Don't Ask, Don't Tell fails Senate

[Just_A_Mom]

Quick Update.

Quick Update on the DADT court appeal:

LCR (Log Cabin Republicans) the Plaintiff has asked the US Supreme Court to vacate the stay that was granted by the US Court of appeals by the defendant.

LCR has asked the stay to be vacated until the appeal is heard by the 9th Circuit Court of Appeals.
Justice Kennedy handles emergency motions for the 9th Circuit and this has been directed to him to rule today. Justice Kennedy either can make the ruling himself or refer the request to the full court. Even though the request is an 'emergency' - he had no deadline for which to make a ruling.

If/when the ruling comes down from the Supreme Court - remember it only applies to the ruling to vacate the 2-1 decision by the 9th circuit to keep DADT in place until the appeal is heard.

 

[Christcorp]

DADT has been in place for 17 years. There is absolutely NO REASON in the world to change anything for the additional few weeks it's going to take to resolve this issue. This issue is already in the process. HAS been in the process. And has been SCHEDULED to be completed with a course of action to be decided in the weeks to come. For the 9th circuit to even be involved is ridiculous. To force a chance on the military, that they aren't prepared to handle; knowing damn well that the resolution IS being worked with 99% understanding that DADT WILL be rescinded legislatively (WHERE THE DECISION BELONGS), is the courts taking their power way too far.

The military has a legislative and executive branch to make military law and policies. The military has a judicial system to handle legal issues. They also have an appeals system in place; INCLUDING THE UNITED STATE SUPREME COURT; to hear conflicts and appeals. ALL of this is 100% constitutional, yet the 9th circuit feels they are suppose to be involved. The DADT doesn't bother me. Hopefully it will be rescinded soon. I just don't like states, and in this case the legislative/executive branch (Along with the military), being legislated by the judicial branch. That's not their job. The Supreme Court is already part of the military judicial system. it's that way for a reason. A Constitutional reason.

 

[goaliedad]

I am all ears too. What you stated, and I highlighted above, is the crux of the issue.

For me, the answer has been a combination of actions by my leadership team. It is comprised of both education and accountability. In my Department of the Army Job, I have educated my subordinates, both civilian and military, of what is expected of them. They also know exactly what consequences they will face if they fail to follow expectations. Part of that includes educating the mid level managers what I expect of them as well and holding them accountable as well. When I hear a Private speak in terms that they know is offensive, I address it with them first. But I also address it with their NCO’s and Junior Officers. Now in my current environment, I am seeing this issue in particular arise in the non-rate ranks and in my Junior Officer ranks (mainly 2nd and 1st LT’s). I am not having an issue in the civilian ranks at all. I feel that this is simply a matter of age. They are simply put, older. Bottom line, it takes a leadership team to break this cycle of unacceptable behavior.

Now I also teach. This is a real issue on our college campuses. It is also a lot harder to break this particular behavior. Why, because it is not something that can be addressed on a team level. Not everyone is on the same page. Some professors will hold their students accountable while others will not.

While it may seem to be a big task for the military to change this cultural issue, remember that it took many years for the racial attitudes and cultural references to work themselves out after Truman gave his order. I have every confidence that the military structure that has served to improve the character of young adults for decades will continue to do so with this new facet to its mission. We're going to have some squawking for a while at startup, but with firm leadership, the military will move forward at a pace it can sustain.

 

[Christcorp]

While it may seem to be a big task for the military to change this cultural issue, remember that it took many years for the racial attitudes and cultural references to work themselves out after Truman gave his order. I have every confidence that the military structure that has served to improve the character of young adults for decades will continue to do so with this new facet to its mission. We're going to have some squawking for a while at startup, but with firm leadership, the military will move forward at a pace it can sustain.

The problem is: The judicial branch of government isn't what abolished desegregation in the military. As you pointed out, it was an executive branch decision; backed by the legislative branch. "The way it's SUPPOSE to be". However, if the Judicial branch of government is allowed to legislate in this matter, the military MAY NOT BE ALLOWED to move forward at a pace it can sustain. They might be forced to proceed with an IMMEDIATE change. We have to get our congressmen to get the appeals and supreme court to define the role of the congress and the president in this matter, and tell the 9th circus court, that this is NOT in their jurisdiction.

 

[Just_A_Mom]

CC - I can't understand your anger toward the 9th Circuit. They inherited this case. They granted the Government (Plaintiff) a stay on the verdict.
They have not decided anything.

