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

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.

So....

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.

Enough.

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

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On The Fence To Get Obama Off The Fence

(Lt. Dan Choi, Iraq war, and Capt. Jim Pietrangelo after handcuffing themselves to the White House fence in protest of the anti-lesbian/gay policy of "Don't Ask, Don't Tell" on 18 March 2010. Photo from AmericaBlog.)

Yesterday three people were arrested for an act of civil disobedience following a Human Rights Campaign rally protesting "Don't Ask, Don't Tell", which featured Kathy Griffin. Two of the arrestees were former and current members of the military, Lieutenant Dan Choi and Captain Jim Pietrangelo. Also arrested was activist Robin McGehee of GetEQUAL.

Lt. Choi, a West Point graduate, is facing a pending dishcarge under the DADT policy after he came out as gay on the Rachel Maddow Show. Capt. Pietrangelo has already been formally discharged under DADT for being openly gay.

According to ChicagoPride.com, McGehee and Pietrangelo were the first to handcuff themselves to the White House Fence, followed by Choi, and McGehee was the first to be arrested.

GetEQUAL activist Robin McGehee being arrested as she defends the protest against DADT at the White House on 18 March 2010. Photo from Towleroad.

Early coverage in an article from Towleroad states "Lt. Choi spoke at the rally and asked participants to join him on a march to the White House. Choi led hundreds of people from the rally to the White House where he and Cpt. Pietrangelo cuffed themselves to the fence while the crowd rallied around them. Shortly thereafter Choi and Pietrangelo were cut from the fence and arrested by police. During the minutes leading up to their arrest, activist Robin McGehee of GetEQUAL was also arrested."

Robin McGehee has been traveling with Lt. Choi and is co-director of the National Equality March. She covered the event via Twitter and her reporting sequence can be found in the Towleroad article. According to McGehee, she asked "Human Rights Campaign President Joe Solmonese if Choi could speak at the rally and he rebuffed her, telling her it was Kathy Griffin's rally."

HRC offered an explanation later of their decision to not agree to Choi speaking and then remaining at the rally site when the action left to protest at the White House. HRC also covered the rally at their blog. John Aravosis at AmericaBlog refutes the HRC statement as "utterly untrue".

AmericaBlog covered this story as it was breaking, with video, photographs, and first-hand reporting. They refer to the protestors as "Handcuffed to the fence in front of Barack Obama's White House to protest the President's failure to deliver on his promise to end DADT. This is not the photo that the White House ever wanted. But, it's come to this."

According to The Advocate,"United States Park Police spokesman Sgt. David Schlosser" stated "both men were taken to Park Police's Anacostia station for processing, where they were charged with failure to obey a lawful order. Choi and Pietrangelo will be held overnight and are scheduled to appear in D.C. Superior Court on Friday." This article also states McGehee was arrested "apparently for helping the two discharged soldiers handcuff themselves to the fence. An officer who arrested McGehee said 'I can't say anything' on why she was taken into custody. McGehee was bailed out and released Thursday evening.

The Human Rights Campaign and other mainstream LGBT rights organizations focus on the repeal of DADT as a main rallying point and fundraiser. GetEQUAL's statement of purpose reads "I join with others who are ready to take bold action to demand equality for LGBTQ people. I will not accept excuses, delays, compromises, or empty promises, and I will hold accountable any person or organization who stands in the way. I will push back, rise up, and speak out against all forms of discrimination that plague our community."

Other organizations within the lesbian and gay community do support causes such as repeal of DADT and removal of the state from marriage definiton, but decry mainstream focus on these two questions to the detriment of other liberation issues which affect a much larger percentage of the population -- issues of job and housing discrimination, children's rights, and freedom from violence. One such group is the sardonically named Against Equality, which promotes "Queer challenges to the politics of inclusion." A sizable percentage of lesbians and gays are anti-war and opposed to the growing militarism of American culture. Their voice is represented in the poster below found at a bus stop at 17th and Castro in San Francisco, apparently placed in mid February 2010 by guerrilla artists from Truthforce (photo by Roseanne Dunbar Ortiz.)

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