Another way to think about ending DADT.

[MineralMan]

I've been trying to put myself into the position of a GLBTQI member of the military to see if I could figure out what that person's reaction might be to the current situation. I know for sure that I'd want DADT overturned so I wouldn't have to serve and lie about myself. However, were I in that position, I would not want it to end temporarily, then be reinstated by the whim of a Federal Appeals court or the SCOTUS. If I wanted to serve, I'd want it ended in a way that eliminated the possibility that it could come back or something could be overturned.

I believe that President Obama believes that DADT needs to end in a permanent way that would be very hard to reverse. If this district court decision were to be accepted and not appealed, it could easily be thrown out by the appeals court in the 9th District. Even if they upheld the district court decision, it could still be overturned by the SCOTUS. And, given the current makeup of the Supreme Court, I think that might be very likely indeed.

Some say that President Obama could toss DADT out with an executive order. Maybe, but, that, too is subject to a reversal by the federal courts. I consider it likely. If he stopped DADT on a temporary basis, due to our current war activities, using his power as CiC, then it could easily be overturned when hostilities ended, if not before.

What President Obama wants, it seems, is to get rid of DADT by reversing the law passed by Congress that put DADT in place. By doing that, he completely removes the chance of DADT being brought back by any court, since courts cannot create new laws. By doing that, he forces DADT to end as it began, through an act of Congress. That would mean that it would take Congress to reinstate it, and I don't see any chance of that happening anytime soon. Congress just isn't that interested in keeping DADT right now. If it's repealed, it won't be back.

So, the GLBTQI person serving in the military will only be free to be who he or she is while serving if DADT is overturned by Congress or by the Supreme Court, assuming that this court would ever do that. Until then, a person who wants to serve, perhaps even to be a career military person, must keep living a lie or risk getting tossed out the moment this district court is reversed. That's not freedom. That's just another Sword of Damocles hanging over every GLBTQI service member, waiting to fall at any time.

We have a system of government. We can't do things outside of that system and expect them to stand. Not today. Not with the current SCOTUS. We need to end DADT, but we need to end it in a permanent way. If we do anything else, many people will have to keep living a lie...in fear of things reversing themselves.

I know I wouldn't want to be in that position.

[Proud Liberal Dem]

1. That's a refreshingly rational way at looking at the situation IMHO

Getting it repealed via Congress is the most effective way to get rid of it for good. After Obama has the legal backing to officially dismantle it and the policy is finally swept away, the next reactionary right-wing POTUS/Congress is going to have a damn near impossible time getting it or full-fledged ban back in place, particularly once GLBTQI (BTW what does the "I" stand for? That's new to me) individuals begin serving openly and people realize that the the sky hasn't fallen.

Maybe the LCR should invest more of their time and energy in getting their fellow Congressional Republicans in the Senate to allow an up-or-down vote on the matter? :shrug:

[MineralMan]

2. The I stands for "intersexed," meaning people with

ambiguous sex identification. There are several situations where than can occur, most of them congenital. It's a very small group, but one that is badly misunderstood and with many severe problems in our society.

[Proud Liberal Dem]

5. I see. Thanks!

I just noticed recently that it's being added to the standard GLBTQ and had no idea what it stood for.

[MineralMan]

8. No problem. Glad to help with the information.

[Unvanguard]

3. If it is not appealed, it can't be thrown out by a higher court.

That argument won't do.

[MineralMan]

4. I'm not entirely sure that is true. There's considerable discussion

about that among people who are constitutional law experts. I'm not one of those, I'm afraid. Frankly, all it would probably take to have standing to appeal would be a situation where an individual or group were "adversely affected" by the end of DADT. I wouldn't be surprised if some appeals court would take that on, or even a district court in another district.

Unless you are a Constitutional law expert, I'm not going to be able to take your word for that. As it is right now, there's a debate going on about this very thing among such experts. I suspect that some of them are inside the administration. Presidents have been known to have a few on hand for situations like this.

Besides, I'm looking at this from the perspective of a service member and how he or she might feel about it. Being unsure about the permanence would affect any decisions, I'm quite sure. While I'm straight, I was a member of the USAF, and I remember having to think about the effects my actions might have. I ended up being a war protestor in the late 1960s, while serving, but only after I accepted that doing that might lead to serious consequences under the UCMJ. I did it anyhow, but I sure looked into all the possibilities.

