Judge declares U.S. military's 'don't ask, don't tell' policy openly banning gay service members un

[Francesca9]

Source: LA Times

A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don't ask, don't tell” policy violates the 1st Amendment rights of lesbians and gay men.

Read more: http://latimesblogs.latimes.com/lanow/2010/09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html

[USArmyParatrooper]

1. I'm not a legal expert but...

This isn't lighting up headlines. Would I be correct to assume this ruling doesn't have teeth?

[Downwinder]

4. It doesn't set a precedent until it goes through the appeal process. n/t

[rasputin1952]

33. Actually, since it's a federal District Court, all courts w/in the

jurisdiction of the Court have to follow the rulings of the higher Court. There will be appeals and legal wrangling as it goes up the ladder, but the way the system works is that lower courts are required to follow the ruling of the higher court. That's what makes precedent.

If the USSC refuses to hear the case, that's it. Then again, I see at as highly unlikely, as this is prime territory for the SC. It will depend on their ruling after that, they can overturn the lower court, uphold the ruling or send it back to the District Court.

[awoke_in_2003]

109. But doesn't the military fall

under the juridiction of the UCMJ?

[rasputin1952]

111. Only in certain instances. The UCMJ was devised and revised to meet military criteria...

Nothing supersedes The Constitution as the supreme law of the land. There were specific regulations that dealt w/homosexuality in the military, these had to amended when the DADT policy was put in place. DADT was originally put in place to allow homosexuals to join the military, and would have been protection for them, but it did not work out the way it was planned, it became a burden on the military, and once some "told", there was no protection for them any more. In any case, under he UCMJ, one can appeal to the USSC and/or the president for relief.

But it all comes down to no law can supersede The Constitution.

[awoke_in_2003]

113. okay, thanks. nt

[jberryhill]

115. Ummm.... there are no "all courts within the jurisdiction of the Court"

A federal district court is the bottom of the ladder of the federal court system. There are no "courts within the jurisdiction" of a federal district court.

It is the entry level trial court.

[msanthrope]

120. Correct. It is 'persuasive,' at best. n/t

[rasputin1952]

122. This may sound odd, but all courts, including state, county and

municipality courts w/in the district are beholding to the district court decision. Also, under precedent rules a judge may decide not to honor said precedent if it is determined the decision has been wrongfully reached, (ie, a decision reached that is not within the law, attempts to create a new law, under duress or the previous decision was reached by illegal activity such as a bribe or for political purposes to which the law was circumvented).

[_ed_]

80. Nonsense

This ruling is now law for the jurisdiction in which the judge sits.

[Tx4obama]

7. It's lighting up the headlines and TV right now. n/t

[alp227]

8. CNN.com has this in a "Breaking News" banner right now n/t

[USArmyParatrooper]

10. Ah! There it is. I either looked too soon or missed it the first time (eom)

[mitchtv]

22. the Judge said that she will be issuing an injunction

to stop discharges

[MikeW]

24. I'll say it again

The Judge cant issue ANY injunction against the military .... ITS NOT IN HER AUTHORITY

Only the POTUS can order the military or the SecDef to stop discharges.

The Judge is basically blowing smoke .... she knows she has absolutly no direct authority over the miliary.

[happyslug]

27. No, Only a Federal District Judge can Issue a Court Order of this Nature NOT the Supreme Court

Now, the Supreme Court can rule that such a Court Order is Constitutional (or Unconstitutional, given the separation of powers AND the fact that the Military is under the President) but except in very limited cases can the US Supreme Court issue a court order (and those exceptions do NOT come into play here).

Just a point of law. Given the nature of the Military it will be up to the Military to follow this order or not, I expect the Military to appeal and this Order reversed upon appeal on the grounds the Courts do NOT have the expertise to decide on Military discipline and thus must defer to the President.

[MikeW]

29. exactly

A lot of folks in here are cheering that this will end it tomorrow.

It wont ... the military is under absolutely no obligation to follow a federal judge's order .. ehhhhm "suggestion".

[happyslug]

50. My point was the Court CAN issue this Order, it is the only Court that can do so.

What an appellant court can do is review it if it is constitutional or not. Once it is ruled Constitutional then the Trial Judge is the sole Judge who can FORCE the Military to obey the Order. The Judge even has the power to throw the Secretary of Defense in Jail for NOT following the Judge's Order. If the Military does NOT want to follow it, the Military must appeal and ask for a reversal of the decision by the Ninth Circuit Court of Appeals and if denied by the Ninth Circuit to appeal to the US Supreme Court.

[Downwinder]

55. I am sure that the DOJ and the military allready argued the jurisdiction issue.

If the judge heard the case without an appeal on jurisdiction it must be a settled point.

[pasto76]

66. no, not necessarily

when you are arrested by MPs, you are not read miranda rights. There are a lot of constitutional rights that do not apply to the military. Or maybe "have not been applied" to the military.

A commander or NCO can order you to be quiet, and it's a lawful order. As far as Ive seen since 1995, there is no "1st amendment" under UCMJ.
They banned, prohibited and obstructed soldiers from blogging back in 2003-2004. yes it was mostly bullshit, but it was also under their authority to do. They also blackout out communications on camps regularly when soldiers are killed or something major happens. This impinges on everyones 1st amendment "rights" (in quotes cause it dont exist in uniform).

There is a reason for Posse Comitatus. The military operates outside the norms of American society.

sgt pasto

[Downwinder]

68. When you are defending against an action. One of the first questions

is whether the Court has jurisdiction. If the Court says they do and you have a legitimate argument otherwise, you file an appeal of that decision before the case ever goes to trial.

