# Federal Court finds "Don't Ask, Don't Tell" unconstitutional **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [September 10, 2010, 2:34am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259 "2010-09-10T02:34:46Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [September 10, 2010, 11:56pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/21 "2010-09-10T23:56:08Z")
I’m curious about your reasoning. My own feeling is that it’s practically a slam dunk at the 9th Circuit, but I’m less certain about the Supreme Court. The paragraph you quoted is pretty powerful evidence, though. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [September 11, 2010, 12:11am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/22 "2010-09-11T00:11:44Z")
When Truman integrated the Armed Forces (by executive order, I might add, which meant he didn’t have to fight _anyone_ to do the right thing), he made it an actual offense to use racist remarks and it _still_ took quite a while to bring the military up to modern standards. I wonder how long it will take, and how many careers will go down the drain, to remove homophobia in the ranks. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 11, 2010, 12:24am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/23 "2010-09-11T00:24:06Z")
> [@Chessic\_Sense](#): > > > [@Der\_Trihs](#): > > > > 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, the part about “increasing the anti-gay persecution” is certainly true. Assuming that he was referring to the number of servicemembers thrown out for being gay – that number has certainly increased since DADT was passed. It’s averaged about 2-1/3 people per day over the last 15 years. One every 10 hours. The amount of tax money wasted on training servicemembers who were then thrown out is huge. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [September 11, 2010, 1:28am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/24 "2010-09-11T01:28:34Z")
> [@t-bonham@scc.net](#): > > Well, the part about “increasing the anti-gay persecution” is certainly true. Assuming that he was referring to the number of servicemembers thrown out for being gay – that number has certainly increased since DADT was passed. Yes, I was referring to that. ---
**Author:** ![Gukumatz](https://avatars.discourse-cdn.com/v4/letter/g/74df32/32.png) [@Gukumatz](https://boards.straightdope.com/u/Gukumatz)\ **Post date:** [September 12, 2010, 1:37am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/25 "2010-09-12T01:37:53Z")
> [@t-bonham@scc.net](#): > > > [@Chessic\_Sense](#): > > > > Your understanding is flawed. Nothing in this post is actually true. It’s just your imagination reinforcing your prejudices…again. > > Well, the part about “increasing the anti-gay persecution” is certainly true. Assuming that he was referring to the number of servicemembers thrown out for being gay – that number has certainly increased since DADT was passed. It’s averaged about 2-1/3 people per day over the last 15 years. One every 10 hours. The amount of tax money wasted on training servicemembers who were then thrown out is huge. That’s interesting. Can you provide a cite for those numbers? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 12, 2010, 2:24am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/26 "2010-09-12T02:24:03Z")
> [@Gukumatz](#): > > > [@t-bonham@scc.net](#): > > > > Well, the part about “increasing the anti-gay persecution” is certainly true. Assuming that he was referring to the number of servicemembers thrown out for being gay – that number has certainly increased since DADT was passed. It’s averaged about 2-1/3 people per day over the last 15 years. One every 10 hours. The amount of tax money wasted on training servicemembers who were then thrown out is huge. > > That’s interesting. Can you provide a cite for those numbers? [Wikipedia: 13,389 discharged since 1994.](http://en.wikipedia.org/wiki/Don%27t_ask,_don%27t_tell#Statistics) [Center for American Progress: 13,975 since 1994.](http://www.americanprogressaction.org/issues/2010/02/dadt_numbers.html) [Servicemembers Legal Defense Network: 11,715 discharged 1994-2006.](http://www.sldn.org/page/-/Website/Fact%20Sheets/DADT%20Fact%20Sheets/Fact%20Sheet%20-%20Discharges%201994-1996.pdf) [Govt. Accounting Office Report: 9,488 discharged 1994-2003; cost of recruiting & training replacements = $189 million.](http://sldn.3cdn.net/b3c0ef932a530a58f4_ncm6br5ng.pdf) ---
**Author:** ![Gukumatz](https://avatars.discourse-cdn.com/v4/letter/g/74df32/32.png) [@Gukumatz](https://boards.straightdope.com/u/Gukumatz)\ **Post date:** [September 12, 2010, 3:15am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/27 "2010-09-12T03:15:24Z")
> [@t-bonham@scc.net](#): > > > [@Chessic\_Sense](#): > > > > Your understanding is flawed. Nothing in this post is actually true. It’s just your imagination reinforcing your prejudices…again. > > Well, the part about “increasing the anti-gay persecution” is certainly true. Assuming that he was referring to the number of servicemembers thrown out for being gay – that number has certainly increased since DADT was passed. It’s averaged about 2-1/3 people per day over the last 15 years. One every 10 hours. The amount of tax money wasted on training servicemembers who were then thrown out is huge. > [@t-bonham@scc.net](#): > > > [@Gukumatz](#): > > > > That’s interesting. Can you provide a cite for those numbers? > > [Wikipedia: 13,389 discharged since 1994.](http://en.wikipedia.org/wiki/Don%27t_ask,_don%27t_tell#Statistics) > [Center for American Progress: 13,975 since 1994.](http://www.americanprogressaction.org/issues/2010/02/dadt_numbers.html) > [Servicemembers Legal Defense Network: 11,715 discharged 1994-2006.](http://www.sldn.org/page/-/Website/Fact%20Sheets/DADT%20Fact%20Sheets/Fact%20Sheet%20-%20Discharges%201994-1996.pdf) > [Govt. Accounting Office Report: 9,488 discharged 1994-2003; cost of recruiting & training replacements = $189 million.](http://sldn.3cdn.net/b3c0ef932a530a58f4_ncm6br5ng.pdf) Thanks! That’s way higher than I’d have expected. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [September 12, 2010, 4:24am UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/28 "2010-09-12T04:24:51Z")
