Federal Judge Rules Against Don't Ask Don't Tell

A federal judge in California has ruled that the armed services' Don't Ask Don't Tell policy violates the constitutional rights of gay and lesbian service members. From Politico:

District Court Judge Virginia Phillips -- a Clinton appointee -- also wrote that the policy has had a "deleterious effect" on the military and issued an injunction restraining the military from enforcing the policy, though the government may appeal.

The Log Cabin Republicans filed the lawsuit against Defense Secretary Robert Gates, and Phillips cited in her ruling the Obama administration's desultory defense.

Complete ruling.

Comments

[ID]

Why even bother having an legislative branch? I, for one, welcome our new robed masters

[Your President]

Workin' on it!

[Mike Laursen]

Judges are supposed to make judgements. Sometimes they get it right (i.e. make the decision you like). Sometimes they don't.

This time they got it right.

[Michael Ejercito]

This time they got it right.

How do you reconcile this ruling with Goldman v. Weinberger, 475 U.S. 503

[Mike Laursen]

Instead of just naming a case, can you like give a little explanation about why a case about a guy not being allowed to wear a yarmulke in the military is considered relevant to "Dont ask, don't tell."?

[Mike Laursen]

Oh, I see you posted further down and gave more explanation.

By "this time they got it right" I only meant that the judge got it "right" ethically.

I wasn't claiming that it was the right decision legalistically. It may have been completely wrong in that sense. IANAL.

[Tonio]

Why even bother having an legislative branch? I, for one, welcome our new robed masters[.]

So, ID, does that apply to DC v Heller, too?

[The Mossy Spaniard]

Frankly, I'll take pro-liberty judicial activism over democracy any day.

[Ben]

Um, isn't the whole idea of a "pro-liberty judicial activism" kind of non-existent?

[Logfile]

In what way? It's not inherently less "pro-liberty" than any other branch of government.

[JoshINHB]

There's something very wrong with "libertatians" calling for enlightened dicatorship.

[heller]

Democracy is a dictatorship too.

[Fluffy]

I don't think this ruling was correct and will say why below, but every element of the Bill of Rights is anti-democracy.

In fact, our experience with the Bill of Rights strongly implies that it should be possible to construct a constitutional order that so inhibits the legislature's ability to enact nonlibertarian laws that the legislature has, in effect, nothing to do but take roll.

In such a case we would be living in a kind of enlightened dictatorship - the dictatorship of whoever composed the original constitution. But it would be awesome, as far as I am concerned.

[JoshINHB]

The Bill of Rights is about limits on government, not allowing government policy to be set by judges.

At this point is there any issue that can't be twisted to fit some alleged violation of a penumbra of right.

How about tax policy?
There's plenty of discrimination there.
Should courts take that over.

What about enviro policy. We already had the courts back an unconstitutional take over of legislative action by the bureaucracy.
Maybe some lefty judge will decide that not taking action on GW is a violation of someone's rights.

Ending don't ask don't tell is the right policy, but doing it this way is absolutely wrong and further pushes us away from being a republic.

[Hobo Chang Ba]

The constitutional-law wing of the judicial branch has been by far the single most constructive branch of government for years, the last check on tyranny, which they not always but usually get right. If the judicial branch knocks down a law, usually it is because the law was unconstitutional or could be reasonably interpreted as such. If they uphold a law, they are no better or worse than the legislature and executive who passed the legislation. Also, these bad decisions tend to get reversed down the road. It's rare that they create laws out of thin air; usually they are just expanding the definitions of what is or isn't protected from legislative and executive action. Thus to say the equal protections clause covers all citizens, including gays, is not the same thing as the judiciary becoming a second legislature.

[Xenocles]

Democracy is justa means to an end. I'd greatly prefer a hypothetical dictatorship where the dictator reliably preserved individual rights and liberties to our present system. It's just that as unreliable as it is, the democratic method seems to be the best out there for the purpose, on average, because there's never a guarantee that the dictator will always be benevolent.