[happyslug]

87. Miranda Rights are GIVEN to Prisoners by Military Police since WWI

Miranda just extended an existing FEDERAL rule dating form WWI to the States, prior to Miranda in 1969 many states had adopted the same rule, thus Miranda was NOT that much of a Change, the big changed occurred in 1914 when the Supreme Court Ordered FEDERAL agents to tell people their rights.

Now, MPs do NOT have to tell you your rights but neither do regular police have to tell you your rights. The only time any law enforcement officer has to read you your rights if you are a suspect in a Misdemeanor or Felony AND they plan to question you. If they just arrest you, they do NOT have to read you your rights, as long as their do NOT question you. That is the same rule for Police AND MPs.

As to the first Amendment, the Supreme Court has long ruled it is NOT absolute even for Civilians AND it applied to People on Active Duty. The Government CAN restrict any of the rights in the First Amendment in the name of Public Safety. Now the Government can NOT use that concept without just cause and the burden is on the Government Official who issued the restriction to justify the restriction. That is the same rule in the Military. Given the nature of the Military it is easier to justify a restriction as a Military Necessary, but even the Military has the burden to show the restriction is justified (Thus most are limited to scope and time, as such easier for the courts to defer to the Military High Command).

As to "Posse Comitatus" that is a post-reconstruction law imposed when the Democrats first regain control of the Federal Government under President Cleveland. The South had long complained by Federal Troops excesses during Reconstruction (The Military do such things as arresting whites for killing African Americans, protecting African American as their voted, making sure the vote count was accurate, NOT permitting Whites from stealing land owned by African Americans etc). The South did NOT those "excesses" to repeat themselves as the south adopted segregation (I am talking of the 1880s and 1890s here). Given the problems of the General Strike of 1877, the States did NOT want the Federal Troops used for putting down "Riots" and other public disturbances preferring their own National Guard for that purpose (Thus till the Dick Act of 1903, the Majority of money for the National Guard was from state funds NOT federal funds).

More on the General Strike of 1877:
http://www.socialistappeal.org/uslaborhistory/great_railroad_strike_of_1877.htm
http://www.ranknfile-ue.org/uen_1877.html
http://users.crocker.com/~acacia/text_gsif.html

[jmowreader]

116. Check Article 31, Sarge...

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

They don't have to tell you you're entitled to a lawyer without charge, because every GI is told that in basic training.

The major problem I see with the military court system is the prosecutors' Officer Evaluation Reports are commented on at some point by the division commander, and generals figure anyone who gets hauled before a court-martial is guilty. So...you let off too many people because...you know, they're innocent or something silly like that...and it impacts your future career.

[_ed_]

79. No

The appellate courts narrowly review the trial record. The standard of review is "clearly erroneous." All your stuff about the military and judges is completely wrong.

[happyslug]

107. Technically Correct, but in actual practice not.

While an Appellant Court can NOT re-ligate the facts of the case, i.e. MUST accept the factual findings of the Trial Judge, any Appellant Court can completely reject the findings of law those facts were applied to. For example, if I call someone a Lying Scumbag, the trial judge can rule that the statement is NOT my opinion but a statement of fact that is false and thus liable (opinions are protected by the First Amendment, but libel it not). On appeal the Appellant court can NOT rule that what I said was opinion, nor rule what I said was true, that would be an attack on FACTS of the case, but can rule that as a matter of LAW what I said is still protected under the First Amendment.

Now, if a Trial Court findings of fact is NOT supported by the evidence, on appeal the Judgment can be reversed, but that is a very hard to show for it is NOT reweighing the evidence but a clear showing that the Judgment is NOT supported by the evidence. If the evidence shows even some support for the Judgment, on appeal any Appellant Court will uphold the Judgment IF the grounds for appeal in that the Judgment is not supported by the evidence. Can occur, but extremely rare. The classic case was in the mid 1990s in Pennsylvania. A man was being sued for support by a woman who claim he was the Father her child. At trial the blood test was 99.26% positive (This was a per-DNA case). The alleged father said he was NOT the father and had seen the Mother go into truck stops and come out a few hours later with a lot of cash. The jury ruled in favor of the Father i.e. he was NOT the Father of the Child. The trial Judge entered a Judgment Not withstanding the Verdict (i.e. the trial Judge ruled that Jury decision was NOT supported by substantial evidence). On appeal it went all the way to the Pennsylvania Supreme Court which ruled that the trial court was WRONG in rejecting the Verdict of the Jury. In a jury trial, the jury and only the jury decides the facts of a case and as such that verdict MUST be upheld unless not supported by ANY evidence in the record. Here the Jury weighed the testimony of the Mother and Father and the Blood test and found for the Father. At trial and on appeal no court had to right to re-weigh that evidence and thus the finding of facts as found by the Jury MUST be upheld. I mention that case to show you how little ability any appellant court has to re-weigh the facts of the case.

On the other hand, findings of law can be reviewed in depth. In the Civil Rights Case of Brown vs Topeka Board of Education, the Supreme Court reversed the LEGAL findings of the Trial court (Which had upheld the segregation of Topeka's Schools) and said Separate but equal was inherently unequal and as such violations the post Civil War Constitutional amendments.

Notice the difference, on appeal, disputes as to facts are rarely grounds to reverse what a trial judge has done in cases where the trial Judge is also the Fact Finder (i.e. Non-jury trials). This is true even at trial if it is a Jury trial and the Judge disliked how the Jury determined the facts of a case. On the other hand if the dispute is based on what the LAW is, on appeal the court have complete authority to make a decision as to the law completely opposite of what the trial Judge found.

