Federal Court finds "Don't Ask, Don't Tell" unconstitutional

I figure around these parts, any debate would be pretty one-sided, so I’ll put this in MPSIMS as a “sharing the good news” item. Article here:

There’s a PDF link at the bottom of the article to the actual decision itself, which I have not yet read.

But for now: Hooray!

I just saw this come across my Facebook feed. Excellent news!

Far too long in coming, though.

Can you explain the implications for a confused foreigner?

Yeah, I remember when Bill Clinton tried to make allowing gays and lesbians to serve in the military one of his first campaign promises to get followed up on. 17 years ago.

So now, the majority of the population favors repeal (by a fairly wide margin). The President favors repeal. The Secretary of Defense favors repeal. The Chairman of the Joint Chiefs of Staff favors repeal. The House favors repeal, and has passed a bill saying so. A majority of the Senate supports repeal. A Federal court has found the current law unconstitutional. Yet, DADT is still law.

A district court within the Ninth Circuit, doesn’t strike me as all that surprising.

Darn that rule of law!

Gays and lesbians will be allowed to serve openly in the military. In theory.

In practice, the decision will likely be stayed pending appeal. In the immediate future, the plaintiffs (the Log Cabin Republicans, who brought the lawsuit) have until next Thursday to submit a proposed judgment, including a permanent injunction against enforcing the ban on gays and lesbians. Then the government has a week to submit their objections to the proposed judgment. Then I think the judge issues a final judgment, and then we move on to stays and appeals. I think the government gets 60 days from final judgment to appeal.

So, this being only a district court ruling, does this mean that Westerners can serve openly, but everyone else still has to keep quiet? And what happens if a gay soldier under this court’s jurisdiction comes out, but the injunction is then overturned by a higher court?

My uncle actually worked on this case (he is a lawyer for the Pentagon, so he was working for the defense). Before you scowl though, his job was simply to argue the merits of the case based on the law as it’s written now. It’s up to the judges to determine whether the law itself is Constitutional or not. I’m not sure whose decision it is on whether DOJ will appeal it up or not, but that’s still a possibility.

I thought I read that there was a possibility that removing DADT would actually make it where you can’t serve openly as Gay. I thought the whole point of DADT was because there was some other law saying you couldn’t be gay and in the military, and DADT was a loophole. Is the other law being overthrown as well?

Ah, yes, the I was just following orders defense.

How’d that work out for the soldiers tried at Nuremberg?

This. So far as I was aware – i.e. going from my memory at the time – DADT was passed to allow gay people to serve in the military. The law essentially forbid the military from inquiring as to your sexual leaning, allowing you to stay in as a soldier regardless of what the answer would be. Of course, this was a compromise, with the downside that if you did tell them your sexual leaning, they could kick you out. But that’s a step forward from having to tell them up front and not getting allowed in at all.

Should DADT be revoked, it seems like it would revert back to what it was before. They ask, you tell, and out of the military you go.

Presumably, when the Log Cabin Republicans file their proposed judgment, it won’t request that the military revert to the status quo ante. And even if it did, it would leave repeal up to the military (ultimately President Obama)'s discretion. Before DADT, there was no congressional statute about homosexuality in the military. Hence, Clinton could have ended discrimination by executive order, just as Truman did with racial discrimination. Then the top brass threw a shit fit, with several (including Colin Powell) threatening to resign, and Congress passed DADT.

It’s not even that… every lawyer is bound by the law. Their job is to interpret the law, not to decide on the merits of it.

Don’t know, but it worked out fine for the lawyers defending the accused at Nuremberg. And they secured the acquittal of Hans Fritzsche and Franz von Papen, among others. In particular von Papen, who had worked against Hitler’s interests, was simply not guilty of anything but political manuevering, and it’s a good thing for the interests of justice that he had someone willing to defend him.

Our system of justice depends on each side in a dispute having a vigorous advocate.

So take your “just following orders” snide comments, and …er… rethink them.

What a bizarre thing to say.

From my understanding it was passed to pretend to let them serve in the military, while in reality increasing the anti-gay persecution. It meant that if you let even the slightest implication that you might conceivably be homosexual slip to anyone, anywhere they’d toss you out. And they’d watch you like a hawk for that slip. It was nothing but an example of writing bigotry into law, about as fair minded and well meaning as segregation was.

Your understanding is flawed. Nothing in this post is actually true. It’s just your imagination reinforcing your prejudices…again.

Well, Der Trihs and hyperbole are not strangers… but the fact is that the military’s claims about inclusion of gays “destroying readiness” and “morale” and harming the warfighter’s mission are all belied by their actual practice:

Any chance it won’t be reversed on appeal?

I think it has an excellent chance of surviving appeal.

Reasons on request.