How do we know SCOTUS will uphold the 9th Circuits ruling on DADT?

[riderinthestorm]

Isn't that a bit risky? There seems to be an assumption made on the part of those who are encouraging/supporting the Justice Department's appeal of the DADT ruling (that it's unconstitutional) that the SCOTUS will uphold that.

I don't share that confidence. What happens if the Supremes overturn that ruling? DADT is enshrined... forever?

I'm really uncomfortable with the tact that the Obama Admin is taking on this. If the Justice Department prevails, this Admin goes down as the one making DADT almost untouchable. And now they are trying to get a stay on the injunction. If they win that stay, there won't even be any "history" within the US military of openly serving gay members (without causing any "harm" - I have to add I suppose for those who don't automatically "get" that point), that the GLBT community can point to. It would be great if there could be a few years of open service to dispel the despicable notions that are being floated for why gays can't serve openly now. I almost don't care how that open service gets to occur - whether through this ruling, or because Obama finally did the right thing and placed a moratorium on enforcement or whatever. If there were a long period of a few years of that kind of open service, it would destroy their own arguments.

[Ozymanithrax]

1. We don't, We simply must wait and see.

If they uphold the case, good.

If they don't, something else must be done. If it is not overturned, it will be necesary to revoke DADT through the normal process. That will depend on the makup of Congress how soon that happens.

Because the military is now activly recruiting gays and moving to rewrite UCMJ regulations, it appears that they feel it will be removed, either by the courts or by Congress.

[riderinthestorm]

3. If SCOTUS determines DADT is constitutional I fear we will lose this window for another

couple of decades. Our cowardly Congresspersons were too afraid to touch it even this summer, with 70% (+/-) of Americans supporting it's repeal!

There's no way in hell Congress will go after it again if the Supremes rule it's constitutional.

I'm not nearly so sanguine that the GLBT community needs to "simply wait and see". I can understand their outrage at this Admin's actions on this. The military must be furious at being left in this spot. And I'm sure they probably can't wait and see. Wait til the first gay service members enlist who can't legally marry because of the state their stationed in, yet still want spousal rights etc. etc....

[Ozymanithrax]

7. Decades, no. This issue isn't going away.

If the military thought it would go away, they would just process Gays under Article 135, which makes it illegal to be gay in the military and punishes them with prison time as it was done before DADT. The fact that they are rewriting regulations and activly recruiting Gays shows where this is heading. It can cost up to a million dollars a person to train an infantryman for combat, and for officers and pilots, much more. The military will not throw that money away. They need boots on the ground in distant places to kill people.

A big wave kicks it down the road one or two election cycles. DADT and gay marriage will be issues in the 2012 Presidential elections. Republicans are on the wrong side of history with this. The time has come.

[zipplewrath]

2. A very strange place indeed

The trends are all favorable. So one can understand a desire to have congress repeal this thing more formally. But alternately, we are entering a really absurd period of time in this change. The courts have ordered them to stop. The DoD is accepting enlistments. They are also forbidding "3rd party" outings. All the polls favor repeal. The DoD has stopped invesitgations and expulsions.

The one entity that is pushing to continue the policy, and to restart investigations and expulsions as well as reversing the policy of allowing enlistments is.....

The White House. The "fierce advocate" himself is working to undo all of these short term gains.

Quite honestly, the most enduring "change" that could come here is for the ruling to stand, and for the law to be considered unconstitutional. That would prevent any future administration from reviving this law, in any form, ever again. But that is the change the White House is fighting. Changing the law through congressional action, while more permanent than an executive order of any type, would actually be LESS permanent than a court ruling that it was unconstitutional. And yet the administration will fight all the way to the USSC to prevent that from happening.

[sabrina 1]

6. Very well said. And none of the excuses they have given

for doing what they are doing make any sense and are easily debunked.

Any sane person can see that this is a moment in time that needs to be grasped firmly and held and the way to do that is to add an Executive Order which stay in place for at least two more years and to drop any appeals.

The worst odds that DADT will be overturned lie with Congress. They have already rejected any repeal of the law.

It would be like going shopping for shoes but try to find a way to get them in a Horse Feed store because you believe that one day the owner of the store will expand it to include the sale of shoes.

I believe the Fundies in the military do not want DADT to end and are the ones behind the nonsense that the Military needs years to adjust to any new policy.

I hope this drags out because the longer the law is not in effect, the harder it will be to return to what is clearly an unconstitutional policy.