In most cases, there is no dispute as to law, the dispute is to the facts and as such no grounds for appeal. Technically an appeal can be made, but it will be denied. In Capital cases, the Supreme Court of the United States has ruled they must be an appeal, which almost always uphold the decision of the Trial Judge and Jury. Thus the appellant courts uphold 95% of the cases brought up to them for the law is rarely at issue, but in 5% of the cases the appellant court do find an error as to law and sends the case back to the Trial Judge for a new trial.

[_ed_]

78. 100% incorrect

There's quite a bit of incorrect legal information in this thread.

[boppers]

51. Not even the POTUS can do it.

It's a SecDef thing, according to current law...

http://www.law.cornell.edu/uscode/10/654.html

[LostinVA]

83. The POTUS most certainly can stop discharges

[msanthrope]

104. No--he can't. Neither can the Secretary of Defense.

You see, since it is a statute, discharges, mandated by Congress, must be repealed by Congress. Essentially, the "Don't Tell" portion of the regs are inflexible....if a serviceperson reveals themself, the military is obligated to act--they MUST act, per the DADT.

Where POTUS and the Sec of Defense have wiggle room is on the "Don't Ask" aspect of the statutes--i.e. how the military investigates. Gates already issued new guidelines as of this Spring to change how the services investigate, making it far easier for the military to turn a blind eye, or otherwise not pursue.

The Serviceperson's Legal Defense Network has done quite a bit on this issue. Because DADT is a Congressional mandate--there was a 'finding of harm'--by Congress, then the President and the Sec of Def. must have Congress reverse themselves. The stickler here, unlike with Truman/integration, is that you have a Congressional action, specifically finding harm by gay members.

It's why they push for repeal.

This sucks. Really does. But you must have Congress clean up their own mess.

[LostinVA]

105. Yes he can -- stop loss

[msanthrope]

106. I've posted on this before--'homosexuality' is SPECIFICALLY

excluded from stop-loss. So is pregnancy. So are eight other categories of condition.

Even is it were not specifically excluded, the fact that Congress made a 'finding of harm ' in DADT would preclude the use of gay soldiers, even if the President took the extrodinary step of suspending the conditions--if he could first justify a national emergency that required the calling up of more troops.

Look, if you don't believe me, read what the Servicemember's Legal Defense Network has done on this issue--sure, there are various 'legal' authorities on the internets who like to think that the President could do this with a stroke of his pen, but the people who know this issue--like the SLDN, support Obama and the repeal.

[rasputin1952]

123. You make an excellent point...

Once an individual "tells", they lose protection under the DADT; "Don't Tell" means precisely that, don't tell. If they remain silent on the subject, there is essentially nothing the military can do. As I stated above, DADT is a protection for gays and lesbians in the military or joining the military, it didn't work out the way it was supposed to, but the intention was there for protection.

All things considered, it was a stop gap policy, now, other factors have come into play and as this situation moves through the courts, it emphasizes the importance of basic human rights as pertaining to the GLBT community. While the military is inherently conservative and resistant to change, throughout history, it has been the catalyst for change. One of the most obvious being racial integration and women having MOS's other than nurse.The desegregation of the military helped to bring about desegregation in the country. These processes, initiated in the military, often against the will of those in charge at the time, have proven to be winners after implementation.

[No Elephants]

132. First,

no law, nothing, nada, zip, zilch, says the CIC is automatically and totally disempowered simply bc Congress (at the behest of a former Democratic CIC who was also looking to a Democratic Congress for political cover)decided to speak on a subject.

Second, Congress did not except homosexuality from stop loss. If indeed it is an exception at all the excep-tion would have come from an Ex. Order or a regulation made under the Ex. Branch.

Third, if Obama had been pushing his Democratic Congress to act on this, his apologists might have more cred. Instead, he's done his best to get groups like HRC to back off and bide their time while the Ex. and Leg. Branches slow walk this past mid-terms and perhaps water it down, probably using recommendations of the Secretary as an excuse, much as Bill used Powell.

Fourth, Obama controls the D of D, including the Secretary.

[Hippo_Tron]

97. The Secretary of Defense serves at the pleasure of the President

When laws are written to assign legal authority to the SecDef (or any other cabinet Secretary for that matter), it is not meant to preclude the President from having that authority but rather to allow that authority to be delegated to lower levels.

[No Elephants]

129. Yep. As does almost everyone in the Exec. Branch. Inconvenient truth for some, apparently. De

Nile ain't just a river in Egypt.

[No Elephants]

133. LOL

[DeSwiss]

54. The judge ruled in favor of the plaintiffs....

...based upon their First Amendment rights being violated by military policies. I think the military has to abide by the ruling because of that. They can appeal it, yes. But they're not so disconnected from civilian law that they can ignore the Bill of Rights. IMHO

[_ed_]

77. Where did you go to law school?

You're completely wrong.

[nyy1998]

56. Got an email from the Washington Post and New York Times about it

:shrug:

To be fair, this news did break fairly late(when people generally stop paying attention to the news), and there was a big football game tonight drawing strong ratings too, which might explain the lower then expected buzz.

[Newsjock]

2. This seems like a big deal

I'm trying to scope out reasons why this isn't a big red BREAKING banner on top of all the cable news websites, especially since it's such a hot-button issue ready-made for their shoutfests.

