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

[Sage_Rat]

@t-bonham@scc.net

Yes it is!
We are a nation of laws, and everything is subject to judicial review.

I’m not saying that I disbelieve you, but I’d like to see a cite before believing that.

[Sage_Rat]

The Wikipedia says:

“Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the constitution itself.”

Presuming that description to be correct, I guess the question would be whether military policy falls under “administrative regulation”.

[Tim_T-Bonham.net]

@Sage_Rat

@t-bonham@scc.net

Yes it is!
We are a nation of laws, and everything is subject to judicial review.

I’m not saying that I disbelieve you, but I’d like to see a cite before believing that.

While, I think Article III, section 2 of the Constitution pretty much covers it all:

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

[Der_Trihs]

@jtgain

Since Obama doesn’t like the policy, does the DOJ really have to appeal?

The DoJ is stuffed full of “burrowed in” Bush appointees; they either aren’t going to care what Obama wants or will actively try to make him look bad. And they won’t care in the slightest what the law or justice actually is.

[etv78]

@Der_Trihs

@jtgain

Since Obama doesn’t like the policy, does the DOJ really have to appeal?

The DoJ is stuffed full of “burrowed in” Bush appointees; they either aren’t going to care what Obama wants or will actively try to make him look bad. And they won’t care in the slightest what the law or justice actually is.

With the exception of judges, don’t Justice personnel serve “at the pleasure of the President”?

[Koxinga]

@etv78

@Der_Trihs

The DoJ is stuffed full of “burrowed in” Bush appointees; they either aren’t going to care what Obama wants or will actively try to make him look bad. And they won’t care in the slightest what the law or justice actually is.

With the exception of judges, don’t Justice personnel serve “at the pleasure of the President”?

Is there a legal document in the entire United States that upholds any policy with those quoted words? That sounds rather royalist to me. In any case, I seem to remember a bit of a scandal where Bush fired some US attorneys for not toeing the line on torture or Gitmo or some such. Is this case different, now that the Presidency is surrounded by a halo of Obamaness?

ETA: Aaand, exception or no, since when are judges “Justice personnel”?

[etv78]

I meant that in the sense that Judges don’t come from the Department of Interior or Agriculture, that’s all.

[Tim_T-Bonham.net]

@etv78

@Der_Trihs

The DoJ is stuffed full of “burrowed in” Bush appointees; they either aren’t going to care what Obama wants or will actively try to make him look bad. And they won’t care in the slightest what the law or justice actually is.

With the exception of judges, don’t Justice personnel serve “at the pleasure of the President”?

Only the upper level of DoJ employees are Presidential appointments (US Attorneys & above). Lower level employees are Civil Service jobs, covered by those rules, and can’t be dismissed just by Presidential order.

[etv78]

Doesn’t that still mean they must uphold the law/judicial actions, even ones they politically disagree with?

[waterj2]

I’ll bump up my own thread with new developments. The Log Cabin Republicans submitted their proposed judgment today. This is the action they want the judge to take in regard to her previous decision. It looks like they were smart enough not to ask her to simply get rid of DADT and allow things to revert back to the outright prohibition beforehand. The DOJ has a week to respond. Anyways, here’s the full text of the proposed judgment:

This action was tried by Judge Virginia A. Phillips without a jury on July 13- 16 and 20-23, 2010. The Court filed a Memorandum Opinion on September 9, 2010 (Doc. 232), and Findings of Fact and Conclusions of Law. For all the reasons set forth therein:

IT IS ORDERED that the statute and policy known as “Don’t Ask, Don’t Tell,” codified at 10 U.S.C. § 654 and implemented by regulations comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and 1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008) (incorporating March 29, 2010 changes) and 1332.30 (2008) (incorporating March 29, 2010 changes), are declared to infringe the fundamental rights of United States servicemembers and prospective servicemembers and violate (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution and (b) the rights to freedom of speech and association and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

IT IS FURTHER ORDERED that the defendants the United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, are permanently enjoined from enforcing or applying the statute and policy known as “Don’t Ask, Don’t Tell,” including any implementing regulations, against any person under their jurisdiction or command, and from taking any actions whatsoever, or permitting any person or entity to take any action whatsoever, against gay or lesbian servicemembers, or prospective servicemembers, that in any way affects, impedes, interferes with, or influences
their military status, advancement, evaluation, duty assignment, duty location, promotion, enlistment or reenlistment based upon their sexual orientation; and they are further ORDERED to immediately suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under 10 U.S.C. § 654 and/or its implementing regulations on or prior to the date of this Judgment.

IT IS FURTHER ORDERED that the plaintiff Log Cabin Republicans may apply to recover from the United States its attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, in accordance with the provisions of that Act.

IT IS FURTHER ORDERED that the plaintiff Log Cabin Republicans shall recover its costs of suit herein to the extent allowed by law.

IT IS SO ORDERED.

[Projammer]

And the latest nail in the don’t ask don’t tell coffin.

Judge: return lesbian Air Force major to duty

In an opinion issued Friday, U.S. District Court Judge Ronald Leighton ruled that Margaret Witt, who held the rank of major when she was dismissed, was entitled to be returned to the 446th Aeromedical Evacuation Squadron at McChord Air Force Base “at the earliest possible moment.”
…
In the awkward defense of Witt’s discharge, government lawyers encouraged Leighton to consider polls showing generalized concerns about working or living with homosexuals, but the judge said it would not have been proper for him to do that given the appeals court’s instruction that he examine the specific circumstances of Witt’s specific case.

DADT is going down kicking and screaming, but it is undoubtedly going down.