Judge Rules DADT Unconstitutional

[zsdersw]

http://www.advocate.com/News/Daily_News/2010/09/09/Judge_Rules_DADT_Unconstitutional/

In a longstanding lawsuit brought by the Log Cabin Republicans, a federal judge has ruled that the military's "don't ask, don't tell" policy violates the U.S. Constitution.

U.S. district judge Virginia A. Phillips wrote in an 85-page opinion handed down late Thursday that the DADT statute, passed by Congress in 1993, violates both the First Amendment and due process rights of gay servicemembers. Phillips further ordered a permanent injunction barring enforcement of DADT.

"[T]he evidence at trial demonstrated that [DADT] does not further significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests," Phillips wrote.

The Justice Department has until a September 23 deadline to submit objections to the court regarding Phillips' injunction, which they are likely to do: DOJ attorneys have argued that Phillips does not have the authority to issue a nationwide injunction against the ban on openly gay servicemembers.

DOJ officials have not yet issued a statement on the decision and whether they intend to appeal.

Dan Woods, lead attorney for the Log Cabin Republicans who has worked on the case since it was first filed in 2004, told The Advocate that Judge Phillips' opinion "is going to put a lot of pressure on the Obama administration as to whether they will appeal."

Woods said he would "fight like hell" for the injunction to stand, which would ostensibly allow gays to serve openly in the U.S. military almost immediately.

"We won’t have to wait for a filibuster, for a Senate vote, for the November midterm elections. That was the whole reason to have this trial," Woods said. "I've always thought that the court would be the fastest way to protect the constitutional rights for homosexuals who wanted to conform to military values and serve our country."

Log Cabin Republicans executive director R. Clarke Cooper called the decision "not just a win for Log Cabin Republican servicemembers, but for all servicemembers.”

The decision in the case, one that received scant attention in the mainstream media when it went to trial during a two-week period in July in Riverside, Calif., comes amid growing concern over whether a vote on DADT repeal in the Senate will take place before lawmakers adjourn for the midterm elections (click here for a recent article on the Senate vote).

It's also one of several court victories for the gay rights movement this year, in stark contrast to legislative inaction on the federal level, where repeal of “don’t ask, don’t tell” remains in doubt and passage of the Employment Nondiscrimination Act (ENDA) is all but dead in the current Congressional session. In July a federal judge in Massachusetts ruled unconstitutional a section of the Defense of Marriage Act, followed by the August decision in the Proposition 8 federal case, striking down a 2008 Calif. ballot measure that stripped the right to marry from same-sex couples in the state.

In her opinion, Phillips not only found that DADT furthered no governmental interest, but that it has also been used to “[prevent] servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge.”

Evidence of such abuse abounded at trial. Former petty officer 3rd class Joseph Christopher Rocha, who was ultimately discharged from the Navy, had testified in graphic detail about pervasive humiliation he suffered while in training to become an elite military dog handler. A superior had forced him to simulate oral sex on another man while fellow soldiers were paraded into the room to watch. He was also once tied to a chair, force-fed dog food, and was put into a kennel filled with dog feces.

In an investigation of the misconduct, Rocha refused to answer questions because he was afraid that he would be outed if he did so, he testified.

"I'm confident that, at least personally, had 'don't ask, don't tell' not been the policy, I would have felt confident to report the abuse when it escalated and not fear reprisal,” Rocha said during trial.

Phillips also rejected arguments by Justice Department attorneys that the Log Cabin Republicans did not have standing to bring the case and had “manufactured” its membership list. Government attorneys questioned whether one named servicemember in the suit, Servicemembers United executive director Alex Nicholson; and “John Doe,” a lieutenant colonel still serving in the Army Reserves, were actual members of the gay Republican group at the time the suit was filed.

"As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy," Nicholson said in a statement after the decision. "We are finally on our way to vindication."

Justice Department attorneys did not offer witnesses in the trial. They relied on the legislative history of DADT and argued that any antigay motives in passing the law were irrelevant. “We do not believe that a trial is necessary or appropriate," assistant U.S. attorney Paul Freeborne said in July. "The court should resolve this case as a matter of law.”