[Kadie]

3. Breaking news banner just hit yahoo news

http://news.yahoo.com/

[Tx4obama]

5. It just now became a 'just in' story on the HuffPo front page. n/t

[Tx4obama]

6. Rachel Maddow is breaking the news now on MSNBC. n/t

[Tx4obama]

9. From the article link above

Los Angeles Times:

A federal judge in Riverside declared the U.S. military's ban on openly gay service members unconstitutional Thursday, saying the "don't ask, don't tell" policy violates the 1st Amendment rights of lesbians and gay men.

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a "direct and deleterious effect'" on the military.

Phillips issued an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended "don't ask, don't tell" during a two-week trial in Riverside, will have an opportunity to appeal that decision.

[bemildred]

11. Good. About F**king time. nt

[Raster]

12. Hallelujah!

:kick:

[democrank]

13. Maybe, just maybe

something good will come of this.

[NorthCarolina]

14. Will the administration challenge this ruling? eom

[jberryhill]

19. Would you like it to apply generally, or just to this particular case?

[ShadowLiberal]

15. Awesome, 3 back to back victories in federal court for gay rights in the last few months

Awesome, glad to see us keep up the momentum in court, three big victories for gays in the last few months in federal court, and two of them were delivered by republican appointees.

[mitchtv]

23. this suit brought by Log Cabin Repubs

wake up Dems

[krispos42]

16. Excellent news.

This has been a "duh" moment for many years now.

[MikeW]

17. doesn't change anything

and someone needs to tell the Judge that in the military you DONT HAVE the right to free speech.

Unfort. LOTS of people misunderstand what the military is and isn't and often try to compare it to

civilian society. In the military your right to free speech is limited and bound first by

military regulations and the UCMJ ... so sorry the Judge here needs to go back to school.

[iamjoy]

18. I Think It's A Stretch Too

but then, IANAL.

IMHO, the best justification for equal rights is in the 14th amendment.

[FreeState]

20. Hopefully this ruling will get the Senate moving on the repeal

the Judge also answered all of your assertions in here ruling which can be read here: http://www.cacd.uscourts.gov/Cacd/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/4f03e468a737002e8825779a00040406/$FILE/CV04-08425-VAP%28Ex%29-Opinion.pdf

[Tx4obama]

21. The repeal IS in the Defense Appropriations bill, which the Senate will vote on soon. n/t

[FreeState]

25. Got a date on when they are voting on it? The SLDN does not feel so confident

http://www.sldn.org/pages/repeal-on-the-line

A full Senate floor vote is one of the last major legislative hurdles that stands in the way of repeal. Unfortunately, Senator John McCain has been a vocal opponent of repeal from the start. He has indicated that he, along with other repeal foes, will pull out all the stops in coming weeks - from attempting to strike repeal language from the NDAA to offering weakening amendments or threatening to filibuster the entire defense budget.

We cannot let that happen.

If the defense budget bill doesn't move to the Senate floor by the end of this month, DADT repeal may not happen for several more years.

[Tx4obama]

26. I heard September - October. n/t

[No Elephants]

131. Barney Frank said long ago DADT would be handled after mid-terms. Whether this case changes the

original political game plan remains to be seen.

[Bluenorthwest]

30. The first amendment rights being denied are being denied to

civilians, who are not allowed to join the military as honest enlistees, you see. I am a civilian, and I am denied the right to join the military. The rights of those now in the military were denied them while they were civilians, and joined under unconstitutional limits of expression. That'd be my guess. To join, I would have to lie, and that is denial of rights, prior to enlisting.

[mcollins]

103. I don't think you have a 'right' to join the military.

I'm not sure of this but I don't think that saying you have a RIGHT to join is correct. The military doesn't allow people with disabilities to join, a violation of the Americans with Disablities Act for example. Now as I understand it the military doesn't even ask you if you are gay when you enlist. They don't ask you if you are not for that matter.

I personally don't think there is any valid reason for gays not to serve in the military. I am not sure if saying it violates your 1st Amendment rights is the correct way to go.

[jberryhill]

32. It's not that simple

The UCMJ is an act of Congress, just like any other legislation, and it is subject to judicial review.

First Amendment claims are subject to a higher level of scrutiny in military cases, but if you believe it is inapplicable, you simply have no idea what you are talking about, and I can think of a few chaplains that might want to speak to you.

Can you explain why the Supreme Court has disagreed with you for decades?

PARKER V. LEVY, 417 U. S. 733 (1974)

Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of the principles that, while military personnel are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it.

[Bluebear]

34. Gee, thanks for your solidarity.

[Commie Pinko Dirtbag]

44. You can almost hear the angry tone of voice and see the swollen veins in the temple, eh?

[Occulus]

112. All I hear is smug.

And it's a happy smug, if you take my meaning.

[happyslug]

47. The only rights you lose in the Military is the right to a Grand Jury indictment

You even retain the right to a Jury, but it is a Jury of military people superior to you in rank.

Now when you enter Military Service you are given a Status that is different from being a Civilian but you do NOT lose your right of Free Speech or any other right in the Bill of Rights (Except the right to a Grand Jury indictment, read the Bill of Rights).

On the other hand, if you are in the Military you are subject to Military discipline and can be court marital-ed for anything that can hurt military discipline. You have a right to say what you want to say, but anything that attacks the command structure can be forbidden (you can form a group to complain of things going on your unit, but it can NOT be a union or anything that can be used as a "tool" against military discipline i.e. you can form a union, and even call it a union, but it has no right to negotiate with the Command Structure and the Command Structure can order is disbanded if it is disruptive of discipline).

