Judge to military: Stop discharging gays under 'don't ask, don't tell'

[Perseus]

Source, mes amis. (http://www.msnbc.msn.com/id/39637073/ns/us_news-life)

A federal judge Tuesday ordered the government to stop banning openly gay men and women from serving in the military under the "don't ask, don't tell" policy.

U.S. District Judge Virginia Phillips found the policy unconstitutional in September. On Tuesday, she rejected an Obama administration request to delay an injunction and ordered enforcement of the 17-year-old policy permanently stopped.

The decision was cheered by gay rights organizations that credited her with getting accomplished what President Barack Obama and Washington politics could not.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans.
He was the sole named veteran plaintiff in the case along with the Log Cabin Republicans, a gay rights organization that filed the lawsuit in 2004 to stop the ban's enforcement.

The Justice Department has 60 days to appeal. Legal experts say the government is under no legal obligation to do so and they could let Phillips' ruling stand.

A Perntagon official suggested the military may in fact halt all attempts to enforce the policy for the forseeable future. The official told NBC News: "It's important to point out that today's federal court order comes less than two months (Dec. 1) before the Pentagon is to provide Secretary of Defense Robert Gates with a plan on how, not if, but how to implement the repeal of

'Dont Ask Dont Tell' in the military."

Pentagon officials could not provide the number of DADT cases already pending.

"Don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but bans those who are gay from serving openly. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

Legal experts say government attorneys are not likely to let the ruling stand since Obama has made it clear he wants Congress to repeal the policy.

"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here,' " said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.
She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Phillips declared the law unconstitutional after listening to the testimony of discharged service members during a two-week nonjury trial this summer in federal court in Riverside.
She said the Log Cabin Republicans "established at trial that the Don't Ask,
Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

Gay rights advocates have worried they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill last month because of a "don't ask, don't tell" repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult — if not impossible — next year.
The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.

"The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country," said Dan Woods, an attorney for the Log Cabin group.

The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

[Amnesiac]

In a word: good.

But it should still be repealed fully.

[Sith Lord 13]

In a word: Deadly.

Civilians have no place in trying to change military policy. This should have been done only with the full support of the military command and DoD. I find it highly irresponsible to value one man's right to brag about his sexual conquests over another's right to live. Honestly, I believe DADT should be expanded to cover religion, politics, etc, as anything that spreads dissension among the armed forces is a bad thing. Uniformity is key to survival in a war zone.

[Amnesiac]

In a word: Deadly.

Civilians have no place in trying to change military policy. This should have been done only with the full support of the military command and DoD. I find it highly irresponsible to value one man's right to brag about his sexual conquests over another's right to live. Honestly, I believe DADT should be expanded to cover religion, politics, etc, as anything that spreads dissension among the armed forces is a bad thing. Uniformity is key to survival in a war zone.

I agree, there's no room for advertising one's personality in the military. I have to especially agree on religion, since there's been reported incidents of discrimination against atheists before.

However, which do we hold more highly? Military law, or the Constitution, the "supreme law of the land"? I wouldn't go as far as calling it deadly.

[Sith Lord 13]

However, which do we hold more highly? Military law, or the Constitution, the "supreme law of the land"? I wouldn't go as far as calling it deadly.

It's about the appropriate interpretation of Constitutional law by military judges.

[Amnesiac]

It's about the appropriate interpretation of Constitutional law by military judges.

However, if a lawsuit is filed in federal court concerning the law, isn't it the duty of the judge to interpret the Constitution and make a decision concerning the enforceability of that law?

[Sith Lord 13]

However, if a lawsuit is filed in federal court concerning the law, isn't it the duty of the judge to interpret the Constitution and make a decision concerning the enforceability of that law?

A civilian judge can't properly apply the law to a military situation.

[Amnesiac]

A civilian judge can't properly apply the law to a military situation.

Maybe he's not the most qualified to make a decision, true, but it's still his duty as a federal judge to make a decision based on the arguments before him.

[Sith Lord 13]

Maybe he's not the most qualified to make a decision, true, but it's still his duty as a federal judge to make a decision based on the arguments before him.

He's not just not the most qualified, he's not qualified.

[Amnesiac]

He's not just not the most qualified, he's not qualified.