The opinion itself had numbers for each year: 1994 616 1995 757 1996 858 1997 997 1998 1,145 1999 1,043 2000 1,213 2001 1,227 \<–war begins–\> 2002 885 2003 770 2004 653 2005 726 2006 612 2007 627 2008 619 2009 275 The abrupt decline as soon as the Armed Forces needed more soldiers was one of the items the court found to undercut the idea that DADT was necessary. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [September 12, 2010, 1:24pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/29 "2010-09-12T13:24:48Z")
> [@Bricker](#): > > > [@Chessic\_Sense](#): > > > > 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: > > > [@Log Cabin Republicans v. Gates](#): > > > > LCR also produced evidence demonstrating that Defendants routinely delayed the discharge of servicemembers suspected of violating the Act’s provisions until after they had completed their overseas deployments. In other words, if Defendants began an investigation of a servicemember suspected of violating the Act, the investigation would be suspended if the subject received deployment orders; not until he or she returned from combat – assuming this occurred, of course – would the investigation be completed and the servicemember discharged if found to have violated the Act. Thus, Defendants deployed servicemembers under investigation for violating the Act to combat missions or, if they were already so deployed, delayed the completion of the investigation until the end of the deployment. It is a strong arugment , but unfortunately all this shows is that for the military, a full strength unit + gays is better than a unit at partial strength. It doesn’t show that they believe a full strength unit without gays is equal to a full strength unit with gays. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 12, 2010, 2:00pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/30 "2010-09-12T14:00:03Z")
> [@treis](#): > > It is a strong arugment , but unfortunately all this shows is that for the military, a full strength unit + gays is better than a unit at partial strength. It doesn’t show that they believe a full strength unit without gays is equal to a full strength unit with gays. No, but it does show that they think a gay person in the ranks doesn’t endanger the unit. If they did, they’d want to yank him. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [September 12, 2010, 3:04pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/31 "2010-09-12T15:04:31Z")
> [@Sage\_Rat](#): > > > [@treis](#): > > > > It is a strong arugment , but unfortunately all this shows is that for the military, a full strength unit + gays is better than a unit at partial strength. It doesn’t show that they believe a full strength unit without gays is equal to a full strength unit with gays. > > No, but it does show that they think a gay person in the ranks doesn’t endanger the unit. If they did, they’d want to yank him. Right, but they’ve never claimed that gay people puts a unit in danger. They claim that it reduces unit moral and, therefore, combat effectiveness. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 12, 2010, 3:19pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/32 "2010-09-12T15:19:47Z")
> [@treis](#): > > Right, but they’ve never claimed that gay people puts a unit in danger. They claim that it reduces unit moral and, therefore, combat effectiveness. Unless you have a group of clones, **someone** in the unit is making the unit less effective than the optimal. Someone’s going to be shorter, stupider, noisier, tire more easily, or a worse aim. The only measure of effectiveness is whether the unit can perform the tasks assigned to it. If it can’t do that, you’re just wasting manpower and money by sending them into the field. You’ll get perfectly good soldiers killed. As the commander, you would be aware of that and act to prevent losing your soldiers who _would be_ effective by taking whatever measures necessary to get those men able to be effective – for instance, by tossing the gay soldier out. If you aren’t doing that, you’re saying that your unit is an effective force as is and you don’t expect it to fail or endanger itself in any way. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [September 12, 2010, 4:09pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/33 "2010-09-12T16:09:03Z")
> [@Sage\_Rat](#): > > > [@treis](#): > > > > Right, but they’ve never claimed that gay people puts a unit in danger. They claim that it reduces unit moral and, therefore, combat effectiveness. > > Unless you have a group of clones, **someone** in the unit is making the unit less effective than the optimal. Someone’s going to be shorter, stupider, noisier, tire more easily, or a worse aim. Ok… I don’t really see the point of this. The military is free to boot out, or not recruit, the short, stupid, noisy, unfit, and poor shots. > [@Sage\_Rat](#): > > The only measure of effectiveness is whether the unit can perform the tasks assigned to it. If it can’t do that, you’re just wasting manpower and money by sending them into the field. You’ll get perfectly good soldiers killed. As the commander, you would be aware of that and act to prevent losing your soldiers who _would be_ effective by taking whatever measures necessary to get those men able to be effective – for instance, by tossing the gay soldier out. If you aren’t doing that, you’re saying that your unit is an effective force as is and you don’t expect it to fail or endanger itself in any way. Saying that a force is effective does not mean you are saying that it can not be improved. Which is essentially my point. Commanders are faced with two choices: (1) A full strength unit with a gay person or (2) A undermanned unit with no gays. The fact that they choose (1) doesn’t mean they wouldn’t prefer (3) A full strength unit with no gays. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 12, 2010, 4:15pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/34 "2010-09-12T16:15:43Z")
