BREAKING: California District Judge Strikes Down Military Ban on Gays

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[ARCHIVED THREAD] - BREAKING: California District Judge Strikes Down Military Ban on Gays

Posted: 9/9/2010 6:22:43 PM EDT

Judge Strikes Down Military Ban on Gays
By THE ASSOCIATED PRESS
Published: September 9, 2010

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Filed at 9:59 p.m. ET

RIVERSIDE, Calif. (AP) –– A federal judge in Southern California on Thursday declared the U.S. military's ban on openly gay service members unconstitutional because it violates the First Amendment rights of gay and lesbians.

U.S. District Judge Virginia Phillips granted a request for an injunction halting the government's ''don't ask, don't tell'' policy for gays in the military.

Phillips said the policy doesn't help military readiness and instead has a ''direct and deleterious effect'' on the armed services.

The lawsuit was the biggest legal test of the law in recent years and came amid promises by President Barack Obama that he will work to repeal the policy.

Government lawyers argued Phillips lacked the authority to issue a nationwide injunction and the issue should be decided by Congress.

The injunction was sought by the Log Cabin Republicans, a 19,000-member group that includes current and former military members.

Government lawyers argued that Phillips lacked the authority to issue a nationwide injunction and Congress should decide the policy's fate.

The U.S. House voted in May to repeal the policy, and the Senate is expected to address the issue this summer.

''Don't ask, don't tell'' prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base.

Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

Attorney Dan Woods, who represents the group, contended in closing arguments of the nonjury trial that the policy violates gay military members' rights to free speech, due process and open association.

He also argued that the policy damages the military by forcing it to reject talented people as the country struggles to find recruits in the midst of a war.

U.S. Department of Justice attorney Paul G. Freeborne argued that the policy debate is political and the issue should be decided by Congress rather than in court.

Six military officers who were discharged under the policy testified during the trial. A decorated Air Force officer testified that he was let go after his peers snooped through his personal e-mail in Iraq.

Lawyers also submitted remarks by Obama stating ''don't ask, don't tell'' weakens national security.

http://www.nytimes.com/aponline/2010/09/09/us/AP-US-Gays-in-Military.html?_r=1&emc=na

Posted: 9/9/2010 6:26:01 PM EDT

[#1]

How many federal judges do we have?

Can a federal judge from OK make this constitutional?

Posted: 9/9/2010 6:26:40 PM EDT

[#2]

I would not want to be in California now... Earthquakes, fires, riots,

what I am missing? TEOTWAWKI?

Posted: 9/9/2010 6:27:23 PM EDT

[#3]

Al i'm gonna say is "End the Kritarchy"

Posted: 9/9/2010 6:29:34 PM EDT

[#4]

Don't all soldiers have their first amendment rights curtailed regarding political stuff?

Posted: 9/9/2010 6:31:28 PM EDT

[#5]

Quoted:
Don't all soldiers have their first amendment rights curtailed regarding political stuff?

Not the gays...

Posted: 9/9/2010 6:31:49 PM EDT

[#6]

Great, but they need separate showers and barracks. Or we ALL go co-ed.

Posted: 9/9/2010 6:34:04 PM EDT

[#7]

Well, it IS Thursday after all!

Posted: 9/9/2010 7:04:03 PM EDT

[#8]

That's all? I'm suprised

Posted: 9/9/2010 7:09:43 PM EDT

[#9]

Lawyers also submitted remarks by Obama stating ''don't ask, don't tell'' weakens national security.

I'll take his word for it.

Posted: 9/9/2010 7:10:17 PM EDT

[#10]

I'm fine with it, but they shouldn't be quartered with the straight male soldiers. Since they get along with women so well, quarter them together. And of course quarter the lesbians with the regular guys.

What a cluster fuck.

Posted: 9/9/2010 7:10:42 PM EDT

[#11]

Quoted:

Lawyers also submitted remarks by Obama stating ''don't ask, don't tell'' weakens national security.
I'll take his word for it.

No shit, don't argue with the proven expert.

Posted: 9/9/2010 7:11:20 PM EDT

[#12]

Quoted:
Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

Posted: 9/9/2010 7:12:11 PM EDT

[#13]

I don't recall any First Amendment rights when I was in the Marine Corps.

Posted: 9/9/2010 7:12:20 PM EDT

[#14]

Quoted:

Quoted:
Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

is a work of fiction

Posted: 9/9/2010 7:12:27 PM EDT

[#15]

Appointed by Bill Clinton (between blow jobs).

Posted: 9/9/2010 7:12:43 PM EDT

[#16]

And I stand by previous statements to the effect that an openly gay man in the infantry will have a very hard life.

How is being gay freedom of speech, religion, press or petitioning the government for redress of grievances?

