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.
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.
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.
Yes, I was referring to that.
That’s interesting. Can you provide a cite for those numbers?
Wikipedia: 13,389 discharged since 1994.
Center for American Progress: 13,975 since 1994.
Servicemembers Legal Defense Network: 11,715 discharged 1994-2006.
Govt. Accounting Office Report: 9,488 discharged 1994-2003; cost of recruiting & training replacements = $189 million.
Thanks! That’s way higher than I’d have expected.
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.
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.
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.
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.
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.
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?”
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.
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?
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.)
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).
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.
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!