[Logfile]

I can't speak for The Mossy Spaniard, but I was referring to the concept of separation of powers, not a dictatorship. Which, in my opinion, helps the cause of liberty. Democracy can destroy liberty just like any other form of government. That's why there's a constitution, a judiciary, and an executive. It's also part of the reason why there are states rather than just a single unitary government. If democracy is so great, why not just have everyone vote on everything?

[I]

You're not the first to describe tyranny as liberty. Thank god for the Magna Carta and the rule of law. If you want to change something, do it legitimately through the legislative branch.

[Logfile]

I take it that you've never heard of tyranny of the majority then?

[Episiarch]

Why do I suspect that if the judge ruled that income tax was illegal, you'd praise the decision to the skies (as would I)? Methinks it's only when homos are involved that it upsets you.

Personally, I'm down with any judicial ruling that increases liberty (as this ruling does). Fuck the legislative branch, those corrupt motherfuckers who will pander ceaselessly to the majority. Fuck the judicial branch too most of the time, but sometimes, like this time, they do the right thing.

[prolefeed]

Shorter version: I'm down with anything that increases liberty. Period. Oh, and fuck politicians and bureaucrats.

[Aresen]

Yes.

[MindlessRobot]

Agreed.

[bobby b]

Homos are now running the income tax system? Damn. I gotta get out more.

"Liberty" is in the eye of the beholder, remember. You may love judges who "increase liberty", but what happens when you notice that the freedom to rent an apartment to whomever you want can be considered a liberty, and if George the Landlord doesn't like the new Gay IRS-agent rental applicant simply because he's a gay IRS agent, your new criteria might shut down access to anti-discrimination tools.

[Episiarch]

Huh? You want to try saying this in a way that makes sense?

[Hugh Akston]

bobby b is worried that he might have to share an apartment with a gay IRS agent. We have all had that fear at one point or another.

[dhex]

gay or straight, an irs agent is still going to try to fuck you whenever he gets the chance.

[heller]

The freedom to rent your apartment to whomever you want isn't liberty?

[Hugh Akston]

When was the last time the legislature did anything legitimately?

[The Mossy Spaniard]

This was the general sentiment behind my original post.

[Rrabbit]

1776, maybe?

[ola]

Thank who?

[jpe]

Reminds me of the FISA opinion out of MI a few years ago: right result, terribly written opinion.

[random passerby]

Citizens United, all over again?

[Hugh Akston]

I guess they had to wait until Bader-Ginsberg and Kagan were on the bench to get this one through.

[DADIODADDY]

what's going on under those robes? my eyss, it burns

[some guy]

Hey, I don't walk around telling people my sexual preferences...

[some woman]

Me, either. Sounds like it's nobody's business but mine.

[Government]

Okay, you two... report for re-education. Obviously, you're not sufficiently schooled in why it IS our business.

[Sensitivity Patrol]

No! This is OUR collar! WE get to interrogate these obviously oblivious anti-gay rabble-rousers!

[Logfile]

By excluding openly gay people, they were making it their business. If the policy ends up being "Don't Care, Don't Care" then it will truly not be the government's business (in regards to gay people in the military at least).

[Mr. FIFY]

I think that was the point of the posts above, Logfile.

[Tonio]

So, some guy and some woman, you've never talked about your husband/wife/boyfriend/girlfriend? You've never opined that a hollywood star of the opposite gender from you is hot/handsome/beautiful?

[Ted S.]

I do: I want to sleep with your wife.

[craigT]

Great, good for you, so does that mean you want to limit my freedom to express my sexuality. i don't walk around telling people my political preferences, so you shouldn't have that freedom either.

[kf]

Is that Uncle Sam's middle finger?

[Aresen]

Not sure. But it does appear he is picking his nose.

[Tony]

Go liberty! Oh wait. It's the gays. Nuance time!

[heller]

It's time Tony:

http://www.hookedonphonics.com.....5Qod22m1LA

[Lowdog]

My friend's father was a marine back in WWII and has done police work, security consulting, and a little bit of gun-running over the years.

He is adamant that most mercenaries are queerer than a 3-dollar bill, but are generally fierce soldiers. So what's the problem with letting gay folks into the military? If they want to enlist, and do a good job, who cares what sex they like to have sex with?