[zipplewrath]

11. They are following history, not leading it

There are many metaphors for this, but they are basically in the mode of "please tell me where they are going, I must find them, I'm their leader". Virtually no one could complain if he declared that the current environment was creating a capricious application of the law and that until the DoD finished its review, and the courts have had a chance to finally rule, he was suspending investigations and prosecutions. Virtually no one could complain since he's under a court order to do just that. And in the context of Congress' actions, and overarching trend of history, it would be the humane thing to do.

[Ineeda]

4. I believe it's a two-pronged attack against DADT --

legislative AND judicial. Congress made the law and can repeal it (and all signs point in that direction.) However, legislation could be reintroduced again, someday, though that is unlikely. By appealing the district court rulings, which force it to SCOTUS, the law can be ruled unconstitutional. This will put an absolute, definitive end to this law. Whether the Roberts Court will come through, is another question. Either action, or both, but particularly SCOTUS, will rid us of the nightmare of DADT. This is the way I understand it, anyway.

[riderinthestorm]

5. What signs point you in the direction that Congress will repeal this law?

I'm really curious since the first stab at it took place this summer and failed.

The Rethugs that might have voted it out (like Collins and Snowe) even chickened out by saying they wanted to wait for the results of that despicable (and deeply flawed) study. If SCOTUS rules it constitutional don't you think that gives them even more cover to "just say no" on repealing DADT?

[Ineeda]

10. Two words

(dog whistle for Rethugs) "national security." Don't forget, the vote was stopped by a filibuster, not an actual vote. And I doubt SCOTUS will deem it constitutional. There's a really good Maddow Show video clip at link explaining why what the administration has done is a good thing. It's 11 minutes long, but start at about minute 5. It might put to rest the whole "betrayal" meme we see here.
http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#39679402

[Ozymanithrax]

8. If the Roberts Court should declare it unsonstitutional...

then, it would be very difficult to bring it back. Compare this issue to abortion. They've been trying for decades with only marginal success. I suspect DADT and gay marriage will join abortion as perennial favorites by Conservatives for amendments to the Constitution.

[Statistical]

15. and if the Roberts court (no friend to progressive causes) finds it Constitutionally? n/t

[ieoeja]

16. Then the lame duck Senate stops filibustering the repeal.

The Maine and Massachusettes Republicans will probably let it come up for a vote.

[Ozymanithrax]

30. Then it must be revoked by act of Congress.

Now McCain has promised to filibuster the revocation of DADT, so I don't think it will pass the Senate. In the lameduck session they would have to get every democratic vote and pick off two Republicans. I don't think that is likely.

In which case, it would wait until the 2012.

Now, if the military commission comes back with their study saying that revoking DADT is for the good of the Service, that may change. But that is another of those things it is necessary to wait for.

[librechik]

9. SCOTUS works hard to protect the conservative agenda

I wouldn't count on them.

[treestar]

23. Not true. They do have to follow the law

They found some of Bushco's claims unconstitutional, when it came to detaining suspected terrorists or claiming the entire planet was a war zone they could detain anyone in without probable cause. There were a few such cases that even the SCOTUS of 2005 found the right way.

They are bound by the law, not just purely political.

No one on DU has the patience or time to look into the law, either. Why assume it is going to be found constitutional?

[Statistical]

31. They interpret the Constitution.

Your belief that just because they have to "follow" the law means it will work out is naive (at best).

Dred Scott decision? Plessy v. Ferguson?

"They are bound by the law, not just purely political. "
In theory maybe but in reality they Constitution is rather broad and open to interpretation. Justices can easily reach virtually any conclusion as long as sufficiently sound arguments are made.

[librechik]

33. I didn't realize detainee cases made it to SCOTUS

except for Hamdi? They were bound by law in Bush v Gore and Citizens United, too. Then they ignored it.

[Proud Liberal Dem]

12. DADT won't be enshrined forever

if Congress eliminates it first, which is what I think that President Obama is hoping happens first- at that point, of course, the whole constitutional questions becomes moot. Even if, just for argument's sake, it gets to SCOTUS and SCOTUS upholds the constitutionality of DADT (which I believe is the legal question at hand), I don't believe that that would prevent Congress from repealing it. :shrug:

[Statistical]

14. OF course it wouldn't however if SCOTUS finds it Constitutional...

that means a repeal is just "allowing" gays to serve while saying they have no "right" to serve.

In 2 years, 10 years, 50 years DADT (or some worse variant) could be passed and that would be 100% Constitutional.