Now the above sounds like I am talking out of both sides of my month, and in many ways I am. In the Military you must obey all LAWFUL orders, but it is unlawful to restrict what you can do on your own time unless it is otherwise illegal if you were a civilian (i.e. even in Civilian Life I can NOT organize a rebellion against the Federal Government). Thus I can form a committee of people who think like I do, I can Petition my Congressman or woman and my Superiors. I can publish a newspaper (at my own expense, with my own equipment in an area I have exclusive control over). Distribution of my newspaper is legal providing I do it in a way NOT to affect discipline (i.e. tell people I have the paper and come to where it is published, put it anywhere other people can put public papers, even hand it out, providing I do NOT affect any group action the Military personal are participating in). At the same time that I am doing the above, I must also obey any lawful orders including one to respect the people put in command over me (Through respect does NOT mean I can NOT call them idiots, incompetence etc, i.e. "With all due respect, Sir, you are an idiot for giving me that Order").

The Military can even order you NOT to have sex. Side note on Sex: During desert Storm I, a Couple both serving in the Army in Saudi Arabia were on Television telling the people that even through they were married they could NOT have sex so as not to offend their Saudi Hosts. On hearing that I turned to my sister, ex-Navy, and another well real read person and we almost DIED, we did not know whether to laugh at the foolishness of the US Army, or died in fright of the foolishness of the US Army. For people NOT familiar with Arab/Islamic Culture it is considered the height of arrogance to deny the right of a husband and wife to be together. It is viewed as an insult against God. Thus for the US Army to say this Husband and Wife could NOT be together was an attack on Islam and Arab Culture of Arabia and to justify it on Television do to Arabia sensibilities was a clear violation of the rules of Guest in Arab and Islamic Cultures. i.e. the fact a Husband and Wife could NOT be together is worse then any sex between non-married people. Some military orders must be obeyed even when there violate the best interest of the United States, as in the case of the above married couple.

As to the Uniform Code of Military Justice, it is a major rewrite and modification of the former "Rules of War" that had been modified over the years since written by Oliver Cromwell in 1649. One major re-write was to make it clear that enlistee personal (but NOT officers) can criticize the President of the United States. This change was do to a 1940s decision by a Federal Court of Appeals that the restriction in the Article of War to respect the Civilian Leadership meant that a person who admire Hitler and hated FDR before he was drafted could be convicting of admiring Hitler and hating FDR after he was drafted and sentence to a time in prison for it. That decision was unpopular and when the Uniform Code of Military Justice was written in 1954 the article used in that case only applied to Officers.

My point is the Bill of Rights apply even to Military Personnel, but with the additional restriction given their military status. If what you do does NOT affect discipline, the Bill of Rights apply completely. If it does affect discipline then it is something decided on a case by case decision.

Please note when I use the Term Discipline I use in NOT only in the sense of being punished for NOT doing what is expected of you, but also understanding your role in the Military and making sure the Military does its job correctly. Thus discipline includes keeping secrets, staying on pose when required, showing up in post when required, following any and all lawful orders etc.

[pasto76]

67. some points

it is in the perception of your commanders, or anyone of higher rank really, as to what "discipline" means.

The abstinence orders are because you are basically property. You have been ordered to serve your duties. A female fully complete her part of the contract if she becomes pregnant. This was a constant headache for us in Iraq. The constant drain on soldier-power/manpower was really quite a large obstacle.

I dont know how you figure soldiers have free speech rights. We clearly do not. Above us in the thread is a citation from a case that expressly says constitutional rights can be ognored in the military.

[happyslug]

95. Yes, Men have complained that Woman Military personnel who get pregnant get out of Iraq

The problem with that claim is that the Percentage of Women who get pregnant in the Military is the same as for women of their own age NOT in the Military. Women in the 20s are of the age when most women want to have a child this is the same age the Military wants them.

Thus the conclusion that women got pregnant to get out Iraq became a hot topic. Some people even claim their knew of a Woman who did that. The problem is, while it is claimed, the vast majority of women was are discharged do to pregnancy are NOT saying that is the reason. One year of misery in Iraq is easier then 18 years of problems raising a child.

As to free speech rights, it does exist in the Military, just as it exists in private businesses. Both places can impose restrictions as part of your contract of employment, but such restrictions do NOT apply to your free time. Even in the Military you have "free time" i.e. when on Pass or on Leave or even sitting in your barracks. Your command can NOT restrict what you do EXCEPT if it has to do with Military operations. Now that is a big exception to Free Speech, but it is similar to the "Right" of a Civilian Employer to impose restrictions on what you do on your free time if what you do harms the employer.

My point is Free Speech has never been absolute even in the Civilian World. Reasonable restrictions are acceptable, but the burden is on the persons imposing the restrictions NOT on the person objecting to those restrictions. Now the Military has a wider range of what is a reasonable restriction then what exists outside the Military but Free Speech still survives within the Military system. One has to be careful how you exercise Free Speech Rights (Just like employees of Civilian Companies have to be careful) but the right survives.

Some web sites that go into details as to the Bill of Rights and the Military:
http://www.nlgmltf.org/leaflets/GI_Rights_free_speech.html
http://writ.news.findlaw.com/commentary/20030619_falvy.html
http://www.newsrealblog.com/2010/04/16/military-personnel-have-free-speech-rights/

Department of Defense Directive as to the Rights under the First Amendment:
http://www.maaf.info/regs/DODD1325-6pv1996.pdf

Political Activities:
http://www.dod.gov/dodgc/defense_ethics/ethics_regulation/1344-10.html

If you want to go into details see the National Lawyer's Guild Military Law task Force web page:
http://nlgmltf.org/

[LiberalFighter]

100. I wonder who dumb idea it was to restrict sex between married couples in the service?

Cheney?