During the trial, the legal team led by Woods called to the stand both servicemembers affected by the policy and expert witnesses such as Palm Center director Aaron Belkin and Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.

Good news. We'll see what happens next.

 

[PeshakJang]

U.S. district judge Virginia A. Phillips wrote in an 85-page opinion handed down late Thursday that the DADT statute, passed by Congress in 1993, violates both the First Amendment and due process rights of gay servicemembers. Phillips further ordered a permanent injunction barring enforcement of DADT.

I just don't understand this reasoning. There are many, many things that you can/can't do in the military that would be considered constitutional violations. You don't have the right to free speech, you don't have the right to assemble in protest, and to some extent you don't have a right to due process or to be secure in your personal property.

 

[waggy]

no suprise. but yeah good news and hope it stands.

 

[PokerGuy]

No surprise indeed. Another ruling from an activist judge intent on legislating from the bench. As PeshakJang pointed out, there are plenty of restrictions on actions that are otherwise constitutionally protected (such as speaking out against the commander in chief), but this one is not politically correct so it must be legislated away from the bench.

 

[Doc Savage Fan]

I'm surprised our Commander-In-Chief hasn't revoked this policy a long time ago. What's up with that?

 

[daishi5]

I just don't understand this reasoning. There are many, many things that you can/can't do in the military that would be considered constitutional violations. You don't have the right to free speech, you don't have the right to assemble in protest, and to some extent you don't have a right to due process or to be secure in your personal property.

This quote seems to explain it:

In her opinion, Phillips not only found that DADT furthered no governmental interest, but that it has also been used to “[prevent] servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge.”

Evidence of such abuse abounded at trial. Former petty officer 3rd class Joseph Christopher Rocha, who was ultimately discharged from the Navy, had testified in graphic detail about pervasive humiliation he suffered while in training to become an elite military dog handler. A superior had forced him to simulate oral sex on another man while fellow soldiers were paraded into the room to watch. He was also once tied to a chair, force-fed dog food, and was put into a kennel filled with dog feces.

I think the reasoning is: DADT is preventing them from petitioning the government when they are mistreated, and preventing them from due process because they cannot report the violations that make it clear they are gay. It seems reasonable from a non-lawyer standpoint.

 

[Fear No Evil]

I'm surprised our Commander-In-Chief hasn't revoked this policy a long time ago. What's up with that?

Gay rights don't seem to be very high on this Administration's to-do list. If he were Republican I think we'd be having the term 'bigot' thrown at him regularly.

 

[Vette73]

Gay rights don't seem to be very high on this Administration's to-do list. If he were Republican I think we'd be having the term 'bigot' thrown at him regularly.

Yea as long as you ignore the fact he is against DADT.

But hey why let facts get in the way of some Obama bashing. Never stopped you or other trolls before.

 

[Fear No Evil]

Yea as long as you ignore the fact he is against DADT.

But hey why let facts get in the way of some Obama bashing. Never stopped you or other trolls before.

And you are ignoring the facts that it took him well into his first term before even ADDRESSING DADT.. and then he cut and run and handed it off to a bunch of studies and committees to look at. It could have been repealed damn near immediately on his order.

He has also done nothing to push other gay rights issues like civil unions, benefits at workplaces, etc.. He has time for a lot of vacations and to hammer out bailout after bailout, just no time for gays.

Actions speak louder than words.. He campaigned on addressing many of these things and has just failed to do anything. I guess we can just go back to the usual excuse, its Bush's fault.

 

[PokerGuy]

I guess we can just go back to the usual excuse, its Bush's fault.

Why should the legislative and executive branches have to tackle a thorny issue when it can just as easily be legislated from the bench?

 

[zsdersw]

Disingenuity from FNE and PG. Par for the course, to be sure.

 

[zsdersw]

Gay rights don't seem to be very high on this Administration's to-do list. If he were Republican I think we'd be having the term 'bigot' thrown at him regularly.

Show me a Republican administration that has been as or more supportive of GLBT rights/issues.

