Judge Phillips' order killing Don't Ask Don't Tell is a bird in the hand

[ruggerson]

A possible Senate repeal in the lame duck session is not a certainty.

Why would the administration want to gamble with the lives of gay and lesbian servicemembers?

DADT is currently killed by court order. It is not in effect.

If the DOJ doesn't appeal Judge Phillips' ruling, DADT stays dead.

Does the military so desperately need six more weeks for its "review" to be finalized that it would jeapordize the outcome?

Mr. President, tha answer is simple. Do not appeal the ruling, tell the military to finish its "review" immediately - and then start implementing new regulations.

You can use the Executive Order now. Rmember, the law is dead so the "it has to be repealed by Congress" argument no longer applies.

[msongs]

only for people who really want DADT killed. nt

[DeSwiss]

1. DADT they'll defend.....

...and the prosecution of marijuana users as well.

- Meanwhile war criminals get a free pass because that would mean looking back.......

K&R

on edit: spelling

[RandomThoughts]

2. heh, they don't get a free pass.

Unless you trust in their only method of getting anything. consolidations of money.

[stray cat]

3. And can be as transient as a bird in the cats paws

[ruggerson]

4. actually Judge Phillips' ruling is just as binding as legislative repeal

the only way to reverse it is if a future Congress and President passed a new statute.

Which could also happen with legislative repeal.

[GodlessBiker]

5. Obama will have a lot of explaining to do if the lame duck Senate ...

refuses to repeal DADT and the new even more conservative Senate fails to even consider it.

He could let the court decision stand and also have the Senate repeal it.

[ruggerson]

6. legally, hs is also now at liberty to write an Executive Order, since DADT is not in effect

[Historic NY]

8. Unfortunately the Supreme Court can strike down his Executive Order....

and the Roberts court would there is no doubt about that.Remember this is only a ruling by a lower court.

[ruggerson]

10. Wouldn't happen

SC historically defers to CIC in military cases.

DADT is not the law of the land anymore. (Unless the DOJ wins a stay and/or appeal).

So an executive order is now well within his power.

[Ozymanithrax]

7. Obama can not legislate...

If Republicans decide to filibuster the attempt it won't be Obama's fault.

[ruggerson]

9. The law is currently dead

he is free as CIC to write a sweeping Executive Order

[Ozymanithrax]

12. IF it is dead he doesn't need an executive order. n/t

[ruggerson]

14. The demise of the law simply means there is nothing explicitly forbidding gay and lesbian soldiers

But currently there is no anti discrimination language - he could implement that by an EO.

[Ozymanithrax]

15. Look up article 125 of the UCMJ. More needs to be done. n/t

[Ozymanithrax]

13. If the law is dead, Article 125 of the UCMJ must be fully enforced...

Punitive Articles of the UCMJ
Article 125—Sodomy
By Rod Powers, About.com Guide
.Filed In:US Military
Text.

“(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient
to complete the offense.

(b) Any person found guilty of sodomy shall by punished as a court-martial may direct.”

Elements.

(1) That the accused engaged in unnatural carnal copulation with a certain other person or with an animal. (Note: Add either or both of the following elements, if applicable)

(2) That the act was done with a child under the age of 16.

(3) That the act was done by force and without the consent of the other person.

Explanation.

It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.

[ruggerson]

16. yes, you've answered your own question

that is why ideally there needs to be an Executive Order.

Even if the Senate passes the repeal, there will stilil need to be something, because Obama and the military stripped the specific anti discrimination language from the compromise bill, presumably because the military didn't want it and also to make the bill easier to pass.

(btw, if that code was fully enforced, there would be no one left in the military)

[Ozymanithrax]

17. An executive order does not remove Article 125.

All it would do would be to stop the military from removing members from the military for violating DADT.

If DADT is just revoked, the military goes back to what it was before DADT, which makes being gay a violation of the UCMJ punishable by Courts-martial.

DADT needs to be revoked and Article 125 needs to be rewritten. This requires Congress, because Obama can not legislate.

Even if the Court finds that DADT is unconstitutional, it won't sweep away Article 125.

Which means that Congress must act to change Article 125, or someone will have to take that Article to court and have it revoked.

More needs to be done.

[ruggerson]

18. an anti-discrimination EO would be enough

I don't remember seeing heterosexuals being booted out of the services in great numbers for giving or receiving blow jobs.

[Ozymanithrax]

19. No, but they can be...even if they are married.

And while I was in, one person I know was passing around photos of himself snorting cocaine from a woman's vagina. Along with the drug charges, he was charged and convicted of Article 125.

So the military has and can use Article 125. Until DADT required the military to allow closeted gays to remain in the military it was the law and followed to the letter.

I'm just saying that more may need to be done than just an executive order or a court case.