 

[temp]

DADT has been in place for 17 years. There is absolutely NO REASON in the world to change anything for the additional few weeks it's going to take to resolve this issue. This issue is already in the process. HAS been in the process. And has been SCHEDULED to be completed with a course of action to be decided in the weeks to come. For the 9th circuit to even be involved is ridiculous. To force a chance on the military, that they aren't prepared to handle; knowing damn well that the resolution IS being worked with 99% understanding that DADT WILL be rescinded legislatively (WHERE THE DECISION BELONGS), is the courts taking their power way too far.

There is NO guarantee that Congress WILL repeal DADT. None at all. There is much talk about some GOP members doing everything they can to block it. The guarantee is not there. Even with the survey leaks indicating that a repeal will not impact the services based on their results in terms of numbers of people opposed, they won't be able to act as long as the FEDERAL law is in place. They cannot repeal it, only the governmental branches can.

The military has a legislative and executive branch to make military law and policies. The military has a judicial system to handle legal issues. They also have an appeals system in place; INCLUDING THE UNITED STATE SUPREME COURT; to hear conflicts and appeals. ALL of this is 100% constitutional, yet the 9th circuit feels they are suppose to be involved.

They legally can, this IS within their jurisdiction. Again, the jurisdiction has not been the point of appeal, the policy and its merits are what are being considered, not jurisdiction.

The DADT doesn't bother me. Hopefully it will be rescinded soon. I just don't like states, and in this case the legislative/executive branch (Along with the military), being legislated by the judicial branch. That's not their job. The Supreme Court is already part of the military judicial system. it's that way for a reason. A Constitutional reason.

It is their job to review federal laws which segregate. This is not "legislating from the bench" as you keep saying. If the law was based on race or gender, I'm sure your attitude would change. This is another case of discrimination based on a trait which does not impact the capabilities of the individual and is in place to please a group who does not LIKE the discriminated group. A law based on a population's dislike of a minority but not based on a real ability to serve is not the same as handicaps or medical issues. A paraplegic can't serve because their condition makes service detrimental. LGB can't service because a number of non-LGB individuals don't like them!

While I digressed a bit on that rebuttal, Justice Kennedy is reviewing the stay. He's certainly on the Supreme Court. So yes, the law has, in a manner, reached the SC which you have identified, IYO, as part of the military legal chain of command. So, his decision will will be in accordance with even your personal view of the judicial CoC for the military. If he removes the stay, will you argue even though it was a SC decision?

The problem is: The judicial branch of government isn't what abolished desegregation in the military. As you pointed out, it was an executive branch decision; backed by the legislative branch. "The way it's SUPPOSE to be".

Wasn't the EO because the legislative branch DID NOT support desegregation! The legislature was ready to stone-wall it, but President Truman had the courage to do the right thing and repeal that discriminatory law since he could not rely on Congress to do the right thing. Congress did not back him. People, following your premises, would have said wait for Congress! I'm glad we didn't.

However, if the Judicial branch of government is allowed to legislate in this matter, the military MAY NOT BE ALLOWED to move forward at a pace it can sustain. They might be forced to proceed with an IMMEDIATE change. We have to get our congressmen to get the appeals and supreme court to define the role of the congress and the president in this matter, and tell the 9th circus court, that this is NOT in their jurisdiction.

Again, it IS their jurisdiction! Based on legal precedence in this country, they are within their rights as federal judges! You are wrong here. Wrong. The military might have to move their schedule up by a couple weeks. I don't think they will collapse, we've done more with less advance notice. Call their choice "legislating" if you will, but it's protecting the civil rights of a group that has been denied for illogical and absurd reasons.

A side-note to this discussion. The integration of LGB will not be like racial or gender integration. The members are already there. They have established their own reputations among units by their own work. If those that are LGB choose to come out within their unit, the response will be more complex that we think. Will it be rocky, in some cases, ya. But will Joe Gay's best buddy Bob suddenly hate Joe after 5 years of solid friendship. Will Commander Lesbian suddenly have her troops disregard her authority if she's already formed a reputation for fair and partial leadership. While some shocks will occur, these are people already well known in their chains. For the most part, I think people will quickly adjust because the person has already been there and earned the respect due based on their service, not their orientation. New recruits will enter basic with LGB peers and will grow in the system with LGB which will allow the lower ranks to populate more and more with people used to the new order. It's not like gender and racial where the people entered at the bottom and the ranks had to adjust. The LGB are already in the system, in sizable numbers, and those that DO come out, will act as ambassadors in a sense (good and bad) for the military LGB.

