Federal court upholds 'Don't Ask, Don't Tell'

[PageOneQ]

Source: PageOneQ

On Monday, the First Circuit Court of Appeals upheld the dismissal of Cook v. Gates, brought by twelve discharged gay and lesbian military servicemembers against Secretary of Defense Robert Gates and Secretary of Homeland Security Michael Chertoff against the implementation of 10 USC § 654, commonly known as the "Don't Ask, Don't Tell" policy.

"Don't Ask, Don't Tell," enacted in 1993, requires that a gay servicemember remain in the closet in order to serve, with the intent of preserving "unit cohesion" and morale.

Read more: http://pageoneq.com/news/2008/dadt061008.html

[xchrom]

1. ...

:grr: :nuke: :grr:

[PageOneQ]

2. does this mean something in DU-speak??

[xchrom]

3. well - do i read this right --

dadt has been upheld?

if i read it right -- and i can be angry before i'm able to get it all in -- dadt continues as is for now.

dadt has been used as a witch hunt against lgbtiq folk -- upholding that is -- well not something i would be for.

[TheWraith]

4. They upheld the dismissal of a suit against Gates and crew.

Apparently the suit was dismissed on the grounds that the lawsuit was against the policy itself rather than claiming that it had been misapplied, putting it not within the court's jurisdiction.

[xchrom]

9. ok -- i get that -- but this is pretty amateur here

It is difficult to conceive of an area of governmental activity in which courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.


lgbtiq are just people -- not martians or beings from another planet -- what competence does it take
to say that able bodied mentally atable people who want to serve are being kept from service because
of superstition?

how is that not a matter for the law -- it's discrimination that they wouldn't hesitate to rule on if it were race.

[TheWraith]

10. Well, it's buck-passing to a certain extent.

But it's also the fact that military laws get judged by a different standard than civilian laws. It's why the Lawrence V. Texas decision didn't overturn the UCMJ law against sodomy, even though it struck down all the other state laws. Basically, the military is allowed to exercise restrictions on its people that wouldn't be constitutional if applied to civilians.

In this case, the court's basically saying "We're not going to take an opinion as to whether this rule is necessary for the proper functioning of the military."

[xchrom]

12. i can understand -- sort of -- the sodomy laws

with respect to a code of ethics -- sort of.

but lgbtiq -- and any rational person knows this -- don't fuck 24/7 -- or any more than straights do.

and we're aren't less ethical -- again any rational person knows this.

the court should remember the absurd myths surrounding african americans before service desgragation.

[happyslug]

5. Here is the opinion if you want ot read it.

http://www.ca1.uscourts.gov/

Type in "Gates" as a party and the opinion will pop in a list of two cases. Click on Cook vs Gates and you get the opinion.

[happyslug]

6. The Court gave great defference to Congess in Military Matters.

After reading the opinion, it seems the Court decided to defer to Congress in this matter, apply the "Rational test" of review i.e. If Congress gave a reason for the law it is valid unless it can be shown no rational reason for the law exists (i.e. The law will be upheld).

The Key paragraph to the Opinion is the following:

The Supreme Court has articulated essentially two reasons for this deference. The first involves institutional competence. The Court has remarked:

It is difficult to conceive of an area of governmental activity in which courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also N.D. v. United States, 495 U.S. 423, 443 (1990) (noting that where confronted with questions relating to military operations the Court "properly defer(s) to the judgment of those who must lead our Armed Forces in battle").

The second relates to the constitutional power of Congress to "raise and support armies and to make all laws necessary and proper to that end." United States v. O'Brien, 391 U.S. 367, 377 (1968). The Court has described this power as "broad and sweeping," id., and has further noted Congress' accompanying responsibility for "the delicate task of balancing the rights of servicemen against the needs of the military." Solorio v. United States, 488 U.S. 435, 447 (1987).

It is unquestionable that judicial deference to congressional decision-making in the area of military affairs heavily influences the analysis and resolution of constitutional challenges that arise in this context. The Court's examination of the equal protection challenge leveled in Rostker provides an example. That case concerned a statute that required only males to register for selective service. The lower court had invalidated the statute as unlawful gender discrimination. 453 U.S. at 63. In reversing, the Court focused its analysis entirely on the legislative record that led to Congress' action. The Court discussed, in detail, the process Congress employed in considering the issue, its consultation with all interested parties, its serious consideration of the issues, including the constitutional implications, and its clear articulation of the basis for its decision. Id. at 72-80. The Court then declared the district court's analysis striking down the law "quite wrong" because the district court undertook "an independent evaluation of evidence rather than adopting an appropriately deferential examination of Congress' evaluation of the evidence." Id. at 82-83.

[Seeking Serenity]

7. The bolded graf I find quite fascinating

Here is a court asserting its lack of competence to decide a matter. Interesting.

[happyslug]

16. Note section in bold is from a US Supreme Court Decision

In the actual opinion, it is indented and single spaced, while the rest of the opinion is double spaced. That is normal when you quote another opinion, but the key is that it is the position of the US Supreme Court.