[happyslug]

108. That was under Bush Senior, and Chaney was his Secretary of Defence

Thus that would be my guess, the person who issued that order should have been fired given the nature of Arab/Islamic attitude to marriage. i.e. it is EVERYONE'S duty to make sure a married couple have time to be together.

[TheMadMonk]

72. No, but they do enjoy it right up to the moment they sign on the dotted line.

The military opened itself up to this when they made the distinction between being gay and being openly gay in the armed services.

Clinton's decision to implement DADT made a matter of presidential (CIC) perogative, a matter of law subject to judicial review.

Furthermore, the restriction on free speech really applies only to the same extent as in any employer/employee relationship. You may not behave or speak in any way that can be construed as being on behalf of the organisation of which you are a part, and you may not divulge specifically denoted secret materials. The punishments might be a lot nastier, but the essential nature of the limitations is very little different between the military and civilian spheres.



Other constitutional rights have certainly been found to extend to the military. "Coloured" and white units had to be integrated. Women are moving closer and closer to the flying bullets. Restrictions on relationships within a chain of command are perfectly valid and lawful. Restrictions on relationships based solely on an inherent quality of the people involved are not. Or damned well should not be.

The military long ago lost the right to demand that its officers be either married or outwardly celibate. I doubt that it can find any justification for making an equivalent demand that they be either heterosexual or outwardly neuter.

[LostinVA]

84. Civilian courts most certainly can and do rule on military issues

[dubeskin]

28. Just another "activist judge" trying to overthrow the will of the people

:sarcasm:

You know someone's bound to say it. What a great ruling though! Hope it holds up.

[Recursion]

31. Lawsuit was filed by the Log Cabin Republicans

No, I'm not kidding.

Republicans are suing a Democratic administration to require equal protection under the law for homosexuals.

[Commie Pinko Dirtbag]

43. Well, THAT will surely make them popular with their party's base.

:popcorn:

[No Elephants]

130. In fairness, the LCR sued a Republican administration. Suit filed in 2004.

[Francesca9]

35. 9th Circuit rules limit this to the plantiff

Only the 9th Circuit itself can order relief for anyone but the plaintiff.

This is the next step, the 9th.

[boppers]

110. Plaintiff was a group, suing on behalf of its members...

Do you have to be a LCR to avoid discharge?

[Francesca9]

119. exactly so

[boppers]

121. Craziest Republican Recruitment Scheme ,,

..*ever*.

[Bluebear]

36. I'm sure the DOJ is already preparing their appeal.

[Tx4obama]

37. I doubt it.

The defense didn't even put up a real defense.
They called no witnesses and the only thing they did was submit the history of DADT to the court.
You can find that in the ruling: http://www.politico.com/static/PPM170_100909_logcabin.html

[Bluebear]

38. Well, that's good. Bravo to the Log Cabin Republicans. nt

[boppers]

69. Heck of a read.

The defense was basically "Congress said it was okay, and these historical testimonies said it was okay, too."... Though they did do some weird arguments on standing.

[No Elephants]

126. L.A. Times OP article says D of J defense was vigorous. A deliberately lame defense violates legal

ethics, not to mention wasting tax money.

[McCamy Taylor]

41. If the SCOTUS strikes this down after ruling corps have free speech rights, then

they will confirm their hypocrisy.

On the negative side, watch right wingers mobilize voters on this.

[xchrom]

39. All cracks in this stupid wall are welcome.

In one court -- in one good legal opinion we
Are out in front striking a blow for
Rationality.

Now we build on it from here.

[McCamy Taylor]

40. If Corporations have free speech so should gays and lesbians.

[Bluebear]

42. Yes INDEED. nt

[dpbrown]

45. You can't make someone be openly somber! You just can't.

LOL Can't we think of a different word?

[myrna minx]

46. K&R n/t

:woohoo:

[defendandprotect]

48. Which raises the question of why MIC isn't subject to anti-discrimination laws....????

Is it that "national security" band aid again?

[SoapBox]

49. I've got to say WOW, since at a minimum, it will make several thousand ConservaTurd heads EXPLODE!

...and that...is always wonderful!

We'll see where this goes tomorrow.

[Tx4obama]

52. You probably won't hear anything new tomorrow - see below

Look on the LAST page #85 (lines 17 - 21) here: http://www.politico.com/static/PPM170_100909_logcabin.html
Defendants (DOJ) have a couple of weeks to play with.

[Recursion]

53. It was a lawsuit filed by conservatives

So possibly not

http://en.wikipedia.org/wiki/Log_Cabin_Republicans_v._United_States_of_America

[SharonRB]

57. Federal judge - military's ban on openly gay service members unconstitutional

Source: MSNBC

Just breaking. No story yet.

Read more: http://www.msnbc.msn.com/

[LostinVA]

58. k&r

[lonestarnot]

59. wOOhoo!

Watching.

[democrank]

60. K & R

[katanalori]

61. Here is a link to a bit more info.......

"A federal judge in Southern California has declared the U.S. military's ban on openly gay service members unconstitutional."

Read full story:
http://www.cbsnews.com/stories/2010/09/09/politics/main6851630.shtml?tag=nl.e879

[Tx4obama]

62. SharonRB , your post is a DUPE. It's already at the top of the front page on DU. n/t

[mitchtv]

63. right here in Riverside of all places

a suit by the LCR's. Next move Erik Holder/ Now is Obama's chance to let it die without appeal. Ha

[boppers]

71. No, it needs to be appealed, and defended just as strongly as this was.

:evilgrin:

[xchrom]

64. Oh I am lovin this! Nt

[xocet]

65. k & r n/t

[Thornleylv]

70. About Time

[LawnKorn]

73. K&R

[old mark]

74. I read the NYT article - the phrase "Activist Judge" was one of the first things

uttered by the DADT proponent, Tony Perkins. It is amusing that the right purports to so love the Constitution yet it can't abide when it is enforced.

Remember, Tony, that which is not expressly forbidden is allowed.It's called "Rights", and it applies to everyone, not just psuedo christian white male conservatives.
Welcome to America, Tony!


mark

[Vinca]

75. I was happy to see this decision, but I'm wondering what happens

if DADT goes away with no direction of what is to replace it. Does the military go back to not allowing gays and lesbians to serve period? (A tried and true way to get out of the draft during Vietnam.) Would it mean a second court challenge or would this ruling somehow address it?

[LostinVA]

85. I think an outright ban would be better, personally

That's at least something solid to fight against versus the vapor that is DADT.

[No Elephants]

127. Under this case, a ban would also be baseless discrimination.

[pinto]

76. Kick

:kick:

[NJmaverick]

81. The judicial branch of the government has always been the ones safe guarding our civil rights

which is why it's important that we don't allow another Republican President pack the court with freedom and rights hating judges.

[keepCAblue]

91. Republicans, of late, have a better record than dems of fighting for LGBT rights.

DADT unconstitutional: Lawsuit by the Log Cabin Republicans

Prop 8 unconstitutional: Opinion of Judge Vaughn Walker, a Republican

Prop 8 lawsuit brought about by American Foundation for Equal Rights, one of its two lead attorneys is Ted Olson, Republican.

Notable Republicans on the public record FOR Same-Sex Marriage: Dick Cheney, Laura Bush, Megan McCain, Cindy McCain, Arnold Schwarzenegger, Ken Mehlman (bleh), Bob Barr (who authored DOMA and now opposes it).

And, no, I'm not a troll. I a flaming liberal who generally hates what Repubs have done to our country and to gays like myself. But it seems like the most recent strides toward equality have been greatly assisted by the above notable Republicans, including Dan Woods, the straight Republican attorney who has been handling the federal DADT lawsuit brought be Log Cabin Republicans pro bono since 2004.

It seems Dems could be doing a whole lot more than they are.

[Moonwalk]

99. I don't know about that. So long as Republicans are doing this...

...it makes republican objections look stupid. If Dem's are doing it then every anti-gay soul can dismiss it as a "liberal" cause, all evil and wrong, with the assumption that if they just get in a republican president all this pro-gay stuff will go away. This make sit clear that it may not, not even under a republican. And anything that disheartens the anti-gay forces is good. In some instances, it may even make a few people reconsider their position. If republicans they respect are supporting gay rights maybe it's not so cut-and-dried. Those that won't reconsider no matter what, on the other hand, may be inclined to jump ship and join the teabaggers--thus creating two weak parties rather than one strong party. Which means more democrats voted in.

Sounds like win-win to me.

[happyslug]

98. That is a good one!!!!

The Judicial Branch has had a good reputation at protecting Civil Rights only for the period of the mid 1950s till the 1970s, since that time period it has been all down hill. Furthermore at the height of the Warren Court of the 1950s till 1970s the Court permitted the first even exceptions to the need for probable cause to do a search, when the court in Terry vs Ohio, permitted a police officer to search a suspect for a weapon just in case the suspect had one and could use it on the Officer. Notice no probable cause for the search existed, the police was given the right to search solely on the grounds they needed to make sure someone was NOT armed. To this day police can do that to anyone in violation of the Sprit of the Fourth Amendment, but the Supreme Court has continue to uphold that exception AND even expanded upon it (i.e. in the 1990s saying if the Police did NOT know a search was illegal, the search was constitutional for the police BELEIVED it to be legal).

The number enemy of Labor before the Wagner Act was the Federal Courts, the Federal Courts would either rule that whatever the union was doing was illegal OR rule it was a violation of the Sherman Anti-trust Act (Until the Clayton Act of 1914 made that option illegal) or just entered a court order that no union could obey and remain a union (no protests in front of or near a business the union was on strike against etc). The Courts even upheld the use of Spies on unions AND even permitted such spies to lie on the stand (Read up on the Molly McQuires to see where the Courts permitted the mine owners to stack a jury and convict people associated with the union with a Murder that may or may not be strike related).

As to Minority rights, the Courts of Mississippi during the Floods of the 1920s permitted Whites (including boy Scouts) to stand guard over African Americans who were ordered to build up floodwalls to protect white homes while their own homes were flooded. The Courts refused to reimburse the residents of Louisiana harmed when the City of New Orleans breached a floodwall, flooding rural lower Louisiana to save New Orleans from Flood Damage. I will NOT go into the enforcement of Segregation laws including Plessy vs Ferguson that permitted segregation, even if it meant uneven treatment.

One last Comment of the Earl Warren, the Chief justice of the US Supreme Court in the 1950s and 1960s was also the Governor of California when the Japanese-Americans were rounded up during World War II. He had been governor of California when the Japanese-Americans were locked up by the order of the US Army (J Edgar Hoover REFUSED to permit any FBI agent to be involved with the round up he believed to be unconstitutional). Not only did he co-operate with the Army in that Round up, he pressured FDR for the Army to do it.

As to Civil Rights, the Civil Rights Movement started in the 1950s and the Supreme Court followed it. The key to the Civil Rights Movement was NOT the Court overruling Plessy and saying segregation was unconditional, but CONGRESS'S passing of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Federal Aid to Education of 1974. The First made it illegal to discriminate, the Second prevented most efforts to prevent African Americans from voting, and the third lead to the integration of Southern Schools for it provided Federal Funds to such schools ONLY if the school was Integrated.