Posted: 9/9/2010 7:13:53 PM EDT

[#17]

but yet they still can't read the 2nd right ?

Posted: 9/9/2010 7:15:22 PM EDT

[#18]

Quoted:

Quoted:
Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

is a work of fiction

I want to shower with Dizzy.

Posted: 9/9/2010 7:15:30 PM EDT

[#19]

In.

Posted: 9/9/2010 7:16:03 PM EDT

[#20]

Quoted:

Quoted:
Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

is a work of fiction

you lie!

Posted: 9/9/2010 7:16:33 PM EDT

[#21]

Quoted:

Quoted:
Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

is a work of fiction

I want to shower with Dizzy.

mmm...

Posted: 9/9/2010 7:20:06 PM EDT

[#22]

How does she even think she has jurisdiction over federal troops?

Posted: 9/9/2010 7:59:31 PM EDT

[#23]

Quoted:
How does she even think she has jurisdiction over federal troops?

I was about to ask where exactly her authority or jurisdiction over people covered by the UCMJ comes from. Fuck that bitch.

Posted: 9/9/2010 8:05:16 PM EDT

[#24]

Quoted:
How does she even think she has jurisdiction over federal troops?

My thoughts exactly.

Guess all gay military members will just get stationed in California

Posted: 9/10/2010 1:30:39 AM EDT

[#25]

OK, I have a question.

If "don't ask, don't tell" is ruled unconstitutional, wouldn't it revert back to the way it was before the law was passed (no gays in the military at all)?

Posted: 9/10/2010 1:35:35 AM EDT

[#26]

Quoted:
OK, I have a question.

If "don't ask, don't tell" is ruled unconstitutional, wouldn't it revert back to the way it was before the law was passed (no gays in the military at all)?

Interesting question. A straight repeal would also garner such a result I would imagine. Essentially, "We can ask and you have to tell."

Posted: 9/10/2010 1:51:10 AM EDT

[#27]

Let the meat gazing commence.

Posted: 9/10/2010 1:54:24 AM EDT

[#28]

Circling the toilet...

Posted: 9/10/2010 1:56:47 AM EDT

[#29]

I didn't realize that CA had a say in the UCMJ. Or anything .mil, for that matter. Its simple: You want the job? Follow the rules of the workplace.

Posted: 9/10/2010 7:29:29 AM EDT

[#30]

this judge is one more reason why california needs to break of and sink into the Pacific

Posted: 9/10/2010 7:32:34 AM EDT

[#31]

If the military goes all co-ed, it will be much more difficult to tell who the gay one is in the shower.

Posted: 9/10/2010 7:34:11 AM EDT

[#32]

Oh imagine that from the 9th circuit court.

Posted: 9/10/2010 7:35:54 AM EDT

[#33]

Quoted:

Quoted:

Great, but they need separate showers and barracks. Or we ALL go co-ed.

Starship Troopers

is a work of fiction

I want to shower with Dizzy.

Posted: 9/10/2010 7:39:06 AM EDT

[#34]

Virginia Phillips is a FEDERAL judge. She was nominated by Clinton. Am I the only one that sees the irony?

Quoted:

this judge is one more reason why california needs to break of and sink into the Pacific

Posted: 9/10/2010 7:42:06 AM EDT

[#35]

Quoted:

Quoted:
Don't all soldiers have their first amendment rights curtailed regarding political stuff?

Not the gays...

I'm gonna join up. I will be demanding my Goatee and little Pony tail be worn during boot camp. Its my "Right"...

Posted: 9/10/2010 7:45:23 AM EDT

[#36]

Quoted:

Quoted:

OK, I have a question.

If "don't ask, don't tell" is ruled unconstitutional, wouldn't it revert back to the way it was before the law was passed (no gays in the military at all)?

Interesting question. A straight repeal would also garner such a result I would imagine. Essentially, "We can ask and you have to tell."

Yup...very interesting.

Posted: 9/10/2010 7:52:30 AM EDT

[#37]

Hey, you know how a female soldier can ruin your career by complaining that you faced her direction with your eyes open if you have no witnesses to back you up? Yeah, sexual harassment. It can be played by men now.

Posted: 9/10/2010 8:34:20 AM EDT

[#38]

Are any of these cases held in a place besides California?

Posted: 9/10/2010 8:37:40 AM EDT

[#39]

Too many things to worry about.
Now soldiers have to be concerned with getting blown in a foxhole and being blown out of a foxhole.

Posted: 9/10/2010 8:42:36 AM EDT

[#40]

Surprisingly, the Obama DOJ barely lifted a finger to protect DADT:

Yesterday’s Anti-DADT Ruling

September 10, 2010 11:22 A.M.