[Freddie Stubbs]

8. So, it is up to Congress to change the law

[TheWraith]

11. Or it can be done by the President. Not amending the UCMJ...

...since that requires an act of Congress. But the head lawyer for the Pentagon is a presidential appointee, and he can alter Pentagon policy to halt investigation and prosecution.

[Zhade]

13. Thanks, bill, you fucking ASSHOLE.

NT!

[saigon68]

14. Yes he did Fuck up things a bit

Didn't he

[happyslug]

15. Read the opinion. listed above, the problem was CONGRESS not Bill.

n/t

[Zhade]

17. Funny, I must have missed his VETO.

NT!

[happyslug]

18. So you wanted to retain the rule that Homosexual could NOT join?

And that one had to declare he or she was NOT a homosexual? Remember the Law was that you had to say to were NOT a homosexual. Furthermore is was (and is) a crime to lie on your enlistment papers so you HAD to say you were NOT a Homosexual to even enlist prior to the Adoption of "Don't' Ask, Don';t Tell". Furthermore Congress did NOT remove Homosexual relationships from the Criminal section of the Uniform Code of Military Justice (UCMJ).

Remember the law as it WAS, not as you would like it to be. If the law that existed permitted Homosexuals to enlist then a Veto would have been in Order, but the law was it was ILLEGAL for a homosexual to enlist (Please note the Law, as written, only applies to the Navy and Air Force, the law did NOT prohibit the Army from taking Homosexuals in, the Army forbid it by regulation in 1982). The reason for the difference was the law passed in 1947 reorganizing the Military did several things, first in Separated the Air Force from the Army, second it formed the Department Of Defense as over and above the Departments of the Army, Air Force and Navy. Third the Act also further integrated the National Guard into the Army.

The National Guard Officers are appointed by the States (And a co-appointment is made by the Secretary of the Army, which has been the rule since the Dick Act of 1905). The officers of the Regular Army, Air Force, Marines and Navy are exclusively appointed by the Federal Government. Do to this difference, the Federal law made it clear who could be in the Air Force, Marines and Navy but left the Army to do the same by regulation. Thus you had a ban on Homosexual by statute from being in the Air Force, Marines and Navy, but left it up to the Army to do a similar ban by regulation (the Concern was more racial then Sexual orientation in 1947, The South rejected the whole concept of black Officers being appointed over Whites, while the rest of the Country was open to the Idea and the differences had already appear in the Appointment of Black Officers in Northern National Guard Units).

With the Civil Rights Movement the restrictions on Blacks quickly disappeared in all four Services, but the structure about who can be an officer or enlist in each service remained and still exists. Thus when Bill Clinton wanted to change the rules on Homosexuals in the Military he could do so by Regulation only to the Army, to change the policy for the Navy, Air Force and Marines he needed Congressional action (and the Professional Army Officer Corp was opposing any regulation permitting homosexuals into the Army, while homosexual still could NOT enlist into the Navy, Marines and Air Force).

My point is Bill Clinton needed Congressional Action, he could NOT do it himself given the ban was statutory as to the Air Force, Navy and Marines. Thus Bill Clinton ended up with "Don't Ask, Don't Tell" for that is as far as the Democrats in Congress were willing to go. This was passed by the Democratic Congress that would go down in defeat in 1994, and one of the reason for that defeat was the fight over appealing the Complete ban on Homosexuals serving in the Military. "Don't Ask, Don't Tell" was the best Bill Clinton could get out of Congress for all four services and since it was a Congressional act all four Services had to accept it.

Bill Clinton could have veto the Bill, and then Homosexuals could not legally enlist in the Air Force, Navy or Marines. Bill Clinton could have change the rule for the Army, but the professional staff of the Army opposed such a change and he feared that Congress could add the Army to the list of services that it was illegal to be a homosexual to be in (And the GOP wanted to go that way and they had enough Democrats worried about re-election that it would have passed and Bill Clinton would face a dilemma veto the bill and give the GOP an even stronger hand in 1994 or sign it. The Democrats in Congress managed to kill the GOP Proposal by burying it is a committee, but it was in the hopper. Thus Bill Clinton did NOT dare do the Change for the Army, which he could, let he give the GOP more leverage in 1994.

We must remember Political reality in the 1990s. Bill Clinton was probably the best President the Democrats could have had in Office in the 1990s, he often out GOPed the GOP. We do NOT need that today, we need a President more to the left, but that was NOT the case in the 1990s, Bill Clinton was the ideal President, he contained the GOP wave and now that the Dot-Com Bubble and the Real Estate Bubble have burst, the country is seeing it must go to the left. You may get "Don't Ask, Don't Tell" repealed by the next President, through if I was advising him I would NOT even bring it up. The Economy is what needs to be looked at and anything else is just a diversion from the Economy. That is why the GOP fought against Homosexuals all through the 1990s, it was because they are Anti-Homosexual, but because the GOP knows it will divert attention from any plan to fix the Economy. You fix the Economy, the Democrats will be in Control of the Federal Government for the next 40 years. Over that time period The Democrats may change this rule, but I would NOT do it now, concentrate on the Economy and dismiss social issues as a diversion to be avoided not addressed.