[Proud Liberal Dem]

17. Theoretically yes

Practically speaking, once DADT gets repealed by Congress, there would have to be a serious concerted effort and the means to get it back on the books and logically speaking, once gays and lesbians are serving openly for an extended period of time without any difficulties (which I'm sure there will be none), there will be little or no motivation- let alone means- to re-institute the policy now or forever IMHO. DADT was a compromise anyway and wasn't even as potent as the gay ban that (I believe) a veto-proof Congress was prepared to pass if Clinton signed an executive order lifting the ban entirely. DADT hasn't even worked as intended (which is not surprising as bad policy NEVER works to begin with :eyes:), so who's going to find the votes to put it back in place at some future date? :shrug:

[riderinthestorm]

18. I just find the assumptions here at DU that Congress WILL appeal DADT

or that this Supreme Court WILL find it unconstitutional to be really hard to swallow. You obviously take it as fact that it's going to happen in Congress. It's already failed once and due to some pretty ridiculous reasons. The survey (no matter what it says, it will be spun in any direction anyone wants) will give the Rethugs even more ammunition to kill it. They're way better at spin than the Dems.

As to your point "who's going to find the votes to put it back in place at some future date"? Well, $$ buys virtually anything in Congress. It bought GW Bush the White House. It bought a crap HCR bill that killed the public option. I could name a thousand things that I never thought would get enough votes in Congress but voila! Shit happens, practically speaking.

[Proud Liberal Dem]

19. Nothing is certain of course

However, I just don't see how DADT will be able to persist in any circumstance over the long term. It's being progressively weakened by court cases and public opinion is shifting overwhelmingly in favor of repealing it. The "dead-enders" like McCain, et. al whom are still doggedly defending the policy have been pretty much reduced to parliamentary tactics (i.e. filibustering) in order to keep Congress from giving President Obama the authority to rescind DADT. On an up-or-down vote, the few surviving defenders of keeping DADT know that it won't survive, which is why they're fighting so ferociously to keep it from even coming to a vote. I'm hopeful that it will get repealed in a lame duck session of Congress, which would be the best and most permanent outcome IMHO.

[Statistical]

21. I agree it is only a matter of time. Public opinion has shifted. We are seeing history.

I just fear it may be a situation that due to timidity on the part of Congress & the President this abomination *could* go on for some time. It is inevitable that DADT will be trashed just like Seperate But Equal or the 3/5th compromise.

Sadly I hoped we would see some leadership from Obama & Dem Congress at a time where we are at the tipping point when it comes to ending DADT forever.

[Proud Liberal Dem]

27. What lack of leadership are you referring to?

Obama has apparently been laying the groundwork (within the military) for eliminating DADT ever since the beginning of his administration and working with Congress to develop a legislative strategy for repealing it and they've already put it up for a vote once and AFAIK plan to do so again. It would've been history already if it had actually been allowed to come up for an UP-OR-DOWN vote (funny how those used to seem so important to the Repubs when they were in power, eh? :eyes:). Folding it into a Defense Authorization Bill was a smart move and I don't know how the Repubs are going to be able to stave off a vote on it forever, particularly given how much they SAY that they *support* the troops and all. :eyes:

[Statistical]

13. What happens if the Supremes overturn that ruling? DADT is enshrined... forever? YES.

Even worse even if it is repealed by Congress it will only be repealed BY CHOICE. There will be direct precedent that banning homosexuals from military service is 100% Constitutional. That means it could be "rebanned" again in the future.

Going to SCOTUS and losing would be massive. While it is possible that in the future gay soldiers would be "allowed" to serve it would be indicating they have no "right" to serve.

[Lyric]

24. I don't think you quite understand how judicial review works.

The SCOTUS does not pass laws. It simply decides whether or not challenged laws passed by legislative bodies are Constitutional.

Just because the SCOTUS rules that Congress CAN pass a law, that doesn't mean that they HAVE to...or that they couldn't repeal it if they did. ANY Congressional statute or Executive Order can be repealed, revoked, and/or nullified by the body that has authority over it, regardless of whether or not it's Constitutional. If Congress passed a law tomorrow that required all cars sold within the USA to have hybrid or electric engines, it would be Constitutional. Congress has the final authority over interstate commerce, and they get to decide what the regulations are going to be. However, they could also repeal that law, even if the SCOTUS had ruled it Constitutional, because a SCOTUS review doesn't decide whether or not a law is "right". All the SCOTUS determines is whether or not Congress (or whatever other legislative body) was acting within their Constititional authority when they passed the law, and whether or not the law violates the Constitutional rights of the people challenging it. That has nothing to do with whether or not the law is made "permanent".

