U.S. District Judge Virginia A. Phillips in California has found the military’s “don’t ask, don’t tell” policy to be unconstitutional under the 1st Amendment and due process clause. She has informed the Obama Administration, which is defending the policy, that she intends to issue an injunction.
While President Obama said on the campaign trail that he would get rid of DADT, he has yet to actually do it despite recent assurances. In the meantime, the Justice Department has been quietly fighting to preserve the policy in court.
The Obama Administration argued that the inclusion of gays and lesbians in the military has a “direct and deleterious effect” on the armed services.
Phillips issued an 85-page ruling that shredded such arguments — noting that the military has allowed felons to serve but not gay citizens. She refused (as is often the case with federal judges) to simply defer to the military’s conclusory statements on the impact on military readiness and morale.
The Obama Administration appeared almost comically conflicted in court as it fought to keep gays out of the military despite the President’s statements to the contrary to the public. The court cited this particular gem of a quote:
President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009:
“Don’t Ask, Don’t Tell” doesn’t contribute to our national security . . . preventing patriotic Americans from serving their country weakens our national security . . . . [R]eversing this policy [is] the right thing to do [and] is essential for our national security.
The Justice Department notably did not put on an affirmative defense in the case while arguing that DADT should be upheld. While the Justice Department opted to largely rely on the law and its findings, it still appeared in defense of the law. The result was arguing for a law on national security grounds while the President was saying it was not needed for national security.
The Court held on due process the following:
Thus, the evidence at trial demonstrated that the Act does not further significantly the Government’s important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants’ discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline — 50% from 2001 to 2002 and steadily thereafter — in Defendants’ enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants’ practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government’s interest in military readiness.
In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don’t Ask, Don’t Tell Policy “significantly furthers” the Government’s interests nor that it is “necessary” in order to achieve those goals.
On the first amendment, the Court found the DADT to be a content-based law infringing on free speech, noting an array of restrictions:
In other words, all of these examples demonstrate that the Act’s restrictions on speech not only are broader than reasonably necessary to protect the Government’s substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.
Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. Joseph Rocha, eighteen years old and stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14, July 15, 2010.) In fact, his fear was so great that he initially refused to answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15, July 15, 2010.) John Nicholson and Anthony Loverde also testified about a similar chilling effect on their speech when [*118] overhearing or being subjected to homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).)
The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified during trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doc Decl.] PP 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16, 2010.)
Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.
The speech holding is probably more vulnerable than the due process holding since courts have routinely allowed restrictions on speech rights in the military. However, the decision will put the Administration in a more difficult position if it decides to appeal. The Justice Department seemed to struggle at trial to defend the law but not be seen as fighting too hard. It did not present an affirmative defense but still argued that military readiness demanded that DADT be upheld. Now it would have to take the matter on appeal — a move that would further anger gays and lesbians over the failure of Obama to make good on his promise. The Administration is likely to want to wait on the appeal but it will have to be filed as a notice relatively soon. With the November election approaching and polls falling, the Administration may not want to make DADT a prominent issue in addition to same-sex marriage, illegal immigration etc.
Source: LA Times
Tootie: From my ancient memories of Sunday School I recall that God created Man(and Woman) in his own image. Many of these likenesses of God are gay, lesbian, and bisexual. Many other likenesses of God have skins in colors other than white. It seems strange to me that so many Christians of the Republican persuasion have such a problem with these people created by God in his own image. It seems sacrilegious to me, and an offense against God. There is also that troublesome thing about “Love thy neighbor….”
James M.
Thank you … bookmarked for later study
James M. I’ll check out your link. There was an author on one of the late evening TV shows recently discussing his book on the history of marriage and legal monogamy which,he demonstrates, seems to be contrary to human nature. He chalks monogamy up to the holding of ‘things’. Once society became settled enough for the acquisition of things of value there had to be an orderly method of assigning the disposition of these things. If I could remember the name of the book I’d probably read it because it sounded interesting.
I was very happy to see this in the decision (and have the Professor reprint it)
“If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline — 50% from 2001 to 2002 and steadily thereafter — in Defendants’ enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants’ practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government’s interest in military readiness.”
Our government has misused minorities for its own purposes since at least WWII. Both African American and female pilots would fly our newly built bombers to points overseas before there were African American of female pilots in the Air Force. I recall reading that many of the women pilots were civilian. They almost universally carried bombs ‘unofficially’ and unloaded them on targets of opportunity on their routes (or close to their official designated route) because they flew over enemy territory. Many in this shadow air force died when their planes were brought down by enemy fire. I don’t have any cites but I have read this many times over the years. These people weren’t recognized for their duty or sacrifice though their heroism is undoubtable.
