Judge Rules DADT Unconstitutional

[woolfe9999]

It could have been repealed damn near immediately on his order.

That is completely and totally false. All an executive order can do is temporarily suspend enforcement of DADT, and not even entirely that. DADT is an act of Congress and cannot be "repealed" by executive order. Even an order partially suspending enforcement can of course be reversed by the next administration. The only real solution is for Congress to repeal it. The Obama administration has not as yet ordered a suspension of enforcement because the issue is being studied by a commission whose report comes out in December and Obama doesn't want to be seen as usurping the authority of Congress to repeal its own laws by making an end around with an executive order. Conservatives are the first to oppose the abuse of executive orders when it is done by democrats. Now you want to criticize him for exercising restraint? Lame.

- wolf

 

[PokerGuy]

An injunction is not the creation of law. For thinking that even after I explained it makes you an idiot.

Apparently you fail at reading. I said "effectively", meaning "it has the same effect", even though it's not actually technically creating law. You must be a product of the failed public school system.

 

[zsdersw]

How is that possibly being disingenous? Just because I have a different opinion than you and I feel that there's a correct process for doing things?

You wouldn't be happy with allowing gays to serve openly in the military no matter how it happened. Your concern over the process, as opposed to the underlying issue, is what's disingenuous.

 

[HumblePie]

Apparently you fail at reading. I said "effectively", meaning "it has the same effect", even though it's not actually technically creating law. You must be a product of the failed public school system.

Umm, it is not even "effectively" or even "it has the same effect" to place an injunction. Removal of a law is not creation of a law nor is it "effectively" creating one. Learn the difference. An example of judicial legislation would be creating a law precedent on a case based off another law that was not intended to be used for that case.

 

[Doc Savage Fan]

Apparently you fail at reading. I said "effectively", meaning "it has the same effect", even though it's not actually technically creating law. You must be a product of the failed public school system.

Leave him be...he's projecting again.

 

[PokerGuy]

Leave him be...he's projecting again.

Yep, I see that, he has difficulty understanding things unless you spell them out.

 

[PokerGuy]

Umm, it is not even "effectively" or even "it has the same effect" to place an injunction. Removal of a law is not creation of a law nor is it "effectively" creating one. Learn the difference.

Dufus, if you create a law that says "jumping up and down is illegal", and a judge rules that such a law is unconstitutional because jumping up and down is a basic human right (even though there's nothing in the constitution about jumping up and down), it's not technically creating anything, but it has the same effect, essentially establishing a right to jump up and down. In other words, legislating from the bench. My goodness, this is not a complicated concept.

 

[HumblePie]

No, an example of that would be.

A judge orders property to be sold under the government’s power of eminent domain simply so the new private property owners may build projects that yield more tax revenue to the government.

Injuction of a law does not activate it's opposite. It can, but doesn't mean that. Stating DADT is not consitutional is not removing the ban of gays in the military. It is also not FORCING the military to accept gays either. Now if the judge stated that the laws were no go, and then said because of affirmative action that they must accept gays, that would be a different story. That would be activism.

 

[xj0hnx]

No one ever said the hazing was because he's gay, but yes.. he could've been discharged under DADT for revealing his homosexuality in testimony describing the misconduct.

You're missing the point. Simply testifying about he misconduct isn't going to force him to say he's gay, they can't even ask him if he is, so unless he has "I'm homosexual" tourette syndrome there's no reason for his sexuality to come up.

 

[squirrel dog]

A holy jihad should be called upon this infidel . Death , Death , Death , let the rivers run red with the blood of this one . Or , fuck it .

 

[bfdd]

took long enough.

 

[zsdersw]

You're missing the point. Simply testifying about he misconduct isn't going to force him to say he's gay, they can't even ask him if he is, so unless he has "I'm homosexual" tourette syndrome there's no reason for his sexuality to come up.

What does it matter, if someone can get him discharged in retaliation? He refused to answer questions for fear of being outed.

 

[Fear No Evil]

Super-majorities, of either the Republican or Democratic variety, do not lend themselves to what you're saying. Why? Simple: there's more diversity. In the case of a Democratic super-majority, you'll have a lot more conservative Democrats. In a Republican super-majority, you'll have a lot more liberal Republicans.

There is less incentive for members of either party to vote as one when their party has a super-majority.

So the bigots are not only on the Republican side like you claim, but also on the Democrat side? You seem to be kind of disproving your own point if you are admitting that Democrats won't vote pro-gay either. We won't have 60 senators who will vote for gay rights when 59 of them are Democrats?

 

[EagleKeeper]

No one ever said the hazing was because he's gay, but yes.. he could've been discharged under DADT for revealing his homosexuality in testimony describing the misconduct.

You're missing the point. Simply testifying about he misconduct isn't going to force him to say he's gay, they can't even ask him if he is, so unless he has "I'm homosexual" tourette syndrome there's no reason for his sexuality to come up.