[Xtabentun]

A central part of military indoctrination is getting soldiers to the point where they will throw themselves on hand grenades for their buddies. Men would not do such a thing if they did not love each other.

I suspect the military leadership's reluctance to let gays openly serve is bound up in this complex. I read one criticism of ending DADT by a commenter at Ann Althouse's blog suggesting there would be problems if gay soldiers were placed in "intimate" situations with other soldiers, such as inside tanks or submarines. Like soldiery life isn't intimate! And filled with a homoerotic subtext, with easy access to gay "play" -- male on male contact being quite common.

But these same soldiers will punch you in the face for suggesting they are doing anything gay. Military life is also extremely, outwardly, homophobic.

There's something peculiar and psychological about this. It's as if we can't declare the presence of homosexuals among us, because that would undermine the undeclared homoeroticism (!) central to functioning as a soldier within a unit of other soldiers -- the rampant homophobia acting as a kind of bizarre, ironic and paradoxical defense mechanism.

[Xtabentun]

A central part of military indoctrination is getting soldiers to the point where they will throw themselves on hand grenades for their buddies. Men would not do such a thing if they did not love each other.

I suspect the military leadership's reluctance to let gays openly serve is bound up in this complex. I read one criticism of ending DADT by a commenter at Ann Althouse's blog suggesting there would be problems if gay soldiers were placed in "intimate" situations with other soldiers, such as inside tanks or submarines. Like soldiery life isn't intimate! And filled with a homoerotic subtext, with easy access to gay "play" -- male on male contact being quite common.

But these same soldiers will punch you in the face for suggesting they are doing anything gay. Military life is also extremely, outwardly, homophobic.

There's something peculiar and psychological about this. It's as if we can't declare the presence of homosexuals among us, because that would undermine the undeclared homoeroticism (!) central to functioning as a soldier within a unit of other soldiers -- the rampant homophobia acting as a kind of bizarre, ironic and paradoxical defense mechanism.

[DADIODADDY]

seriuosly high douche quotient there homo.

[dunphy]

it's driving libs crazy on da blogs that the two big pushes for GLBT rights - this one (lawsuit by log cabin republicans) and the fight against prop 8 were both spearheaded by repubs.

[Fluffy]

I have opposed Don't Ask Don't Tell, but I really can't get behind this ruling.

The entire notion that serving members of the military possess all the constitutional rights of civilians goes against all the case law on the subject that I know about, and is a practical absurdity.

Can our NCO's now behave like firefighters, and sue if officers of a particular race aren't promoted in the "right" numbers?

Can our privates declare that they have free speech rights, and tell their corporals to fuck off?

Can everyone in the military sue for damages for their uncompensated overtime?

[Fatty Bolger]

That's addressed in the ruling, actually.

In keeping with this well-established rule of deference, regulations of
speech in a military context will survive Constitutional scrutiny if they "restrict
speech no more than is reasonably necessary to protect the substantial
government interest.
...
The Don't Ask, Don't Tell Act fails this test of constitutional validity.
Unlike the regulations on speech upheld in Brown and Spock, for example,
the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell
Act is far broader than is reasonably necessary to protect the substantial
government interest at stake here.

[DADIODADDY]

I quess that's why they call them opinions, no facts or logical proof, just opinion

[Fatty Bolger]

That's just an excerpt, of course. You can read the ruling for more detail. Admittedly, they leaned very heavily on anecdotal evidence presented by the plaintiff. However, the defense presented no contrary evidence showing that the policy is necessary for military discipline, so that's to be expected. Because of that, it came down to traditional deference to the legislature vs. the Bill of Rights. The Bill of Rights won.

[DADIODADDY]

No, the homos won.

[Zeb]

The big difference between DADT and the examples you give is that the DADT rules apply when you are not on active duty. If you ever let anyone know you are gay and your superiors find out, you are screwed. I assume that a private on leave can tell his corporal to fuck off as much as he wants to.

[adam]

Your assumption is wrong. Soldiers have to show proper deference to superiors whether on leave or off. A soldier would be put in jail if he told an officer (probably not corporal) to fuck off, even if the soldier was on leave.