No doubt, in the recognized armed services gays were simultaneously serving in heroic but anonymous ways. As the judges decision reveals DADT is a prejudice of convenience and it’s long overdue for the trash heap of history.
Culheath asked (rhetorically) above why the Justice department has to do anything to oppose the ruling in this matter and it’s a good question. On the Rachel Maddow show Dan Choi, recently fired from the Army for being gay, made the same point in a more pointed fashion. I can’t find the segment to link to it unfortunately if it even exists in cyberspace, but his contention was that he and other gay activists keep being told that the Administration has so much on its plate that it just can’t devote the resources necessary to address DADT so KEEP IT UP, just let it alone, don’t spend the time and effort to argue against the judges ruling, just keep on doing what you have been doing.
LOL, I’ll second that!
Tootie actually got me interested in the history of polygamy. This is a great article on Roman and Greek formal monogamy and institutionalized genetic polygyny: http://www.princeton.edu/~pswpc/pdfs/scheidel/010903.pdf
Daniel,
I like the ‘Newsy’ site and your videos load quickly on my satellite Internet service. I get all my news from the web since I do not have a TV and my bandwidth limits are such that I am never able to fully access all the video news I prefer. The Newsy site will help and I do not have to wait for all of that buffering time lag.
lottakatz,
lol, sorry.
DNFTT.
Tootie,
Your whole argument is based on a premise for which you provide no support. As such, I will not bother to respond until you provide at least 3 historical examples of societies in which allowing polygamy signaled the decline of their civilization.
Tootie,
As I said before, your views are welcome. I will pass on commenting but I read others’ comments whilst they shread your gawd-offal beliefs.
Civilizations collapse because of the immorality of the people in them and their inability to distinguish between right and wrong. If everyone decides that wrong is right: gooses are cooked (especially for the upcoming generations).
And that is largely what this issue is about.
The next stop of the liberal train wreck on the sexual line is polygamy (the first stops were easy-divorce avenue, “free love” boulevard, and abortion central–all heterosexual errors).
Because of the above changing attitudes, and now the acceptance of homosexuality by the powers that be, the attitudes and mores about polygamy will HAVE to change specifically and precisely because of the laws and court decisions addressing homosexuality. Polygamy will have to be allowed just as these others were and the justification used to push the corruption of heterosexuality and homosexuality will be the same for polygamy: the supposed right of consenting adults to do that which supposedly does no harm other (but was not approved of in the past).
But polygamy is a cultural disaster warning-sign flashing that the tracks ahead are out. This should prove to those with common sense that everything the conservatives have said about heterosexual sexual error is correct and that acceptance of homosexuality will be, to mix metaphors, only the last straw to break the camels back. I don’t think enough people have enough of this common sense to see it. Our sexual “values” have been thoroughly corrupt now for over a half century. The newest generations have accepted corruption as normalcy.
Polygamy appears only in the worst civilizations–ones that are especially brutal to women. If the liberals (progressives, Democrats) really believed in science they would take this evidence to heart.
Cultural revolutions like ours which change and indeed flip good customs, traditions, and morals on their heads will have the same effect such revolutions have ALWAYS had on civilizations: decline and, or, fall ending in a primitive (even barbaric), backwards, weak, and corrupt nation unable to distinguish between right and wrong. Such civilizations have little political, scientific, artistic, and moral advancements. Women and children pay the biggest price.
If you don’t see that the outworking of liberal sexual beliefs by Americans runs parallel to our inability to function as a civilization, then you are not paying attention. Even the flaming liberal/progressive Ariana Huffington is now pushing a a new book about America becoming a third world nation. She doesn’t know the reasons why this is happening (she just thinks it is because the rich are corrupt), but the fact that it is becoming apparent to everyone that we are collapsing is now clearly discernible to the observant among us. History proves that this collapse is because of moral corruption, not only of justice but of sexual conduct. IT IS ALWAYS THE CASE.
Cause and effect are not anything less a scientific fact in the moral realm than they are in the physical realm of the material universe. If you have bad morals you end up with a bad life. If everyone has bad morals you end up with a bad civilization.
Deciding on what bad morals is, of course, the trick.
Since polygamy is always associated with decline and is the next stop for us, they we have to look at how we got to this point. It is clear that the intervening steps to this point are heterosexual promiscuity, abortion, easy divorce, and acceptance of homosexuality. They are just sign posts along the way. It is one thing to violate these cultural customs receive disapproval, and bear ones shame; and another thing altogether to promote the violation of these customs by ours laws. That is the stage we are in right now.