This is a long winded way of saying - the people are there and their orientation will likely have little impact on the perceptions of those around them except for those with biases against LGB. Now who should be punished for those biases, the "victim" or the propagator? I certainly hope no one would say the victim.

As tpg admirably said, the commander's and the command environment will play a huge part in ensuring the process is smooth. I have faith they and their NCOs will provide the best transition possible and we will look back wondering why so many fought the transition for whatever reason, personal bias or personal belief about the method of repeal.

 

[Luigi59]

Again, it IS their jurisdiction! Based on legal precedence in this country, they are within their rights as federal judges! You are wrong here. Wrong.

Yes, for some odd reason ChristCorp keeps going back to the same (wrong) argument that the Judicial Branch has no say in deciding the legality of laws passed by Congress and signed by the President. (Yes, even the ones passed for the military).

Excellent response, btw.

 

[Just_A_Mom]

^
Yep. Wondering if he should go back to Government 101.

Temp - excellent, you have more patience than I. Thanks for the post!!

 

[Christcorp]

Assuming for a second that I agreed with your premise of judicial jurisdiction; which I don't; then the case, ruling, and appeal should have gone to the "U.S. Court of Appeals for the Federal Circuit". The 9th circuit court, and appeals court, shouldn't have even been involved. Matter of fact, one of the direct subject matters that the "FEDERAL CIRCUIT" court of appeals hears, are appeals for veterans claims. Equally in line, would be the U.S. Court of Military Appeals. A large number of congressmen and the president even specifically said that the matter should be handled in washington D.C. The only reason they backed off the jurisdiction issue at all, is because the 9th circuit court of appeals granted the government a stay on the lower court order.

Again, many of you are all hell bent on the "Don't Ask Don't Tell" subject matter, that you remain blind to the legal impact of these decisions. There are 2 main types of courts. Article III courts, and Article I courts. The District courts, like the 9th district, are article III courts. They derive their jurisdiction based on article III of the constitution. The article I courts are also established by congress. These courts are (1) magistrate courts, (2) bankruptcy courts, (3) the U.S. Court of Military Appeals, (4) the U.S. Tax Court, and (5) the U.S. Court of Veterans' Appeals. This is where this case should be handled. The district courts specifically handle districts and state jurisdictions. The military is federal, not a finite district. Such a case shouldn't even be reviewed at this level. The U.S. Court of military appeals, specifically deals with cases arising under the Uniform Code of Military Justice. And DADT definitely is enforced via the UCMJ. Many want to coin DADT as a federal law; but it isn't characterized as such in the law. It applies solely by the military. Civilian companies don't follow a DADT federal law. This is unique to the military, and should be handled accordingly.

And don't tell me that if the subject was about sex or race that my "Attitude would change". That's a crock of shiite. My attitude would be exactly the same as it is now. And please stop saying that "Gays are forbidden to serve in the military". That gays are being discriminated against serving. NO THEY ARE NOT. They are forbidden to talk openly about being gay, but they aren't forbidden from serving. YOU might think it's the same thing, but from a legal stand point, it is 2 totally different things.

I hope this gets resolved soon. So the emotional opinions will stop. This should be handled in the military judicial system; the Federal Circuit court/Court of Appeals for the Federal Circuit; and/or the Supreme Court. Would a person in Florida with a Claim, go to the 10th Circuit Court in Denver? Well, this case should have been referred to the court of appeals for the Federal Circuit. Anyway; I think I've had enough of this thread. I'll let you government 101 students and your cliffsnotes go back to discussing this among yourselves.

 

[TheKnight]

Assuming for a second that I agreed with your premise of judicial jurisdiction; which I don't; then the case, ruling, and appeal should have gone to the "U.S. Court of Appeals for the Federal Circuit". The 9th circuit court, and appeals court, shouldn't have even been involved. Matter of fact, one of the direct subject matters that the "FEDERAL CIRCUIT" court of appeals hears, are appeals for veterans claims. Equally in line, would be the U.S. Court of Military Appeals. A large number of congressmen and the president even specifically said that the matter should be handled in washington D.C. The only reason they backed off the jurisdiction issue at all, is because the 9th circuit court of appeals granted the government a stay on the lower court order.