[adam]

Didn't SCOTUS rule specifically on don't ask don't tell at one point? If so, this judge is going directly against SCOTUS precedent.

[Fatty Bolger]

Nope. It's been upheld in federal court several times, but has not been taken up by SCOTUS.

[adam]

The Rumsfeld case on the Solomon amendment did get to SCOTUS though. It's been a while since I read that opinion, and I guess they didn't have to rule on DADT to decide the case, but wouldn't you expect some kind of comment on DADT if they thought it was unconstitutional?

[Michael Ejercito]

Nope. It's been upheld in federal court several times, but has not been taken up by SCOTUS.

Indeed, the Ninth Circuit itself upheld DADT. (Holmes v. Cal. Army Nat'l Guard, 124
F.3d 1126, 1136 (9th Cir. 1997), Philips v. Perry , 106 F.3d 1420, 1425-26 (9th Cir. 1997) (same);
Beller v. Middendorf , 632 F.2d 788, 805-12 (9th Cir. 1980).

In Witt v. Department of the Air Force , 527 F.3d 806, the Ninth Circuit rejected an equal protection claim against DADT and remanded the case to the district court to decide the due process claim using a heightened level of scrutiny.

[adam]

Wow, I can't really believe this opinion. I'm not sure how many military conduct rules could be upheld under this standard. Is there really any good reason for requiring short hair? Making soldiers march and line up in formation? Call their superiors sir? All these things infringe on soldier's freedom, some on things that are very personal (like grooming and dress). It's mostly tradition and about ordering the military, just like DADT, but we could do without it. The IDF for one is much more informal about things and gets along well enough.

[Hobo Chang Ba]

Discipline and biology are different. The SC never said that there could not be codes of conduct, as there are in any workplace. Don't Ask, Don't Tell would only be equal protections if there was a equivalent ban on talking about being straight, talking about how hot certain girls are, mentioning your wife to your colleagues, etc. amongst the ranks. Normal bans on hostile environment, sexual harassment, etc. should be enough. Nice try, though.

[Hobo Chang Ba]

Correction: not the SC, the judge...stupid stupid stupid....

[adam]

There's no equal protection claim here. The 9th Circuit threw that one out (see footnote 2 in the opinion). Nice try though.

They're going on substantive due process and first amendment, and applying heightened scrutiny. That is, the government has to show the statute (1) advances an important governmental interest, [2] the
intrusion must significantly further that interest, and [3] the intrusion must be necessary to further that interest." DADT doesn't ban being gay. It bans saying you're gay or acting on being gay. See pages 45 and 46 of the opinion where it quotes the statute. Those are clearly rules intended to promote discipline and cohesiveness in the armed forces, as recognized by the court. The court also recognizes these as important interests. But it says that this isn't necessary to further the interests. So, how can the government argue that short hair, calling superiors sir, etc. is necessary for discipline when there are examples abroad of armies that don't have such strict disciplinary rules but are still good armies (e.g. IDF)?

[Hobo Chang Ba]

There is no compelling argument for the law to limit the right of gays in the military to speak about anything peripheral to being gay, especially if there is no legal limit on being gay and in the military. The only way there would be a compelling argument is if there was a code of speech discipline where all soldiers must pretend to be asexuals all the time or risk getting removed from the military. Won't happen, because soldiers are human beings, so why expect gay soldiers alone to censor themselves? All soldiers are expected to follow uniform disciplinary rules regarding "sir" and haircuts. But different classes of soldiers have different sets of rules for talking about their families and personal life based upon their biological orientation.

Of course, "sir" and haircuts are arbitrary too. If they went away, I hesitate to see how they would damage morale beyond changing the culture of submission and conformity in the military.

[Spencer Smith]

This is great news to all gay people and lovers of liberty.

[DADIODADDY]

Yay homs

[franz kafka]

yawn

[R C Dean]

I'm particularly interested in the judge's conclusion that DADT has a deleterious effect on the military. How did Her Robeship reach that conclusion, exactly?

