander]

Actually, you can strike hate crimes off the agenda - we got that last year. In fact, a few days ago a federal judge rejected a constitutional challenge to the new hate crimes law - said the right-wing ministers who filed suit did not have standing, because their odd theory that they might be prosecuted for spouting anti-gay venom from the pulpit would not fly.

 

Shhhhh...are you one of the secret agenda society??

[trilingual]

I found a link to the judge's DADT decision. It's long, but read it for yourself to understand her careful reasoning and, not incidentally, to read some startling accounts of what gay service people have had to go through under DADT. http://graphics8.nytimes.com/packages/pdf/PhillipsDecision.pdf You'll also understand what a thin case the government put on it support of the law.

[MsGuy]

Merlin's cross to bear

 

Thats Merlin, saving America, one gay escort message forum at a time...

 

Bless his heart, he's doing his very best to save us from ourselves. Taken us up as his personal cross, he has, the whole ungrateful carping lot of us. When you stop to think about it, it's really kinda sweet of Merlin.

----

Thanks fo the link to the PDF of the opinion, Trilingual. Media reports of a court decision usually frame legal decisions in political terms.

[gp0560]

Apparently the government took the same tack in this case as the Prop. 8 proponents took in the gay marriage case: they put on an almost non-existent case. Hardly any evidence, and in this case, no testimony. That's going to leave the government with very little, if anything, to take this case up on appeal. ... between the government's failure to put on a vigorous defense and the judge's thorough trashing of their case it may be very difficult for the administration to appeal this decision.

 

What if that lack of energetic defense is the very point? If the government does not appeal, or if the appeal is denied, then the courts will have ruled, the matter will have been declared unconstitutional, and the issue will have been resolved without needing to confront Congress.

 

What if ... ? Any pertinent arguments or qualifications?

[trilingual]

I'm not a constitutional lawyer. In fact, I'm not a lawyer at all (just a law school drop-out, long ago). So perhaps one of our legal experts can explain what would happen if the government fails to appeal. Is the judge's ruling only precedent in her district? Or circuit? (It's based in part on the Witt decision in the 9th Circuit which the government has apparently ignored so far.) It seems to me that it would apply nationally if not appealed, and that the judge has the power to issue a national injunction (after all, something can't be unconstitutional only locally or regionally -- either it's constitutional or unconstitutional everywhere). But this gets into procedural and jurisdictional issues that are over my head! Clarification anyone?

[Rick Munroe]

But that does not mean he swallows the entire gay agenda hook, line, and sinker.

 

Well, he really should swallow, because spitting it out is just rude.

[uwsman2]

The question of the impact of Judge Phillips's order is perplexing. The problem is that the Witt decision was not a final ruling on the merits by the 9th Circuit, merely a ruling rejecting the government's argument that the case should not go to trial and establishing the legal test that the district court should apply during the trial to decide who wins. That case was sent back for trial, and I don't think the trial has been held yet - they are still in the discovery phase.

 

The other problem is that the standard set by the 9th Circuit in the Witt case is different from the standard set in other courts of appeals in various ways. Most importantly, in a case very similar to the Log Cabin Republicans case, the 1st Circuit (in Boston) ruled in favor of the government, upholding DADT. So it's hard to see how a trial judge in California could issue a nationwide injunction when an appeals court in a different circuit has relatively recently rejected a constitutional challenge to the policy. The policy has also been upheld in several other circuits, although those opinions are a bit older and don't take into account the important Texas sodomy law ruling by the Supreme Court from 2003.

 

It seems to me -- and I am a lawyer who focuses on these issues -- that at most this Log Cabin Republicans case might be effective for the 9th Circuit - basically the far western states - until/unless it gets up to the Supreme Court.

 

The most hopeful thing would be for the Senate to pass the pending bill that would authorize repeal of the policy, making the case moot.

[trilingual]

Thanks! I didn't realize the Witt case was back for rehearing. I guess if the Log Cabin case ends up resulting in a conflict between the circuits it could yet end up before the Supreme Court. But it would be great if Congress would just repeal the damn thing and moot the whole dispute!