[Proud Liberal Dem]

6. Maybe a group of homophobic service members

funded by some deep pocket right-wing groups could (and probably would) pursue such an appeal? :shrug:

[MineralMan]

7. That could happen, yes, and they might end up with standing

to appeal, depending on many factors. I don't know that they would, but the chance of it might still inhibit GLBTQI service members from living their lives openly. That's the thing I'm talking about. How will it affect those currently serving?

[treestar]

18. No, LCRs or some others in another district could, and it could be found

constitutional in that district.

The government will continue to enforce it outside the Central District of California.

[Renew Deal]

25. They found some to challenge Obama's birth certificate

So anything is possible.

[Unvanguard]

9. Can you point me to someone suggesting otherwise?

I'm genuinely curious. I haven't heard anything of the sort.

[MineralMan]

13. You could start at this link:

http://www.acslaw.org/taxonomy/term/495

A Google search for DADT constitutional

will lead you to accounts of additional discussions by Constitutional lawyers. You'll also find a multitude of blogs opining on the subject, but I wouldn't put too much credence in a blogger's opinion, unless it is supported by information from constitutional law experts.

It's a complex question. And the answer isn't one that can be simply stated. It's one that will end up in the courts more than once. However, if the law itself is repealed, that will end the entire discussion. Again, I'm concerned most with the confidence that people in the military will have that the law is truly finished. As long as there are court cases, nobody can be sure what the end result will be. With an Congressional repeal, however, it will be quite clear, and our military folks can finally live as they are, instead of living a lie.

[Unvanguard]

16. I've read that already, actually.

It says nothing about other parties being able to appeal. It merely states that the judge's nationwide injunction is likely to be altered on appeal. Okay. That strikes me as a reason not to appeal, from the standpoint of ending DADT (leaving aside any legal duty to defend federal law.)

Again, I want to know who else can appeal if the Obama Administration refuses to. I think the answer is "no one." But I await hearing from a knowledgeable person saying otherwise.

[MineralMan]

21. I don't know enough to answer that question.

Please remember that I'm not actually talking about the case itself. I'm talking about how it is perceived by people serving in the military. Especially those seeking a full-scale career in the military. They have to take a long view of this whole thing, and will still be inhibited from living their lives as they choose if there is any chance that DADT might return due to some court case.

It is that apprehension that I'm discussing, not the ins and outs of the federal judicial system. I'm not an attorney, but I have been in the military and know how important doing the right thing at the right time is to those who seek a military career.

So, again, it's not the actual case that I'm talking about, but something else.

[POAS]

11. Not true

This is a district federal court. A case could be brought in another district and if that court ruled to uphold DADT then you would have competing rulings that would then have to go to SCOTUS anyway. That process could take years.

Only SCOTUS can make decisions that are binding on all the Federal Court Districts.

[Unvanguard]

14. It's true that this district court ruling is not binding as precedent anywhere else.

But once the case is not appealed, the worldwide injunction the judge issued (perfectly legitimately) is final: the Pentagon must abide by it forever.

I'm not sure exactly how you're suggesting that outcome could be disturbed. One possible way is by Congress passing DADT again, but that won't happen. So you would need to have a party (with standing) going to court to challenge... what, exactly?

[POAS]

There are several possibilities but

one that seems likely is a service member with strong religiously based homophobia to file a suit (with monetary backing from the right wing) objecting to being forced to serve with homosexuals.

Whether or not such a suit would succeed (it probably wouldn't) the fact that it is ongoing has the distinct possibility of delaying the original district court ruling from taking effect until any conflicts in the cases are resolved by SCOTUS.

[Unvanguard]

28. So they would be challenging the injunction?

I am not a lawyer, but I'm not sure third parties can challenge an unappealed injunction from another court in this kind of case; it would seem to undermine any norm of finality, because people could keep on bringing challenge after challenge to supposedly resolved cases. That's why there's a time limit for appeals. I extend to you the same challenge I extended to MineralMan: could you please point to a knowledgeable source claiming otherwise?

[POAS]

38. It wouldn't necessarily be an appeal but rather

a new case brought once the implementation under the District Court ruling.

I found one possible group at Baptist Press that would have standing, backing and desire to take on such a case. Below is and excerpt from the linked article:

"Marginalizing a large group of chaplains, then, will unavoidably harm readiness by diminishing morale," the letter said. "Similarly, making orthodox Christians -- both chaplains and servicemen -- into second-class Soldiers, Sailors, Airmen, or Marines whose sincerely held religious beliefs are comparable to racism cannot help recruitment or retention."

Keith Travis, team leader of the chaplaincy evangelism team at the Southern Baptist North American Mission Board, signed the letter. A former chaplain in the U.S. Army and U.S. Army Reserves, he said the chaplaincy "as we know it today hangs in the balance."

"It's a critical juncture at this point for ministry and chaplaincy," Travis told Baptist Press in April. "There are secondary and tertiary effects if this policy is overturned that will take place that people are not thinking about and they don't even see at this point."

Travis added, "It could limit our chaplains on what they could preach. Can they even preach about sin? Can homosexuality be called sin?"

So here is a group that is motivated and already laying the groundwork through their public statements to either appeal or bring a new case once implementation is started.


This is my second attempt to post this but the first went somewhere into the ether, if it shows up somehow I apologize for the repeat.

[Unvanguard]

39. Thanks for looking.

The fact that organizations are opposed to this don't mean that they have standing or a workable claim, though. I guess they could try a religious freedom claim, but they would lose (not even a close call) and they could do that even against a legislative repeal.

[POAS]

44. My point is not about

success or failure of any such case but rather about the delay it would cause. Potentially a delay that would tie up resolution for years in the courts.

[POAS]

54. Found another case that throws new light

on this discussion. It was referenced in another thread and I found the following article about a 2208 decision that upheld DADT in the 1st District.

http://volokh.com/posts/1213046684.shtml

[ruggerson]

53. But anyone can sue even if the statute is repealed by Congress

the Federal District Judge has already killed the statute.

Obama should declare victory, obey the ruling as the law of the land, and move on.

If they then want to symbolically repeal it in lameduck, great.

But no one should be appealing this case.

[POAS]

55. See post #54

It references another decision that appears to be in conflict with the current decision.

To my eye it would appear that absent a court ruling that resolves those opposing decisions the status of DADT remains unclear.

[treestar]

20. Why is this worldwide injunction legitimate?

Suppose some district in Louisiana made a worldwide injunction against paying out social security because it is unconstitutional?

If it's not even good law, it's not a good base to stand on.

[Unvanguard]

22. It would be stayed in ten seconds by a higher court.

Pretty much what will happen to this one, because it's been appealed.

But district courts definitely have the power to issue injunctions against parties to their case. Note how the Department of Defense has decided to obey it: they know it's legally valid.

[treestar]

17. It can't, but every other district still has it as an open question

And some of them will decide that it is constitutional. Those you'd want appealed, right? And if that circuit court decided it was constitutional too, you'd want that appealed to the SCOTUS regardless of its make up. And if unconstitutional under the law, even conservative justices have to respect that.

[POAS]

10. Having a district court ruling

in place does not preclude some group in support of DADT from bringing an action in another district where the outcome would possibly be different. If that group succeeded then you would have competing rulings on DADT and it would then go to the Supreme Court where a decision would be binding on all district courts on this matter.

Time wise this would drag out courts proceedings for possibly many years. Remember that the Log Cabil case was originally files in 2004 and now 6 years later we are finally getting a district court ruling.

If on the other hand the DOJ appeals the already settled case moves into the appeals process and eventually to SCOTUS on a much faster track.

Using a two track approach by forcing the appeals process and putting pressure on the legislature to repeal DADT the likelihood of a permanent and unambiguous resolution is enhanced. These two tracks will end DADT in a way that precludes its resurrection short of Congress passing a new law which would come under immediate Court review based on previous decisions on the matter.

[sabrina 1]

12. Waiting for an appeal from Congress is likely to take years.

There is only one way to do this and that is with an EO from the President. Sure it could be overturned, but not for at least two years and hopefully six.

The elements are all in favor of this right now.

1) A judge ruling that the law is unconstitutional and the Pentagon already operating according to the ruling.

2) Huge public support for it so no political risk to politicians for doing what is right.

3) The new study proving the President HAS the authority to do it.

Doing this would stop the bleeding of Gay Soldiers being dismissed simply for being Gay. Over the course of six years, with the public already overwhelmingly behind the repeal of DADT, and the military having accepted the new policy, it will be very difficult for Republicans to reverse that policy.

Meantime, none of this stops the process of working towards repealing the law. The chances of Democrats retaining a majority if they stand up for the issues important to their supporters, are far greater, so we will have to worry less about a Republican takeover.

And six years from now, Democrats can make this a real Campaign issue, with Gays having served openly and proudly for so long, Gay troops can openly support Dems in their political campaigns as U.S. Troops.

This feeble argument that people should be allowed to suffer the injustice of not being treated as full citizens of this country, when there is a perfectly legal and effective way to grant those rights, is just sickening to be honest.

I am unrec'ing this thread because I do not believe that making excuses, delaying justice for any segment of the population should even be considered especially by Democrats, when there IS a way to more or less painlessly end the discrimination.

Unlike those who unrec. without explaining why, I wanted to make clear why I disagree with all efforts to delay justice.

[MineralMan]

15. Actually, an EO from the President would be vulnerable to

adverse rulings from the judicial branch. Because of that, it would still be impossible for service members to feel confident that they were free from the possibility of separation. For someone seeking a military career, uncertainty is not a good thing. Two years is nothing in that situation. There's the problem, from the service member's position.

I don't care if you unrec the thread. That never matters to me. I'm only interested in the discussion, so thanks for joining it.

[sabrina 1]

19. I don't like silent disagreements with no explanations on a discussion

board. That is why I explained the unrec. Unrecs don't matter to me either what matters is discussion and a silent unrec avoids discussion.

As for legal challenges to the President's EO, that is VERY unlikely especially in view of the study by Military Law Experts which puts him on firm legal ground to make that decision in a time of 'national emergency' which we are currently in and likely to remain in.

See here for details that will help you understand why that is unlikely http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9318975

So, considering these facts, do you believe that Gays should wait years while Congress debates this issue with even some Democrats opposed to granting them their civil rights? Or should the President act now since he can, and stop the dismissals while we wait for Congress, which will be far more likely to do what is right, once it has already been done?

Congress has already rejected a repeal. So I don't know why anyone thinks that with a Dem majority it was impossible to get a repeal, it will be any easier should Dems lose any seats in November.

[MineralMan]

26. Well, I think the rejection of that repeal was more a strategy

because of the upcoming election. The repeal was an amendment to a military funding bill. That bill must, and will be, passed. Once the election's over, it will be passed. I suspect that a few Republicans will support the repeal of DADT after the election. It's just that, near the election, that's impossible. I don't know this for sure, but I think it's clear that DADT no longer has the support it once did. GLBTQI rights are at a point where the time has come. I think you'll see that shortly. Just my opinion, of course.

[sabrina 1]

37. Well, I hope you are right. But I have watched Republicans

for long enough to know that when they don't want something, they fight for what they do want. They organized to vote against that bill even though it could have had adverse affects for them in this election.

Trusting Republicans to do what is right is not a very good strategy. Forcing them is a better strategy. That's why we fight to win. So that we have the means to act when they will not. I would never take a chance on something this important, based on a hope that Republicans will let go of their bigotry and vote for civil rights for people they actually do believe do not deserve them.

This is a religious issue for them, they are more than likely to demand that the amendment be removed from the bill, which I am certain they will do, with a promise that they WILL pass it if it is removed. And Democrats are likely to give in as they usually do, for bi-partisan reasons and to get the bill passed. Assuming they are still in the majority. If they are NOT, then the President will have no option but to issue an EO as that amendment will disappear as soon as they are sworn in should that happen.

Like you, this is just my opinion and I hope I am wrong.

[Renew Deal]

23. My problem with the executive order method is what you broght up.

Some crank can just reinstate it or worse down the road.