Since Obama doesn’t like the policy, does the DOJ really have to appeal? I know that it is their duty to argue on behalf of the laws of the United States, but would it really go against their legal ethics if they said, “We read the judge’s opinion. It seems to be legally valid, therefore we will not appeal?” ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 12, 2010, 4:18pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/35 "2010-09-12T16:18:10Z")
> [@Sage\_Rat](#): > > > [@BigT](#): > > > > 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? > > 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. If I understand correctly, the court doesn’t have to strike down the whole law. It could just invalidate the part about booting out gay people when they are found out. In other words, they could hold that the “Don’t ask” portion of the law is great, but the “don’t tell” part is unconstitutional. ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [September 12, 2010, 4:51pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/36 "2010-09-12T16:51:08Z")
As I’m not really familiar with who all the players are in this matter, let me ask this for myself and anyone else in my position. If the defendants in the suit are the armed forces, and President Obama is the Commander in Chief of the armed forces, can’t he just order them not to appeal? Or would it be a more politically savvy move to let it go to the supreme court and get the weight of a SCOTUS ruling behind it? ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 12, 2010, 8:12pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/37 "2010-09-12T20:12:24Z")
> [@jtgain](#): > > Since Obama doesn’t like the policy, does the DOJ really have to appeal? I know that it is their duty to argue on behalf of the laws of the United States, but would it really go against their legal ethics if they said, “We read the judge’s opinion. It seems to be legally valid, therefore we will not appeal?” Yes, the DoJ is only obligated to defend the law once, in the original court. They do not have to keep appealing the decision. (That’s happening in California right now, where the Governor & Attorney General have both decided not to appeal the court ruling on same-sex marriage. Others are trying to appeal the decision, but they might be ruled not to have ‘standing’ to appeal it.) > [@Projammer](#): > > Or would it be a more politically savvy move to let it go to the supreme court and get the weight of a SCOTUS ruling behind it? I don’t know about ‘politically savvy’. But if it ends at the Appeals Court level, then it applies only to that District (#9, basically the western coast of the US). Courts in the other Districts are not bound by this decision (though they will probably consider it). But as soon a court in another District rules to uphold DADT (I think some already have, in the past), you have a disagreement between District Courts, and a law which is legal in one district and illegal in another – that’s what the Supreme Court was set up to decide. So it is likely to reach the Supreme Court eventually. A lot of the maneuvering is about which case & which ruling come to the Supreme Court, and what time that happens (that is, who is sitting on the Supreme Court at the time). ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [September 12, 2010, 9:18pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/38 "2010-09-12T21:18:57Z")
> [@Sage\_Rat](#): > > > [@BigT](#): > > > > 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? > > 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. It was my impression (read: hope) that ending DADT meant gays CAN"T be discharged for their orientation. Please explain why I’m wrong (I appearantly am) ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 12, 2010, 9:35pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/39 "2010-09-12T21:35:30Z")
> [@etv78](#): > > It was my impression (read: hope) that ending DADT meant gays CAN"T be discharged for their orientation. Please explain why I’m wrong (I appearantly am) I’m not saying that that’s wrong. My point was that I’m not sure the two are related. Sexual orientation isn’t yet a protected class like race or gender is. If DADT is struck down based on the 1st Amendment, then that merely says that _the military can’t restrict speech on the subject of sexual orientation_. That doesn’t have any relationship to whether or not the military can throw someone out for being gay, since it’s solely concerned with the freedom of speech. On the other hand if DADT is struck down based on judicial review (i.e. that the law has a meaningful and positive result in regards to its implied purpose), then while that removes _the law_ which requires the military to throw out gay people, it’s a decision that is only relevant to _law_. Military code is separate from law, just as a business’ hiring policies are separate from law. Just because the law disappears doesn’t mean that military policy disappears. Military policy isn’t subject to judicial review. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 12, 2010, 10:24pm UTC](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259/40 "2010-09-12T22:24:16Z")
> [@Sage\_Rat](#): > > Just because the law disappears doesn’t mean that military policy disappears. Military policy isn’t subject to judicial review. Yes it is! We are a nation of laws, and everything is subject to judicial review. The courts have traditionally given a fair amount of deference to the military, to allow them to decide what is the best policy, but there is nothing in law to require that. If a military commander were to decide that it is the best policy for unit cohesion & morale that his unit exclude non-white soldiers, courts would have no hesitation at all in giving that guy a quick dose of judicial review! [Previous page](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259.md?page=1) [Next page](https://boards.straightdope.com/t/federal-court-finds-dont-ask-dont-tell-unconstitutional/553259.md?page=3)