Ed Whelan

Yesterday a federal district judge in California opined (in Log Cabin Republicans v. United States) that the federal law governing homosexuals in the military—popularly known as "Don’t Ask, Don’t Tell”—violates substantive due process and First Amendment speech rights. Judge Virginia A. Phillips ruled that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

Some initial observations:

1. The court’s ruling is the latest step in the Obama administration’s sabotage of the Don’t Ask, Don’t Tell law. (See, relatedly, the Obama administration’s ongoing sabotage of the Defense of Marriage Act.) As I’ve discussed in detail, then-Solicitor General Elena Kagan, in violation of her commitment to vigorously defend Don’t Ask, Don’t Tell, declined to seek Supreme Court review of the rogue Ninth Circuit ruling in Witt v. Department of Air Force that applied a higher level of scrutiny to Don’t Ask, Don’t Tell than Kagan herself had acknowledged was required under prevailing Supreme Court precedent.

Because of Kagan’s dereliction of duty, Judge Phillips proceeded to trial on DADT and applied the heightened scrutiny that Witt wrongly required. (See slip op. at 48.)

Further, the Obama DOJ failed to offer a serious defense of Don’t Ask, Don’t Tell at trial. As Judge Phillips states several times in her opinion (in slightly different formulations), DOJ "called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” (Slip op. at 84.)

Why did DOJ not call as witnesses those military leaders who support Don’t Ask, Don’t Tell? The obvious explanation is that the Obama administration, which seeks repeal of Don’t Ask, Don’t Tell, doesn’t want to credit its political opponents on this issue. In other words, DOJ evidently let the Obama administration’s political agenda trump its duty to defend a federal law.

And, of course, the Obama administration has ample reason to believe that a sympathetic or gullible media will cover up its sabotage. (Indeed, the Los Angeles Times, in reporting yesterday’s ruling, asserts that DOJ "vigorously defended” the law.)

2. Judge Phillips’s ruling in favor of plaintiff’s facial challenge misstates and misapplies the relevant standard. Judge Phillips seems to contend that the Court’s opinion in Washington State Grange v. Washington State Republican Party walks away from the Salerno standard for facial challenges—under which a plaintiff can succeed in a facial challenge only by establishing that a law is unconstitutional in all of its applications. But all that Justice Thomas’s majority opinion in Washington State Grange says is that the facial challenge in that case failed both under Salerno and under the lower standard that "some Members of the Court” have proposed. There’s no basis for reading it as abandoning Salerno. And the facial challenge clearly fails under Salerno.

Moreover, Judge Phillips seems to misapply even this alternative lower standard, under which a facial challenge must fail if a statute has a "plainly legitimate sweep.” She seems to think its dispositive that the Don’t Ask, Don’t Tell law (in her judgment) "captures within its overreaching grasp” certain activities that aren’t within a "legitimate sweep.” (See slip op. at 14-15.) But the relevant question under this alternative standard would seem to be whether there are sufficient activities that properly fall within the "sweep” of the law, not whether there are some or many activities that fall outside it.

3. Some of the early reporting on the case suggests, as this Washington Post article puts it, that the ruling "is likely to put more pressure on Congress to act on pending legislation that would repeal” Don’t Ask, Don’t Tell. I don’t see why that would be, especially when one understands that the Ninth Circuit’s rogue ruling in Witt and the Obama administration’s sabotage are largely responsible for the ruling. Indeed, I think that the effect may be to delay any repeal effort, until Congress can be certain of the legal landscape in which it would be legislating.

I’ll add, for what it’s worth, that I do not have a firmly held position on what laws and policies ought to govern the matter of homosexuals in the military. I’d be inclined to defer heavily to expert military advice that is untainted by political considerations (though I recognize that there may well be fair debate over what counts as such).

Posted: 9/10/2010 8:43:21 AM EDT

[#41]

...........Does not want.

Posted: 9/10/2010 11:03:35 AM EDT

[#42]

How does a civilian court over rule military policy? Am I missing something? Wouldn't this suit have to have been filed under UCMJ?

Color me confused.

Which is easily done........

Posted: 9/10/2010 11:06:10 AM EDT

[#43]

Bad subject line. Judge is FEDERAL, and has nothing to do with the judiciary of Occupied Californistan.

Posted: 9/10/2010 11:07:52 AM EDT

[#44]

Quoted:

I don't recall any First Amendment rights when I was in the Marine Corps.

Me either.

Posted: 9/10/2010 11:08:22 AM EDT

[#45]

Quoted:

How does a civilian court over rule military policy? Am I missing something? Wouldn't this suit have to have been filed under UCMJ?

Color me confused.

Which is easily done........

Meh. The Constitution specifically states that the military is regulated by Congress. Only they can change DADT.