[readmoreoften]

24. Meanwhile, the LGBTQI people in that position have spoken for themselves and they don't need you to

fantasize from your own non-LGBTQI experiences about what you think they might feel.

They're chaining themselves to bars and appearing in public fighting the end of DADT. And I guarantee you not one is sympathetic--not one--with the decision to attack the overruling of DADT.

[MineralMan]

30. I'm not fantasizing, and there are many people serving today

who are not chaining themselves to bars or appearing in public. Instead, they're keeping silent and being afraid that their military careers will be ruined unless they do that. I knew some of them when I was in the USAF, and know others now. The ones who succeeded in keeping their lives secret are all retired now from the military. The ones who didn't got tossed. And that was before DADT.

Thanks for replying to my post.

[treestar]

60. Anyone, straight or LGBTQI can rely too much on their feelings

Looks like that is the path you are taking. But it blinds you and makes you enraged when you don't need to be. This appeal is just not what it's being made out to be.

[Cronus Protagonist]

27. Oh, so THAT'S why we should shut up and let them FUCK US one more time?

The Obama administration is APPEALING a FAVORABLE (to gays) decision in order to HELP us by CONTINUING an UNCONSTITUTIONAL rule that puts LGBTI people OUT ON THE STREETS, JOBLESS and DISGRACED?

What the FUCK are you smoking?

What the FUCK happened to CHANGE?

[MineralMan]

32. Well, thanks for replying to my post. I think, though, that you

missed the point of what I was saying. I'm not smoking anything (well, I do smoke cigarettes) and I voted for change, just like you did. It's coming, too. I want DADT ended very much. I want it ended completely and permanently. I'm sure there are lots of people now serving who want that same thing. I don't think they'll feel confident with a temporary end that can be overturned. I really don't.

[Bluenorthwest]

50. The words of Lt Dan Choi:

"I commend Judge Phillips, Alex Nicholson and the Log Cabin Republicans for their firm stance in defense of the First Amendment and their unwavering support of our national security. I demand President Obama and Senator Reid do the same, as our moral obligations compel us to strike down injustice and discrimination wherever it exists.

Judge Phillips has forthrightly exercised her unquestionable moral authority and lived up to her mandate to defend our constitution against a most vicious domestic enemy: discrimination against honest Americans. At a time when patriots suffer oppression for simply expressing truth and love, it is morally repugnant for any leader to delay justice based on self-interested timelines of political expediency.

I implore President Obama and his Justice Department to refuse lifting a finger, refrain from wasting any energy, statements, or money defending "Don't Ask Don't Tell" in the court system. His constitutional and moral obligations are most compelling at this historic time."

[treestar]

58. Out on the streets jobless and disgraced?

You're the one smoking. The military isn't the only thing in the world. The right to be in the military is an odd thing for the whole issue to float around.

[The Philosopher]

29. If it began as an act of Congress

it can begin again as an act of Congress.

[JuniperLea]

31. Once it's gone...

I don't think it would come back that easily.

[MineralMan]

34. I agree with you on that. The conditions have changed. The tide,

I believe, has turned on these issues, and will not change. Like many civil rights issues, there comes a time when there just isn't support to continue doing the wrong thing. The energy just isn't there. I think we're at that point with GLBTQI rights.

[JuniperLea]

42. I do too...

We are at that point. Civil rights issues are more like that than any other legislation that I can tell. Slavery, the black vote, the women's vote... and though Roe v Wade is often used as a scare weapon, it still stands.

[MineralMan]

33. Personally, I think the time is past when DADT could be enacted again.

I don't think that will happen at all. The only more permanent end to it would be a Constitutional Amendment. That, though, I do consider to be an impossible goal. Failing that, repeal by Congress is the most likely and best option that is currently available. I'd rather see the SCOTUS declare it to be unconstitutional, but I don't see that ruling coming from this Supreme Court. Not now.

[Tx4obama]

35. To the folks that want a 'judge' to rule instead of Congress to vote...

Federal judges at the district level shouldn't be 'changing' the 'laws' that Congress enacts.
DADT needs to be changed by Congress which would make it permanent.

How would every one react if a federal judge rules that the new Healthcare Reform Act is unconstitutional and orders an injunction to suspend the new laws regarding Healthcare?
We can't have it both ways.