[ruggerson]

24. I agree more needs to be done - but the Senate compromise bill doesn't do it either

The repeal bill does absolutely nothing but repeal the DADT statute.

Which is exactly what this Judge's decision just did.

[Ozymanithrax]

27. Which, if the military wants to be strictly within the lettter of the law...

means it is now illegal for gays to be in the miltary as it was before DADT was passed.

[ruggerson]

32. But you've said you want Congressional repeal rather than this Court ruling

why? When they both do the same thing?

[Ozymanithrax]

20. Exectuive orders are not permanent...The next President can revoke it

and go right back to the way it is now. For good order and discipline DADT needs to be revoked by congress, Article 125 needs to be rewritten to only apply to cases of rape or incest.

[QC]

22. Acts of Congress can also be repealed by future Congresses.

Hell, even constitutional amendments can be repealed, as happened with Prohibition.

[Ozymanithrax]

26. Repealing an act requires a vote by the House and the Senate,

followed by the Presidents signature, which may be vetoed.

Repealing an executive order is done by the flick of a pen.

Executive order can not repeal a law, at best it just means the executive branch will ignfore it.

Congress needs to repeal the law and make changes to the UCMJ.

[ruggerson]

31. we're not debating an Exec Order -vs a Congressional Repeal

We're debating a Judicial Ruling vs a Congressional Repeal.

[QC]

35. I am quite well aware that an executive order cannot repeal a law, thank you.

My point was that nothing this side of heaven is permanent, despite all the talk we hear around here of how only a legislative repeal will do, because anything else can be taken away.

Anything can be taken away, period. If this Congress repeals DADT, the next one can reinstate it.

I wish people cared half as much about those whose lives are being ruined as they care about the president's public image.

[ruggerson]

23. As I said upthread, t he current comromise bill can be

overturned by a future Congress and Prez also.

Plus, the compromise bill has no anti discrimination language in it any longer.
So, either way the President is going to have to do things the next President could theoretically undo.

The salient point is there is nothing more permanent about the Senate bill than this judicial ruling.

And we already HAVE the legal ruling.

[dsc]

25. actually a strong case can be made that Lawerence addresses that

I admit to not knowing 100% for sure, but a case can be made easily.

[GodlessBiker]

11. It will be his fault that DADT is not dead because he appealed the court decision.

He can't have it both ways, at least not without being an idiot.

[xchrom]

21. Recommend

[Prism]

28. People defending this appeal should be considered anti-gay from this point forward

It's one thing to passively, reflexively defend the administration's bungling and cowardice on LGBT issues.

It is an entirely different thing to advocate for the return of material harm to LGBT servicemen and women.

Those who defend and agitate for a DOJ repeal are actively promoting the destruction of LGBT lives. Right now, our LGBT service members will not be discharged, they will keep their careers.

If the administration appeals, more lives and careers will be destroyed.

What Democrat could possibly defend that? Anyone who does is not pro-equality. Sorry, you can't actively support needlessly destroying LGBT lives and careers and call yourself pro-equality.

It just doesn't work that way.

[Bodhi BloodWave]

30. so your saying somebody who wants to see it appealed up to SCOTUS

so that it can be struck down for good as unconstitutional is anti-gay?

Unless i understand the US justice system wrong it was a district judge who 'struck' it down yes, and their rulings are normally limited to the district they 'judge', as such if another district judge in another part of the country makes a ruling that disagree with the first judges decision then both would be valid within their area but would be 'competing' and would need to go to scotus to be solved which could take years.

one thing i don't know tho and wonder about is this: Does a district judge have the power and authority to make an global injunction?

To me that seems to be a tad above and beyond his authority, but i would be quite happy to be wrong and he can actually do that

[ruggerson]

33. That's exactly what she did

and yes she does have that authority. Read the ruling.

Don't Ask Don't TEll is currently dead. Why would we want to appeal it, thus reviving it?

[Prism]

34. It *is* struck down for good.

If the DOJ does not appeal, it's dead. Done. No one else has standing to appeal. It's over. The law is struck down. The only paths to reinstatement of DADT are Congress reviving it by passing another statute or an appeal by the administration, thus giving it new life.

An appeal by the administration would revive it, resume the discharges, destroy more lives.

This district judge does have the authority to make a global injunction. She made one, and the Department of Defense is abiding by the ruling as they are constitutionally bound to do.

[Jamastiene]

29. At this point, I believe the only way we will ever get rid of DADT

is for the DOJ not appeal the ruling, President Obama to write an EO, Congress to write a bill to make sure there is wording in there to end discrimination, AND for the original copy of DADT to be set on fire ritually after driving a stake through it then wrapping it in garlic and burying it. If they can find a way to put a couple silver bullets into that fucker too, that might help.

Even then, I'm not sure. I have never seen a law that was this hard to repel. Un-freaking-believable.

[laughingliberal]

36. K & R nt