Sorry, the courts do NOT have a long history of protecting Civil Rights. People acting as a group (as seen in the Civil Rights Movement), AND Congress and the State Legislatures have been the key. Those bodies have the power to protect Civil Rights more then any Court and once they make a Commitment to Civil Rights then you have protection of Civil Rights.

In the late 1860s Congress passed the Civil Rights Act of 1866, the Anti-KKK Act of 1871 and the Civil Rights Act of 1875 and funded the Freeman Bureaus of that time period. These did more to help African Americans then any Court Decision. The US Army under General later President Grant was the force the tried to enforce these acts. The Courts were hostile to them, as can be seen in the "Civil Rights Cases" of the 1880s where the Courts restricted all three so much that they became useless (i.e. the only rights protected by those acts was the rights in the Constitution itself NOT the Bill of Rights for to extend the Bill of Rights to the states was Unconstitutional even through it was clear that what Congress Intended when Congress passed those Acts AND the Three Post-Civil War Constitutional Amendments).

Even the Warren Court can be viewed as hostile to Civil Rights (as can be seen in the Terry Case). When it expanded the Exclusionary Rule to the States in the late 1950s (It had been federal law since about WWI) and the Miranda in 1969 (Which expanded the right to be told your rights), most states had long adopted similar rules (And Britain adopted it by Stature). Thus it was NOT that much of an expansion. The Country wanted more Civil Rights then the Courts was willing to enforce even at that time period. For example the Court stated that School Lockers were NOT property, even through Property has long been ruled as any grant from the State. This refusal permitted School officials to open lockers and other private areas of students.

Sorry, as more then one Legal Writer has pointed out, the Courts main Job has been to protect property rights, not Civil Rights and then only those property rights of people who can afford to get their case into the Court System.

[pleah]

82. K&R

[fascisthunter]

86. Some Good News

I'm kinda confused by some of the comments up thread about whether this is a good start or not, because I do not know law. I hope this leads to the end of the ban. One of the dumbest things ever.

[Drops_not_Dope]

88. Bill Clinton - President

and Constitutional Lawyer signed this Bill into Law.

I do solemnly swear.....

Every member of Congress, I do solemnly swear.....

what a farce.

[VMI Dem]

89. The President wins again.

Another accomplishment for the list!

[keepCAblue]

93. Yeah, again taking credit for someone else's hard work and commitment. n/t

[elias7]

102. Now be nice. Obama didn't take credit.

I think someone gave him some credit for allowing the political climate to change. We're all in this together, we're all working hard, and no one is discounting anyone else's hard work.

[No Elephants]

125. No, Exec. Branch lost this caset to Log Cabin Republican Republicans won. The D of J may appeal.

"Despite Obama’s criticism of the policy, the Justice Department vigorously defended “don’t ask, don’t tell’’ and even tried to undercut the case with a technical legal challenge over whether the named plaintiffs were dues-paying members of the organization that filed the lawsuit: the Log Cabin Republicans."

[smiley]

90. well duh

it's about time. don't ask - don't tell was just another hypocrisy of the american way of life.

[Solly Mack]

92. k/r

[Ignis]

94. K&R

:kick:

[defendandprotect]

96. Calif judge to stop 'don't ask, don't tell' policy

http://news.yahoo.com/s/ap/20100910/ap_on_re_us/us_gays_in_military

[FourScore]

101. Damn right! n/t

[24601]

114. Timing is everything - after the election would have been less of

a motivation for the RW. Running against judges not on the ballot can be a winning strategy.

So let's say for now that the ruling is upheld on appeal - which I doubt given the Article one mention of Congress regulating the military. So a gay service member could admit they are; however, now that still have to contend with the UCMJ which makes most completely consensual gay sex punishable as sodomy (Article 125) with a possible Dishonorable Discharge, forfeiture of all pay & allowances and 5 years in (military) prison. (And a felony record) So you can be gay, just don't act on your orientation.

[Downwinder]

118. Does that also cover blow jobs in Tijuana and elsewhere? n/t

[24601]

124. It covers BJs, gay or straight - worldwide. But the UCMJ applies

only to members of the US's seven Uniformed Services.

[No Elephants]

134. WTF?

[ProudDad]

117. One more nail in the coffin of yet another form of discrimination...

However, the elephant in the room is that not only gay folks but NO ONE should join a military that's nothing more than a tool for the Corporate States of Amerika -- legions for the Empire.


War is a Racket
Gen. Smedley Butler

WAR is a racket. It always has been.

It is possibly the oldest, easily the most profitable, surely the most vicious. It is the only one international in scope. It is the only one in which the profits are reckoned in dollars and the losses in lives.

A racket is best described, I believe, as something that is not what it seems to the majority of the people. Only a small "inside" group knows what it is about. It is conducted for the benefit of the very few, at the expense of the very many. Out of war a few people make huge fortunes.

http://www.lexrex.com/enlightened/articles/warisaracket.htm

[No Elephants]

128. As Reply 78 said, lot of bad law on this thread. Reading the judge's opinion=better use of time.

http://www.politico.com/static/PPM170_100909_logcabin.html (opinion) Log Cabin Republicans v. U.S. (most may want to skip the discussion of standing, which goes to who has a right to sue ).


Reading the briefs of each side would be great, too but I don't know if they're available online outside of sites that require subscriptions.

Notice the case name. I've been posting that, as Democrats triangulate right, especially on wedge issues, Republicans are going left and those who are not overtly going left are becoming less vocal.