It is best in the long run to let Congress enact and/or repeal 'legeslative laws' and not a federal judge at the district level.
The SCOTUS is a different matter.

[MineralMan]

36. Yup. I realize that patience has run out on this issue.

And justifiably so. But a permanent solution is the only acceptable resolution. Halfway measures that may not stand the test of time just won't do. Too many people's careers and lives are hanging on this. It must be resolved properly and permanently. From what President Obama has said on the issue leads me to believe that he wants a permanent, solid end that can't be challenged by anyone. And there are plenty of people out there who will challenge any non-legislative solution. Given the current courts, they might just win, too.

[treestar]

61. Yes and if DADT were found unconstitutional in the SCOTUS

any future teabagger Congress with a Rethug President could pass another statute that avoids the problems.

Though I don't see the government interest in it, really do not. What's it to the military whether any member is gay or not, and why cut off any group when the military needs people? How can they make out even a rational basis?

The cases on women in the military might be instructive. But one can imagine, if sexist, some reasons for not having women in the military. But gay men - makes no sense.

[crazyjoe]

40. If obama declared he would never end DADT and gay people should stay in the closet

some here would say it's all part of Obama's genius to end DADT, and any form of GSBT discrimination forever. It's really kind of comical and sad at the same time to watch.

[VMI Dem]

41. +1

[MineralMan]

45. But, he has never said any such thing. And he won't.

[FreeState]

57. But I've never heard him say Transgendered Americans deserve to to serve

got a quote one that?

[treestar]

59. This is not true

In fact, the opposite is true. Obama hasn't vetoed a repeal bill that passed Congress, but from the way some talk about it, you'd think that was what he'd done.

[Ignis]

43. Caution does not excuse political cowardice.

1. Stop the bleeding (via EO if necessary).
2. Fix the problem permanently.

The idea that these two efforts cannot happen concurrently is ludicrous, and not a single gay servicemember I know wants to continue to live in fear.

Stop. The. Bleeding.

[NJmaverick]

46. K&R

[MadHound]

47. First of all, the legislative route would be the best way to go, I agree with you,

However in the meantime, let's stop ruining hundreds of people's lives, have Obama issue an EO to halt DADT procedures while the matter winds its way through Congress, and refuse the appeal.

The fact of the matter is that neither of these actions could be challenged in court, or at least not successfully. And it would end the travesty that so many people are experiencing.

Allowing hundreds of good soldiers to be kicked out while a dubious legislative path is followed is simply inhumane and unnecessary.

Besides, given the Dems lack of spine, and an upcoming 'Pug Congress, it is doubtful that a legislative remedy is coming anytime soon, so why not pursue every remedy possible?

[TheKentuckian]

48. Right on. At some point you have to say not on my watch and stop doing wrong even when you can't set

the world right, never to go off track again. Break the status quo and dare the next fuckwit to restore it.

[Bluenorthwest]

49. Lots of imagination being used when all you have to do is ask

actual gay service members and those discharged. I'll take Dan Choi's opinion over a straight civilian any time. Odd that you yourself do not look to those brave men and women for your answers, as they are real, living humans, and they are right there taking emails and questions.
This is an OP that might have value if gay people were theoretical, but we are not.

[rusty fender]

51. Legislatively reversed yes, but the House has voted already to reverse

DADT, but the Senate won't. If you think that the next Senate will reverse it, you'd be wrong.:shrug:

We might as well rely on the courts until we have a Senate that will vote to repeal DADT, and that may not be until 2525.

[ruggerson]

52. Your OP is based on an incorrect premise

IF Obama's DOJ doesn't appeal, the law is dead.

No one else has standing to appeal except the government.

The only way it could be reversed is if a future Congress and President tried to resurrect it.

But that could occur even if it was repealed legislatively.

Theh law has been declared unconstitutional by a federal court.

The discharges have stopped - the statute is dead.

Why resurrect it through appeal?

[FreeState]

56. Take the T and I out of GLBTQI for this - repealing DADT does nothing for transgendered

or intersexed unfortunately

http://destrantalk.blogspot.com/2010/02/if-dadt-is-repealed-would-transgender.html