Okay, he's not qualified, but it's his job. Such is the judicial branch of government.

[PJay]

A judge not qualified to weigh evidence and make decisions? I doubt this was done without taking any military advice at all.
That bit about uniformity sounds like a tired line from a bad movie. It isn't an issue for British soldiers (http://www.pinknews.co.uk/2010/09/29/british-army-claims-having-openly-gay-soliders-hasincreased-productivity/), and it looks like seniour and very qualified guys in the US miltary would agree with this judge (http://www.pinknews.co.uk/2010/03/17/general-petraeus-supports-review-of-dont-ask-dont-tell/)there, as does your ex secraty of state (http://www.pinknews.co.uk/2010/02/04/colin-powell-says-dont-ask-dont-tell-should-be-repealed/) who is changing his mind because he feels enough senior military disagree with the policy.

[Amnesiac]

A judge not qualified to weigh evidence and make decisions? I doubt this was done without taking any military advice at all.
That bit about uniformity sounds like a tired line from a bad movie. It isn't an issue for British soldiers (http://www.pinknews.co.uk/2010/09/29/british-army-claims-having-openly-gay-soliders-hasincreased-productivity/), and it looks like seniour and very qualified guys in the US miltary would agree with this judge (http://www.pinknews.co.uk/2010/03/17/general-petraeus-supports-review-of-dont-ask-dont-tell/)there, as does your ex secraty of state (http://www.pinknews.co.uk/2010/02/04/colin-powell-says-dont-ask-dont-tell-should-be-repealed/) who is changing his mind because he feels enough senior military disagree with the policy.

That's what I was saying — while the judge may not be the most qualified person to make the decision, it's still his duty as a federal judge to come to a conclusion based on the evidence. I highly doubt, in a case as high-profile as this one, that the judge ignored military opinion on the issue.

[Sith Lord 13]

That's what I was saying — while the judge may not be the most qualified person to make the decision, it's still his duty as a federal judge to come to a conclusion based on the evidence. I highly doubt, in a case as high-profile as this one, that the judge ignored military opinion on the issue.

What's this? The possibility of a judge making a personal political statement with their ruling? IMPOSSIBLE!

The fact is, as you see the military higher ups considering it, it's not about keeping gays out, it's about keeping troops alive.

Also, a note on your sources: The one which referred to "seniour [sic] and very qualified guys" is misleadingly labeled. It mentions one senior officer who supports a review of it's feasibility, he did not actually support it. Also, Great Britain is a very different country than the US, with different prevalent attitudes. I doubt it affected unit cohesion there nearly as much as it will here. As for Colin Powell, he says he supports following the recommendations of "chiefs and commanders". If that really is the beliefs of most military personal, I'd support it too. However, based on my personal contacts in the military (including recruits, enlisted men, and veterans), I'd wager he's been victim of a reporting bias. It seems the vast majority of enlisted personnel are in favor of DADT and do believe it will cost lives.

[PJay]

Ok, I'm relieved to hear you are open minded on this issue after all ;)



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[Perseus]

In a word: Deadly.

Civilians have no place in trying to change military policy. This should have been done only with the full support of the military command and DoD. I find it highly irresponsible to value one man's right to brag about his sexual conquests over another's right to live. Honestly, I believe DADT should be expanded to cover religion, politics, etc, as anything that spreads dissension among the armed forces is a bad thing. Uniformity is key to survival in a war zone.

This is discrimination. How does not fear being sent out of the military for being gay deadly? People don't flaunt their sexual conquests all the time, especially why they are being shot at? How is equality deadly? I mean really. Gays have every eight to say who they are in a job; that's what the military is: a job. They shouldn't be denied the right to fire at the enemy of the state because they like the same sex. Straight guys brag about their sexual conquests than gays do. I've never met a gay who brags about it.

[PJay]

I think the argument is that it leads to bad feeling and bullying

I think that if that is a possibility there is already something wrong with 'unit cohesion'. If you can cope with mixed race and sex and religion then why not sexuality? Like I said, we do in the UK.


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[Amnesiac]

What's this? The possibility of a judge making a personal political statement with their ruling? IMPOSSIBLE!

The fact is, as you see the military higher ups considering it, it's not about keeping gays out, it's about keeping troops alive.