Again, many of you are all hell bent on the "Don't Ask Don't Tell" subject matter, that you remain blind to the legal impact of these decisions. There are 2 main types of courts. Article III courts, and Article I courts. The District courts, like the 9th district, are article III courts. They derive their jurisdiction based on article III of the constitution. The article I courts are also established by congress. These courts are (1) magistrate courts, (2) bankruptcy courts, (3) the U.S. Court of Military Appeals, (4) the U.S. Tax Court, and (5) the U.S. Court of Veterans' Appeals. This is where this case should be handled. The district courts specifically handle districts and state jurisdictions. The military is federal, not a finite district. Such a case shouldn't even be reviewed at this level. The U.S. Court of military appeals, specifically deals with cases arising under the Uniform Code of Military Justice. And DADT definitely is enforced via the UCMJ. Many want to coin DADT as a federal law; but it isn't characterized as such in the law. It applies solely by the military. Civilian companies don't follow a DADT federal law. This is unique to the military, and should be handled accordingly.

And don't tell me that if the subject was about sex or race that my "Attitude would change". That's a crock of shiite. My attitude would be exactly the same as it is now. And please stop saying that "Gays are forbidden to serve in the military". That gays are being discriminated against serving. NO THEY ARE NOT. They are forbidden to talk openly about being gay, but they aren't forbidden from serving. YOU might think it's the same thing, but from a legal stand point, it is 2 totally different things.

I hope this gets resolved soon. So the emotional opinions will stop. This should be handled in the military judicial system; the Federal Circuit court/Court of Appeals for the Federal Circuit; and/or the Supreme Court. Would a person in Florida with a Claim, go to the 10th Circuit Court in Denver? Well, this case should have been referred to the court of appeals for the Federal Circuit. Anyway; I think I've had enough of this thread. I'll let you government 101 students and your cliffsnotes go back to discussing this among yourselves.

What you are saying is true in terms of military matters with military members. If you're in the military and a civilian sues you, then the case goes through the regular court system. The case of the Log Cabin Republicans, on which Judge Phillips ruled, was a case in which a civilian was suing the government. That is handled by, and only by, the federal courts (of which Judge Phillips was one).

I agree with you that DADT should be handled legislatively. However, that doesn't mean that if a judge gets a case in which a civilian was affected by the law (discharged service-member), the judge shouldn't rule on it.

She had a specific case and ruled on that case as is her job and jurisdictions.

The reason this case did not go to the Court of Veterans Appeals is because that Court is for appealing a ruling. The LCR case was one that brought the constitutionality of a law into question. That sort of case is handled by the federal courts.

Just because the military is a part in a case doesn't mean the case is automatically relegated to military courts only. The subject matter of the case is important as well.

 

[temp]

There are 2 main types of courts. Article III courts, and Article I courts. The District courts, like the 9th district, are article III courts. They derive their jurisdiction based on article III of the constitution. The article I courts are also established by congress. These courts are (1) magistrate courts, (2) bankruptcy courts, (3) the U.S. Court of Military Appeals, (4) the U.S. Tax Court, and (5) the U.S. Court of Veterans' Appeals. This is where this case should be handled. The district courts specifically handle districts and state jurisdictions. The military is federal, not a finite district. Such a case shouldn't even be reviewed at this level. The U.S. Court of military appeals, specifically deals with cases arising under the Uniform Code of Military Justice. And DADT definitely is enforced via the UCMJ. Many want to coin DADT as a federal law; but it isn't characterized as such in the law. It applies solely by the military. Civilian companies don't follow a DADT federal law. This is unique to the military, and should be handled accordingly.

You've identified everything correctly except the actual law.

1. Magistrate judges: These judges handle certain criminal and civil matters, often with the consent of the parties.
2. Bankruptcy courts: These courts handle cases arising under the Bankruptcy Code.
3. U.S. Court of Military Appeals: This court is the final appellate court for cases arising under the Uniform Code of Military Justice.
4. U.S. Tax Court: This court handles cases arising over alleged tax deficiencies.
5. U.S. Court of Veterans' Appeals: This court handles certain cases arising from the denial of veterans' benefits.