Any inquiry would ask why they did such actions.
A defense lawyer would be able to twist the scenario to force an admission of being gay. To deny such would then allow the defense to challenge the overall complaint and get it dismissed as a general hazing vs an assault against the person's civil liberaties

 

[xj0hnx]

Any inquiry would ask why they did such actions.
A defense lawyer would be able to twist the scenario to force an admission of being gay. To deny such would then allow the defense to challenge the overall complaint and get it dismissed as a general hazing vs an assault against the person's civil liberaties

Any inquire into anyone could just be turned on them and accusation made that anyone is gay, doesn't mean they are, and doesn't mean they have to admit they are, that's called a cop out.

 

[DisgruntledVirus]

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.

I didn't read the thread to see if somebody already said this, but:

You're blind if you don't see the difference between the examples you provided and prohibiting gay service members from serving. Do you believe blacks/asians/minorities should be banned? How about women? What about bisexuals?

There is no sound military reasoning as to why gays should be barred from serving. If you have a logical and rational arguement as to why gays should be barred from serving, please elaborate. I look forward to any intelligent discussion on the subject.

 

[zsdersw]

So the bigots are not only on the Republican side like you claim, but also on the Democrat side? You seem to be kind of disproving your own point if you are admitting that Democrats won't vote pro-gay either. We won't have 60 senators who will vote for gay rights when 59 of them are Democrats?

There are conservative Democrats who are not friendly to gay issues and the "gay agenda". I never said there wasn't, or that there were no "bigoted" Democrats. The fact remains that of the two major political parties only one is even remotely close to being a friend of the GLBT community and its issues.. and that's the Democratic party.

Your entire post is filled with non-sequiturs. Democrats do vote "pro-gay". More Democrats than Republicans vote "pro-gay", but nowhere would anyone reasonably claim that a Democratic super-majority would necessarily advance, significantly, the "gay agenda".

What do you suppose a Republican super-majority would do for the "gay agenda"? Well, the conservative base would probably try to pass all sorts of things that would solidify the position of GLBT individuals as marriage-less, adoption-less second-class citizens. They might even try to pass a federal Constitutional amendment defining marriage as one man, one woman. Where would these attempts go? Well, they would be unlikely to pass because Republicans, in order to attain a super-majority, had to field more liberal or moderate candidates to win over areas traditionally held by Democrats.

So, while a Democratic super-majority won't get far advancing gay rights, a Republican super-majority won't get far pushing back gay rights. It's a rub, but it is also quite clear.. for advocates of gay rights such as myself.. which is the more desirable of the two: trying to advance is better than trying to push back.

At the end of the day, on almost every issue or agenda, super-majorities in Congress are a guarantee of failure.. and nothing more. The enlarged intra-party diversity of a super-majority abhors the unity required to pass sea-change reforms.

 

[tinker2141]

I am in the Military and I am all for them to lift the Don’t ask, Don’t tell, Do not peruse and do not harass. Yes there is more to it than what is usually discussed. You do need to realize even if repealed the military does have every right to interpreted it in the manner in which we choose to. I am a pretty tolerant human being. I do have limits. As do most we will not completely tear down our institution to accommodate this. I really hope that simply serving openly, you and your partner share equal rights as every other service member is good enough.

 

[zsdersw]

I really hope that simply serving openly, you and your partner share equal rights as every other service member is good enough.

That's all we're advocating.

 

[tinker2141]

That's all we're advocating.

Then I am for it and would hammer any member of my platoon for bigotry just like anything else. When I discuss this with other senior leaders they are scared of men wearing female dress uniforms, cats and dogs and other sillyness. We are still the military, people know what we are about and nothing is going to change the definition of good order and discipline. Some just cant wrap there head around that.

 

[Wreckem]

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!

You do realize a District Court ruling ONLY applies to the District it was in. Then it appeals to the area covered by the Circuit Court of Appeals if upheld by the Circuit Court of Appeals that covers that area. The DoJ lawyers are right, the District Judge has no authority to issue an injunction nationwide. The injunction won't stick, it may be upheld by the 9th Circuit but would be promptly smacked down by the SCotUS. Then the meat of the case will be bogged down in probably a decade of appeals. Obama would have to have the DoJ stand down, which would be a bigger disaster than his and Congress' committees.

All the civil rights issues dealing with gay rights will eventually be settled by courts, just not any time soon. And it will be the SCotUS ultimately deciding not some district court judge.

And people need to stop using the term legislating from the bench. Thats what judges do in a common law system. Most of the laws in existence today were "legislated" from the bench. Ruling something unconstitutional shouldn't even be considered legislating from the bench.

Due Process and equal protection are legit constitutional issues when it comes to these gay rights court cases. I know blacks don't like the gay rights issues being compared to the civil rights movement, but essentially the issues are the same, due process and equal protection.