Also, what Fluffy said. Her conclusion that "the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell
Act is far broader than is reasonably necessary to protect the substantial
government interest at stake here."

I wonder: Did she also strike down the prohibition on homoisexuals serving in the military? If so, on what grounds?

What about the "don't ask" part protecting closeted homosexuals from investigation and dismissal? That was really a piece with the "don't tell" part - essentially, don't talk about it, and we won't investigate.

[Tonio]

Your impotent outrage is almost as sweet as Tony's tears, RC. Thanks for some truly sweet schadenfreude!

[Fatty Bolger]

I'm particularly interested in the judge's conclusion that DADT has a deleterious effect on the military. How did Her Robeship reach that conclusion, exactly?

Go read it, RC, it's in the ruling. You may not agree but the rationale is there.

[Xenocles]

I question the merits of the ruling (largely because I suspect that the same judge would uphold many other military restrictions that could be challenged on a similar principle), although DADT is an execreble policy that Congress should end.
I am more concerned with the inclusion of the judge's opinion that the policy is bad for the military. The judiciary really has no business making rulings on that basis; that concern is the realm of the Defense Department and addressing it is Congress's.

[Xenocles]

I question the merits of the ruling (largely because I suspect that the same judge would uphold many other military restrictions that could be challenged on a similar principle), although DADT is an execreble policy that Congress should end.
I am more concerned with the inclusion of the judge's opinion that the policy is bad for the military. The judiciary really has no business making rulings on that basis; that concern is the realm of the Defense Department and addressing it is Congress's.

[Xenocles]

Sorry about the double. First time on a mobile.

[Aresen]

I hope you were driving in heavy traffic at the time.

[R C Dean]

OK, I didn't read the whole 80-odd pages, but it looks to me like the Her Robeship struck down only the "don't tell" part of the policy, and left the "don't ask" part, and most importantly, the prohibition on gays in the military, intact.

Interesting, I suppose. What's most interesting, I think, is the rather slimy pattern of spinelessness shown by the administration. It doesn't have the guts to strike down policies that it doesn't, apparently, like, but is perfectly willing to wink-and-nod at federal courts striking them down by offering amateurish defenses when they are challenged.

[Michael Ejercito]

How does one reconcile this decision with Goldman v. Weinberger, 475 U.S. 503? Under Goldman, conduct that would normally be protected by due process and free exercise can be restricted in the military.

[adam]

Very good point. In that case, SCOTUS said the Air Force could ban a Jewish officer from wearing his yamulke in uniform, even though it was required by his religion, because Air Force officials said it was necessary for uniformity and discipline. SCOTUS said this even though it explicitly acknowledged that the government had no proof other than military officials say so ("He contends that the Air Force's assertion to the contrary is mere ipse dixit, with no support from actual experience or a scientific study in the record, and is contradicted by expert testimony that religious exceptions to AFR 35-10 are in fact desirable and will increase morale by making the Air Force a more humane place. But whether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment.")

This one will get overturned if it gets appealed before DADT gets repealed by Congress.

[adam]

Very good point. In that case, SCOTUS said the Air Force could ban a Jewish officer from wearing his yamulke in uniform, even though it was required by his religion, because Air Force officials said it was necessary for uniformity and discipline. SCOTUS said this even though it explicitly acknowledged that the government had no proof other than military officials say so ("He contends that the Air Force's assertion to the contrary is mere ipse dixit, with no support from actual experience or a scientific study in the record, and is contradicted by expert testimony that religious exceptions to AFR 35-10 are in fact desirable and will increase morale by making the Air Force a more humane place. But whether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment.")

This one will get overturned if it gets appealed before DADT gets repealed by Congress.

[Hobo Chang Ba]

In this case there is no uniformity of rules of conduct. Different soldiers have different speech regulations. Therefore it is a different case.

[Mike Laursen]

If this goes like some of the gay marriage comment threads we had a couple of weeks ago, somebody is going to hit you with this counter-argument:

All soldiers, gay or straight, are equally allowed to tell stories about how they totally nailed that hot chick that works at the Denny's near the base.

[Logfile]

Not the female, lesbian ones.