 

[EagleKeeper]

Why should the legislative and executive branches have to tackle a thorny issue when it can just as easily be legislated from the bench?

you have elected people that have admitted that the policy is wrong; get to duck and run because of a vocal minority.

They choose to let the bench solve the issue because they are to chicken to put their name on record.

 

[PokerGuy]

Disingenuity from FNE and PG. Par for the course, to be sure.

Dis-ingenuity? How so? It was a thorny issue for the president, he's been walking that tightrope for a couple of years. This is much easier, no messy debate, no public votes, no senate filibuster, no laws to pass and all that fuss, just have a judge create the law and voila, done!

 

[PokerGuy]

They choose to let the bench solve the issue because they are to chicken to put their name on record.

Exactly.

 

[zsdersw]

I'm surprised our Commander-In-Chief hasn't revoked this policy a long time ago. What's up with that?

As a pragmatist, I'm pleased he's done what he has to eliminate the policy. They're steps in the right direction. And at any rate he's clearly done more than Bush (who did nothing) or Clinton (who, of course, championed it).

 

[zsdersw]

Dis-ingenuity? How so? It was a thorny issue for the president, he's been walking that tightrope for a couple of years. This is much easier, no messy debate, no public votes, no senate filibuster, no laws to pass and all that fuss, just have a judge create the law and voila, done!

I call disingenuity for two reasons:

1.) I'm not at all convinced you support gays serving openly in the military.

2.) The legislative action you tacitly imply should have been used would, if it occurred, be criticized by you (and others) as Obama not focusing on matters of importance.

 

[Moonbeam]

The Senate is the hold up on revocation of the law. Already done in the House and Executive.

 

[HumblePie]

I call disingenuity for two reasons:

1.) I'm not at all convinced you support gays serving openly in the military.

2.) The legislative action you tacitly imply should have been used would, if it occurred, be criticized by you (and others) as Obama not focusing on matters of importance.

Yep, this would be a damned if he does and damned if he don't situation. Obama repeals the law and everyone that hates Obama on these boards go nuts. If he does, we get what we are seeing here. Not quite as nuts, but still some trolling.

Personally, I think DADT is stupid. It is not needed. It is nothing more than religious whacko dictation of legislation which we don't need. However, as also stated, members of the military do not have the same constitutional rights as regular civilians. They signed that away to be under the UCMJ.

 

[Bird222]

I'm surprised our Commander-In-Chief hasn't revoked this policy a long time ago. What's up with that?

From what I understand, Congress passed this and they want Congress to change it. If Obama got rid of it with an executive order another president could just come in and put it back.

 

[PokerGuy]

I call disingenuity for two reasons:

1.) I'm not at all convinced you support gays serving openly in the military.

Where exactly did I say I was?

2.) The legislative action you tacitly imply should have been used would, if it occurred, be criticized by you (and others) as Obama not focusing on matters of importance.

The point is that the process has been stood up on it's ear, having it legislated from the bench rather than face those pesky hurdles of actual legislation.

 

[zsdersw]

Where exactly did I say I was?

You didn't, and I didn't say you did. You should support them serving openly, but that's another matter.

The point is that the process has been stood up on it's ear, having it legislated from the bench rather than face those pesky hurdles of actual legislation.

And how does that remove you from being disingenuous, again?

 

[xj0hnx]

I just don't understand this reasoning. There are many, many things that you can/can't do in the military that would be considered constitutional violations. You don't have the right to free speech, you don't have the right to assemble in protest, and to some extent you don't have a right to due process or to be secure in your personal property.

This.

LOL at freedom of speech in the military. It's explained during your MIP that you are giving up some Constitutional rights, as a matter of fact if I remember correctly, you even sign a form acknowledging such, specifically freedom of speech, and attending rallies of ANY kind in uniform, and in official capacity.

 

[xj0hnx]

This quote seems to explain it:


I think the reasoning is: DADT is preventing them from petitioning the government when they are mistreated, and preventing them from due process because they cannot report the violations that make it clear they are gay. It seems reasonable from a non-lawyer standpoint.

How could reporting a violation make it clear one is gay?

 

[zsdersw]

How could reporting a violation make it clear one is gay?

An example is provided in the article.