I was addressing your statements where you implied that the judge shouldn't have made a decision on the case. It's his job to make a decision, like it or not he did. Now it's up to the military and Congress to come up with an alternative decision. I don't think that in the period of time until they pass a new policy that we'll see any increased danger to members of the military.

[peaceloverugby]

Alex, how would openly gay, lesbian, and bisexual troops endanger the lives of straight troops? Most of our allies in the so-called "War on Terror" allow LGB people to serve openly, without any adverse consequences. Are you claiming that by allowing openly homo/bi-sexual servicemembers, we would see a rise in casualties? If so, please explain how. If not, please explain what exactly it is you are claiming.

[Sith Lord 13]

Are you claiming that by allowing openly homo/bi-sexual servicemembers, we would see a rise in casualties? If so, please explain how.

AS sad as I am to admit it, I honestly believe it is. I'd love to see the day when this wouldn't cause an issue, but, unfortunately, with the current state of US culture, it would. I believe that at some point in the not too distant future, this won't be the case anymore but for right now, I believe unit cohesion would suffer and more lives would be lost. In the military, your trained to make the man next to you your brother. ANYTHING that detracts from that costs lives. As I've mentioned elsewhere, I feel DADT should be expanded to all things that are a threat to unit cohesion.

[Syvelocin]

AS sad as I am to admit it, I honestly believe it is. I'd love to see the day when this wouldn't cause an issue, but, unfortunately, with the current state of US culture, it would. I believe that at some point in the not too distant future, this won't be the case anymore but for right now, I believe unit cohesion would suffer and more lives would be lost. In the military, your trained to make the man next to you your brother. ANYTHING that detracts from that costs lives. As I've mentioned elsewhere, I feel DADT should be expanded to all things that are a threat to unit cohesion.

While I've always been against this sort of thing, I feel that Alex made a valid point there, actually. I'm shocked that I'm agreeing, but I am.

I don't think gays should be banned, but if they were to tell, that does conflict with this point. Yet there isn't a sure-fire way to keep people from telling. And now I'm confused on my standing. O.o

Well, what I can say is that I don't like the part where they can be discharged for what they do at home with their personal lives. That doesn't seem fair to me. Anything they do while directly serving the military, I could see discharging them for that specific reason. But if they were to be seen with their partner outside of war, I don't think that gives them any reason to not serve their country.

[Sith Lord 13]

While I've always been against this sort of thing, I feel that Alex made a valid point there, actually. I'm shocked that I'm agreeing, but I am.

I wanna say thanks here. I know a lot of what I've said in the past few days makes me sound anti-gay or anti-gay rights. This isn't true. (If you don't believe me ask my boyfriend.) Rather, I believe that nothing is more important than the health and safety of our troops overseas. If a soldier not telling his squad mates he's gay will save lives, then I don't believe he has the right to do it. I can't wait for the day when this is no longer the case, and I believe it will happen in our lifetimes, but I think a civilian judge trying to force the issue is doing more harm than good.

[peaceloverugby]

First of all, in reference to your "universally DADT" theory, total discrimination doesn't change the fact that it is discrimination.

But let's take a closer look at that statement. You say there should be a DADT-isque policy for "anything" that might be a threat to unit cohesion. Now, as you may very well know, this country is still struggling with issues about race and ethnicity. Say you have a black soldier, and another man in his unit is utterly racist against the African race. That would be a threat to unit cohesion, yet we cannot ask the black soldier to not tell anyone about his race.

Now let's apply this to the situation at hand, that being sexual orientation. While it may be much, much easier for a gay man to hide the fact that he is gay than it would be for a black man to hide the fact that he is black, it's still not right. The military is, essentially, requiring these servicemembers to lie to their comrades. Now, which is a greater threat to unit cohesion: dishonesty, or guys kissing guys? Let's be honest here, the vast majority of our men and women in uniform are mature enough to handle homosexuality.

By forcing LGBT troops to stay in the closet, the DoD is depriving them of the First Amendment right to free speech they risk their lives to protect. By discharging them summarily, the DoD denies them due process under the law. And finally, by discharging them based solely on the fact that they are suspected of being homosexual, which mind you (thank God) is not illegal, the DoD deprives these brave men and women of equal protection under the law.