Our customs regarding sexuality served us well indeed and only an unwise people wish to play with this.
My comments are based on all of secular human history thus far and the polygamous civilizations we see in modern times (Islam among them).
In addition, God is not mocked.
Sow, reap.
It continues to amaze me the number of people who have not even read the articles and post. It should be a requirement that people should at least be able to read beyond the Third Grade Level before allowed on a site such as this. If people read, then it would slow down the posting possibilities. Why read when you can have an opinion on something you know nothing about? I bet they are they know everything in the Bible.
You… didn’t read the ruling, did you, Daniel.
Excluding gays from the service is dumb. Israel lets them in the IDF; are we seriously going to say that the IDF’s readiness or morale has suffered from that? As I recall, Defense Secretary Gates himself said that DADT was unnecessary.
The question of whether gays SHOULD serve, though, is different from whether they have a constitutional RIGHT to serve. In what sense does it deny due process when the government discharges a G.I. for failing to hide his homosexuality? A man can be discharged just for wearing headgear that his religion requires; how is the one any worse than the other? Just because the government’s policy is stupid and unjust doesn’t prove that it’s unconstitutional.
The U.S. Army *told* me that my secondary MOS would be as a medic and because of my biological/scientific background I was assigned the class tutor duties and I became the honor graduate of that class. There was no doubt in my mind that several of those medics-in-training were homosexuals and we straight guys occasionally talked about it because ‘those boys’ had their own ‘click’. That did not bother me and we all slept in the same old-style 2-story double bunk bed barracks from WWII in San Antonio TX (Ft. Sam Houston) and we all showered together like a bunch of cattle in a large, although cramped, loading chute.
Some of the medics I tutored went into combat in Viet Nam. I simply could not imagine any injured soldier on any battlefield who would complain about any gay medic who tried his utmost to save any soldier’s life.
I want to second what culheath said above. He got it exactly right. If President Obama wants to avoid looking like a complete fool, he needs to go on television and explain Judge Phillips’ decision, say he agrees that DADT is unconstitutional, and announce that he has ordered the Attorney General NOT to appeal Judge Phillips’ ruling. Anything else puts him in an untenable position that he can’t defend. The Republicans will have a field day with him if his administration is on both sides of this issue. This time, Mr. President, do the right thing.
On a more serious note, I wonder how many of our combat troops were killed or wounded because of intelligence information not received due to the firing of gay linguists and intelligence analysts. Or died because the gay medic had been sent home. Or died because the gay Combat Infantryman who might have been the first to see and shoot the sniper wasn’t there any more. Or…..
Homo Thespians says:
WE DON’T WANT ANYONE THAT DOES NOT WANT US. WE HAVE SERVED IN THE MILITARY FOR MANY YEARS UNDERCOVER AND IN THE CLOSET. IT DOES NOT BOTHER ME I AM NOW A VETERAN OF THE STATE OF ARIZONA HIGHWAY PATROL. I AM SOON TO RETIRE AND AM NOT SURE IF I WILL COME OUT OF THE CLOSET THEN OR NOT. I AM MARRIED AND HAVE FOUR (4) CHILDREN. THE WIFE KNOWS THAT I AM A HOMOSEXUAL MALE AND ACCEPTS MY DECISION. THE CHILDREN DO NOT KNOW THAT I AM GAY BUT KNOW THAT I HAVE A BEST FRIEND WHO IS MALE. I COULD BE ANYONE THAT YOU MEET. I APPEAR NORMAL IN EVERY ASPECT OF MY LIFE. IT IS SAD THAT I HAVE TO LIVE LIFE IN A LIE. IF THIS OFFENDS ANYONE, I AM SORRY. HOWEVER, WE ARE EVERYWHERE AND I WAS A DISTINGUISHED VETERAN FROM THE FIRST GULF WAR.
Yeah Henman,
All we would have to tell them non-infidel muzlums through flowerly leaflets a’dropped from the sky is that our pink wearin’ soldiers is whut them 71 virgins in their paradice really looked like and wore…
Ms. EM,
Yes Ma’am, I was ‘in heat’—extremely so; sadly, it was only the second best kind in the form of solar insolation and unfortunately not that #1, bestest, other kind of heat…
That is, not the following kind of fever/heat stroke (because of the title of this DADT thread, I wanted to ensure that I was *not* misunderstood—whatsoever—therefore, I posted Elvis the Pelvis’ version of Fever with lyrics from a ‘red-blooded’ male’s perspective, although I prefer Ms. Lee’s sultry rendition: