Wednesday, October 13, 2010

“Don't Ask, Don't Tell” Demolished by Federal Judge

Judge's gavel set consisting of a highly polished dark wooden mallet with brass around the center of the mallet securing the long thin handle to the mallet; the head of the mallet is resting on an accompanying circular sound block made of the same highly polished dark wood. To our right as we look at the photograph, on the table next to the gavel set, sits a brass Scale of Justice.

After 17 Years, Judge throws out “Don't Ask, Don't Tell”

U.S. District Court Virginia A. Phillips of Federal District Court for the Central District of California issued an injunction in the Log Cabin Republicans v. United States of America and Robert M. Gates, Secretary of Defense. (Amended and Final Memorandum Opinion. Findings of Fact and Conclusions of Law. Injunction.)

The New York Times

A federal judge on Tuesday ordered the United States military to stop enforcing the “don’t ask, don’t tell” law that prohibits openly gay men and women from serving.

Judge Virginia A. Phillips of Federal District Court for the Central District of California issued an injunction banning enforcement of the law and ordered the military to immediately “suspend and discontinue” any investigations or proceedings to dismiss service members.

In language much like that in her Sept. 9 ruling declaring the law unconstitutional, Judge Phillips wrote that the 17-year-old policy “infringes the fundamental rights of United States service members and prospective service members” and violates their rights of due process and freedom of speech.

While the decision is likely to be appealed by the government, the new ruling represents a significant milestone for gay rights in the United States.

The government has 60 days to file an appeal. “We’re reviewing it,” said Tracy Schmaler, a Justice Department spokeswoman, adding that there would be no other immediate comment. The government is expected, however, to appeal the injunction to the Court of Appeals for the Ninth Circuit to try to keep it from taking effect pending an appeal of the overall case.

Such a move would carry risks, said Richard Socarides, who was an adviser to President Bill Clinton on gay rights issues. “There will be an increasingly high price to pay politically for enforcing a law which 70 percent of the American people oppose and a core Democratic constituency abhors,” he said.


The Justice Department does not HAVE to appeal. If they don't appeal, then that's it. The injunction stands and DADT is history.

Of course, a Republican Congress (and Senate, and President, over-riding a Senate Democratic Filibuster) could pass a law putting DADT or even worse back into place. In practical terms however, once this is done -- and the world doesn't end -- then it won't matter what law Congress passes. The Courts, including the Supreme Court, will always over-rule any future laws on the basis that they are clearly unconstitutional.

The only chance DADT had of sticking was that the deference which the Courts typically extend to the Executive when it comes to Military Law and Discipline. Up until the testimony which this Court and a few others around the country have been hearing, it has been impossible to prove, in the sense that Courts need to have in order to over-turn a law, that the deference to Military Law and Discipline, no matter how much it now seems to fly in the face of common sense today (as opposed to perhaps 17 years ago when DADT was enacted) is unjustified. But now, with the testimony of these witnesses -- read the Amended and Final Memorandum Opinion. Findings of Fact and Conclusions of Law. They'll blow you away. -- it is harder and harder for anyone to argue convincingly that the bigots have any ground to stand on when they say DADT contributes to good Military Discipline.

See, the entire POINT of having a separate legal system for the military is because it contributes to good military discipline and order. Just as a simple example, homicide, in the military, is an offense (or at least it used to be back in the 1948 version of the Courts Martial manual, because it was an "offense against good order and discipline." The point being that if the homicide furthered good order and discipline, e.g.: shooting an officer or soldier down in combat who ran or refused to obey a direct order to advance on the enemy, that homicide while chargeable, was defensible because it was in furtherance of good order and discipline.

In precisely the same way, the ENTIRE POINT of DADT, according to the bigots, was that all of the queers would cause a breakdown in military good order and discipline and worse, infect all of the good Christian (and the few Jewish) healthy all-American men and women whom never would let a cock or pussy of the same sex into their mouths or anuses.

What the Findings of Fact are clearly showing is that Lesbians and Gays are all over the military, that the military knows this, doesn't care at all, and finds them to be exceptional warriors. That the only people who care are the bigots. That once DADT is gone, these troops can serve just like everyone else, and the Chain of Command can crack down on the bigots like the furry of God's Own Thunder. Which will result, fairly promptly, in the bigots either leaving the service, getting crappy performance reviews and being forced out of the service, shutting the hell up, or maybe, perhaps, learning something. Either way, things will get better.


What do y'all think? Including how do you think this might impact the elections?