The UCMJ is Title 10, Subpart A, Section II, Chapter 47. This is what the chain you are referring to regards with the U.S. Court of Military Appeals.
The actual law "Policy regarding homosexuals...." is in Chapter 37. This chapter is subject to the standard 94 federal courts. Jurisdiction for a civilian federal court to challenge it is still correct.

And don't tell me that if the subject was about sex or race that my "Attitude would change". That's a crock of shiite. My attitude would be exactly the same as it is now.

Wait, you would not have an issue with prohibiting blacks, Asians, whites, etc. from serving?

And please stop saying that "Gays are forbidden to serve in the military".

I can't find where I've said this. But, if someone else has, let's say it was a mistake in speech.

That gays are being discriminated against serving. NO THEY ARE NOT. They are forbidden to talk openly about being gay, but they aren't forbidden from serving. YOU might think it's the same thing, but from a legal stand point, it is 2 totally different things.

Sure, legally it is. Reality, the effect is the same as a flat out ban. They were there before and after the DADT law. It didn't change anything.

I hope this gets resolved soon. So the emotional opinions will stop.

Me too!

This should be handled in the military judicial system; the Federal Circuit court/Court of Appeals for the Federal Circuit; and/or the Supreme Court. Would a person in Florida with a Claim, go to the 10th Circuit Court in Denver? Well, this case should have been referred to the court of appeals for the Federal Circuit.

Rebutted above.

Anyway; I think I've had enough of this thread. I'll let you government 101 students and your cliffsnotes go back to discussing this among yourselves.

A) Ad hominid attacks don't support logical conclusions well.
B) I'm not a JD. You're not a JD. I haven't seen a JD on here comment. While I know the govt 101 comment was used on you, accusing me or anyone else for the "cliffsnotes" version of law is no better than calling the kettle black. You are about as knowledgeable on the topic as any of us, I don't appreciate this insult.
C) See you later!

 

[Christcorp]

My responses are not one on one. If only 2 of us were discussing the issue, it would be. But in between posts, there's at least 3 other people. I responded to comments in general. Pick out the ones that you think refer to you if you like. Personally, I'm tired of discussing law. My wife and her law firm are tired of me asking questions about the DADT policy. The point is: At the time, the congress and president, have not challenged any jurisdiction issues, because an appellant court has ruled in their favor for a stay. We'll just have to see where things end up after that.

 

[temp]

Yes we shall. Perhaps the Senate will get their act together and pass it already. But they may use the court action as an excuse, internally, to ignore it and make the courts decide so they don't have to take responsibility.

 

[Pima]

I wish I could say I doubt that, but I actually could see it happen so they can save their own political hide. If the courts decide they will never have to argue why they were for or against in any campaign.

 

[Christcorp]

Yes we shall. Perhaps the Senate will get their act together and pass it already. But they may use the court action as an excuse, internally, to ignore it and make the courts decide so they don't have to take responsibility.

Now that is something we can agree on. Sorry for those I am about to pee off, but I have little confidence in our current president or the current congress. I am glad that last tuesday showed the American people also upset. Unfortunately, this lame duck congress will probably sit on this issue. They haven't done crap for the last 2-4 years; there's no reason to believe they will do anything in the next couple months.

 

[temp]

Now that is something we can agree on. Sorry for those I am about to pee off, but I have little confidence in our current president or the current congress. I am glad that last tuesday showed the American people also upset. Unfortunately, this lame duck congress will probably sit on this issue. They haven't done crap for the last 2-4 years; there's no reason to believe they will do anything in the next couple months.

Agreed. No one has the guts to do the right thing. The president could end the whole debate with a single signature on an EO. Won't do it though.

 

[aglages]

No one has the guts to do the right thing.

Change you can believe in.

 

[temp]

Change you can believe in.

Never believed it for a second.

 

[Just_A_Mom]

**Update**

The Pentagon will release the DADT report one day early per Sec Gates.
Sec Gates is hopeful the Senate Armed Services Committee will hold hearings that week and it can go before the Senate for a vote prior to the Christmas Holiday break.

http://www.armytimes.com/news/2010/11/ap-dont-ask-dont-tell-ban-pentagon-112210/

 

[Mongo]

http://www.armytimes.com/news/2010/11/military-survey-most-troops-say-gays-no-problem-112910/

It looks as if, for 85% of the military, if DADT is repealed, it will continue to be business as usual:

And the report estimates that only about 15 percent of gays currently serving in the military would want to reveal their sexual orientation to everyone in their unit.