[Sith Lord 13]

First of all, in reference to your "universally DADT" theory, total discrimination doesn't change the fact that it is discrimination.

Actually it does. Discrimination is when:

the treatment taken toward or against an individual of a certain group in consideration based solely on class or category


By forcing LGBT troops to stay in the closet, the DoD is depriving them of the First Amendment right to free speech they risk their lives to protect. By discharging them summarily, the DoD denies them due process under the law. And finally, by discharging them based solely on the fact that they are suspected of being homosexual, which mind you (thank God) is not illegal, the DoD deprives these brave men and women of equal protection under the law.

So to sum up your argument: The right to discuss one's sexual orientation is more important than the right to life. I for one have to say I disagree with your priorities. All rights have limitations. For example, I freely have the right to move my arm in any manner I so choose. I do not, however, have the right to punch another person. Just like a soldier does not have the first amendment right to announce their location if they're in an insecure locations, a soldier does not have the right to endanger themselves and their fellow soldiers by spreading strife and discord. If they're not being awarded due process, (can we get a source please, I did a cursory Google search, can't find what happens between an allegation being brought forward and the dismissal) that's a problem with implementation, not policy. They are being awarded equal protection under the law, it's not the fact that they're gay, it's the fact that parading the fact in front of the people they work with could lead to people getting killed. Any soldier who does anything deemed detrimental to "good order and discipline" can be discharged, under article 127.

[peaceloverugby]

So to sum up your argument: The right to discuss one's sexual orientation is more important than the right to life.

You have yet to prove how this is true at all. There is not a correlation between openly gay servicemembers and increased casualties, it's as simple as that. Now onto the rest...


Just like a soldier does not have the first amendment right to announce their location if they're in an insecure locations, a soldier does not have the right to endanger themselves and their fellow soldiers by spreading strife and discord. ... They are being awarded equal protection under the law, it's not the fact that they're gay, it's the fact that parading the fact in front of the people they work with could lead to people getting killed. Any soldier who does anything deemed detrimental to "good order and discipline" can be discharged, under article 127.

Again, I'd like to see evidence of this. Go find a study that says countries who allowed openly gay servicemembers saw an increase in casualties, and I will believe you. Until then, I really see no end to this.

[Syvelocin]

Again, I'd like to see evidence of this. Go find a study that says countries who allowed openly gay servicemembers saw an increase in casualties, and I will believe you. Until then, I really see no end to this.

I think it's just sense actually. Regardless of there being a study. When soldiers need to trust one another, let's say one man and another man fighting in a war. But what if one man is openly gay, and the other is a homophobe who doesn't think gays are human. Therefore, he's not going to trust him, maybe even purposefully let his hate get to him and not treat his fellow soldier as a brother, as a valuable human being. You could lose the homosexual man, and even the discriminating one if his hate gets to him.

Men and women serving the war SHOULD be mature enough to handle it, yes. But, some aren't, and probably won't be for a very long time.

[PJay]

If that can happen, the same guy could be a racist or sexist. Or just pissed off cos he lost the card game. There is already an issue there with it without DADT.

Your sense is obviously not the same as mine. Let's see some facts and sources. I gave you some (even though they got dissed) so fairs fair :)


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[Whisper]

http://www.cnn.com/2010/US/10/14/military.gay/index.html?hpt=T2

its okay Obama won't let this stand
lol

[peaceloverugby]

I think it's just sense actually. Regardless of there being a study. When soldiers need to trust one another, let's say one man and another man fighting in a war. But what if one man is openly gay, and the other is a homophobe who doesn't think gays are human. Therefore, he's not going to trust him, maybe even purposefully let his hate get to him and not treat his fellow soldier as a brother, as a valuable human being. You could lose the homosexual man, and even the discriminating one if his hate gets to him.

Men and women serving the war SHOULD be mature enough to handle it, yes. But, some aren't, and probably won't be for a very long time.

Well given that "sense" we could make an equally justifiable argument for not allowing homophobes from serving the military. Or racist or sexists, as Paul says.

With regards to Kodie's article, I think it's ridiculous that Obama says he supports getting rid of DADT, but he's going to have the Justice Department appeal the decision. It's nonsensical, and I'm going to laugh when the Gay, Inc. apologists for Obama over at the HRC try to justify this one.