[Statistical]

28. maybe you should reread what I wrote.

I never once said Congress would have to keep DADT.

If SCOTUS determines that there is no Constitutional right for a homosexual to serve in the military than any future repeal would be merely "allowing" them to serve. Also a ban could be enforced at any point in the future. There is no Constitutional issue so Congress can ban them at any point it choses to do so.

While it (SCOTUS saying Constitutional & Congress repealing) would allow gay soldiers to serve it would be pathetically sad. It would be the equivalent of saying to blacks during the civil war. Look you really ARE nothing but property but we the 108th Congress being rather generous will "ALLOW" you to be free. Now don't get too uppity some future Congress could decide to make you slaves again but in the meantime enjoy you freedom.

If SCOTUS determines that DADT is Constitutional it would be an utter miscarriage of justice. Now could Congress still repeal DADT? Of course (I never claimed otherwise) it would however be a declaration that while gays may be ABLE to serve in military they have no RIGHT to serve in the military.

[Lyric]

32. Okay. I agree that such a ruling against DADT would be a miscarriage of justice.

But please understand--the 9th circuit ruling was important. I totally agree with it. And if Obama appeals it to the SCOTUS and the SCOTUS does the unthinkable and overrules it, then we'll get it repealed through Congress, wait until we have a friendlier SCOTUS (Scalia and Thomas have to retire SOMEDAY), and bring it up again. SCOTUS rulings are not forever; Lawrence overturned Bowers, and a future SCOTUS can overturn this too.

But I'm not convinced yet that the SCOTUS is going to overturn the decision, to be honest. Scalia, Alito, and Thomas will certainly vote to overturn, and Roberts probably will too, but I don't think that Kennedy will. Kennedy joined the majority in the Lawrence decision, so he's got a history of being open-minded about sexual orientation. We have Kagan, Sotomayor, Breyer, and Ginsburg on our side--we only need one defector to prevail.

Don't give up hope quite yet.

[Statistical]

34. I am not giving up just suggesting that Obama appeal is needlessly reckless.

While Supreme Court decisions "can" be overturned bad ones (even the worst) ones tend to last a generation or two. Supreme Court is very reluctant to overturn itself even in case of bad decisions.

The idea that SCOTUS could find it Constitutional and then 2 years later SCOTUS find it Unconstitutional is not back up by any historical precedent.

I believe eventually gay soldiers will be able to serve without discrimination however I believe the actions of the Obama administration are serving to only make that day further away, not closer.

[EFerrari]

25. So, as far as I can tell, Obama is taking the riskiest way forward possible.

He's NOT protecting gay service people with this appeal in any way.

[Statistical]

29. I agree. It is very dangerous especially w/ current court.

It *may* all work out in the end (all that 3 dimensional chess stuff) but it is about the worst possible way to achieve change.

Not appeal (or seeking a stay) would allow integration to start right now. It would be years before Congress and/or some future President could re-restrict the rights of gay soldiers. By that time public opinion would likely have shifted even further against DADT making the entire issue moot.

By Obama actively blocking the issue the risk is that
a) Congress doesn't repeal DADT in lame duck session (and then certinly won't after Republicans gain seats)
b) SCOTUS rules that DADT is constitutional.

We would go from DADT at the tipping point of being gone forever back to solidly in place for years at least.

[Lyric]

20. Nothing?

At the very worst, it will go back into effect until Congress repeals it. Just because something is Constitutional, doesn't mean that it HAS to be a law. Congress can still repeal it if the SCOTUS says that it's Constitutional.

In the meantime, we'll have had a period of time in which gays were openly serving--a time period we can point to and say, "See? Nothing horrible happened." That's pretty good ammunition against the political arguments in opposition to repealing the law.

[treestar]

22. No it's not untouchable

Congress often passes new laws to overcome Supreme Court objections.

And what good does a partial ruling do? Some circuits could find otherwise, would you want those to stay unappealed, due to fear of which way the SCOTUS would rule?

It would get to the SCOTUS anyway. One cannot demand that the SCOTUS not hear a case. They could take it up from another circuit.

Making it so the Repukes cannot make the appointees should be the first concern of anyone who really cares about anybody's rights.

[Cleobulus]

26. The only way Congress can get around a Supreme Court ruling is if the...

ruling itself allows it under restricted circumstances(think Roe v. Wade), if a Constitutional Amendment is passed overturning the decision, or if a future court overturns the decision later. Oddly enough, I just created nonsense because none of these actually involve Congress directly.