[Sith Lord 13]

Well given that "sense" we could make an equally justifiable argument for not allowing homophobes from serving the military. Or racist or sexists, as Paul says.

The issue is not conscious homophobia. It's not the handful of servicemen who are gonna get up in the middle of the night and kill a fellow soldier on the basis of their orientation. If it were just them, we could handle it by dealing with the homophobes. The issue is that all humans are naturally uneasy around the unfamiliar and different. That small degree of hesitation by that one added factor is easily the difference between coming home alive and coming home in a body bag.

[PJay]

The issue is that all humans are naturally uneasy around the unfamiliar and different. That small degree of hesitation by that one added factor is easily the difference between coming home alive and coming home in a body bag.

More than the other differences they might know about? Whose to say the suspicon of someone being gay isn't worse? I could just as easily believe there are probs caused by that right now when it is not even true.
So is this something you've got facts and sources for?




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[Sith Lord 13]

More than the other differences they might know about? Whose to say the suspicon of someone being gay isn't worse? I could just as easily believe there are probs caused by that right now when it is not even true.
So is this something you've got facts and sources for?




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Common sense and logic. You want to design and commission an experiment to test this, be my guest. Until such time, we're stuck in the realm of deductive reasoning.

[PJay]

Sense is not so common, and logic is an organised way of going wrong with confidence. (Nicked from a book I read :) )
You are making claims that have no proof, and using this to argue for military policy. To quote you earlier, "deadly".



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[Sith Lord 13]

Sense is not so common, and logic is an organised way of going wrong with confidence. (Nicked from a book I read :) )

You throw out logic, might as well go back to the stone age. I've yet to see a logical counter argument I have refuted. Like I said, you want to, you find a way to design and commission an experiment. Until then, stick to what we have.

[PJay]

You are telling me there us insufficient data to make my deduction even though I have given some articles that suggest it is viable, and without any data of your own you want me to rely just on your logic. I don't think so.



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[Sith Lord 13]

You are telling me there us insufficient data to make my deduction even though I have given some articles that suggest it is viable, and without any data of your own you want me to rely just on your logic. I don't think so.

Each and every one of which I responded to and discredited, as one is not US based and as such is immaterial (it's a question of social attitudes, Great Britain is very different from the US in some ways), one was misleading, as instead of many (as you labeled it) it was one, who supported a review, which I would not be opposed to, as opposed to changing the policy, and one was a statement by a former military official which my contacts inside the military say has clearly fallen out of touch, as he says he supports it because support is coming from the soldiers, when a majority of soldiers say they are not for changing the policy.

[PJay]

It wouldn't surprise me that attitudes are different, but you will understand my point that its not convincing to quote mysterious sources in the military :)
I don't claim those articles are conclusive but I also think there is more to them than you do.
Hopefully the US will make the right call based on decent research. Otherwise you have lost a number of key personnel especially translators which is one example where ppl think DADT is hurting not helping.





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[peaceloverugby]

The issue is not conscious homophobia.

If you read Ms. Rith's post, which I kindly quoted in my post, you would see that she talks about conscious homophobia. Since my comments were in regards to her post, the issue was indeed conscious homophobia.

Also, something I've been meaning to ask, just for clarification, not debate. Are you claiming that gay soldiers would be the ones coming home in body bags, or straights? Or do you think casualties as a whole would increase, regardless of sexuality, if LGBT servicemembers were allowed to be open?

[Sith Lord 13]

If you read Ms. Rith's post, which I kindly quoted in my post, you would see that she talks about conscious homophobia. Since my comments were in regards to her post, the issue was indeed conscious homophobia.

OK, I was trying to keep the perspective of the issue as whole.

Also, something I've been meaning to ask, just for clarification, not debate. Are you claiming that gay soldiers would be the ones coming home in body bags, or straights? Or do you think casualties as a whole would increase, regardless of sexuality, if LGBT servicemembers were allowed to be open?

I believe casualties would increase across the board. Any extra variable costs lives, and can be a contributing factor to an entire squad getting wiped out.

[peaceloverugby]

I believe casualties would increase across the board. Any extra variable costs lives, and can be a contributing factor to an entire squad getting wiped out.

How? I think it might make more sense to me if you gave me a hypothetical situation, if that's not too much trouble.