Don't Ask, Don't Tell fails Senate

[Christcorp]

Christcorp - can you please link to all the Federal Judges who have ruled for DADT since it's implementation in 1996?
I am curious to read about these rulings.

LITS pretty well responded the way I would have. But NO, I won't. If you disagree, then you go find me all the Federal Judges that agree with this judge. And while you're at it, find where the federal judges found that it was unconstitutional for military members to not have the same right to free speech, or to form a union, or to quit their job and walk out, or simply call in sick and not show up, etc... There is a big difference between the rights for those in the military and the civilian world.

And this doesn't even include the fact that the Bill of Rights is not a list of rights for the individuals, but rather limitations on the federal government so as to not infringe on the citizen's rights to Life, Liberty, and the Pursuit of happiness. But when an individual enters military service, they voluntarily allow certain rights to be infringed on. That is allowed in the constitution for congress and the president to maintain discipline and order.

 

[LineInTheSand]

.

And this doesn't even include the fact that the Bill of Rights is not a list of rights for the individuals, but rather limitations on the federal government so as to not infringe on the citizen's rights to Life, Liberty, and the Pursuit of happiness.

A simple fact many people forget. When I say "shut up" I'm not violating someone's freedom of speech.

 

[Just_A_Mom]

Are you asking how many DADT cases resulting in the service member NOT being reinstated in the military after they "come out?"

Um....is that the road you're going down?

Not at all. I asked how many judges had ruled. A judge won't rule without a case being brought before them. Even then they may not take the case. Just because you file a lawsuit doesn't mean your specific case has merit or will even be heard.
CC stated that Obviously, there's a LOT of other judges that don't necessarily agree with here.
Unless a judge had ruled then they could not have possibly agreed or disagreed with this judge.
I was wondering how he had arrived at this conclusion. It was a simple question for him to back up his comment.


CC - I don't know of any other rulings. Margaret Witt won her case.
This particular lawsuit was actually filed back in 2004 and had languished in the court system. It finally landed on the Judge's desk in 2008 and she agreed to hear the case denying a motion by the Govt to dismiss the case.

If you disagree, then you go find me all the Federal Judges that agree with this judge.

I am not gonna play this sandbox game. Obviously, you don't know of any judges who disagree with her - aka; you made up your claim.

 

[LineInTheSand]

JAM it sounds like you think these are the first cases....now....that's wrong, very wrong.

Are you suggesting in the 14 years of DADT.... this 2010 decision is the FIRST and ONLY? Please, please, please tell me that's not what you're suggesting, and you just don't want to take the time to find support for the other side.

I can't blame CC for not doing a search, what you (JAM) said is just, flat out, wrong. This is the first time a DADT case has been held, it's been held many times, and because it's a military issue, most, if not all, are federal.

 

[Pima]

I maybe incorrect, but this case was brought to the courts on the behalf of Log Cabin. It was not raised by a military member.

I am not an attorney, do not claim to be one, but I think that is the big difference in regards to this lawsuit.

Keep it apples to apples and oranges with oranges.

 

[Luigi59]

LITS pretty well responded the way I would have. But NO, I won't. If you disagree, then you go find me all the Federal Judges that agree with this judge. And while you're at it, find where the federal judges found that it was unconstitutional for military members to not have the same right to free speech, or to form a union, or to quit their job and walk out, or simply call in sick and not show up, etc... There is a big difference between the rights for those in the military and the civilian world.

And this doesn't even include the fact that the Bill of Rights is not a list of rights for the individuals, but rather limitations on the federal government so as to not infringe on the citizen's rights to Life, Liberty, and the Pursuit of happiness. But when an individual enters military service, they voluntarily allow certain rights to be infringed on. That is allowed in the constitution for congress and the president to maintain discipline and order.

Ya know, for someone who claims to be against the DADT policy (i.e. - you believe that gays should be allowed to serve openly in the military) you certainly put up a lot of arguments against it being eliminated.

 

[LineInTheSand]

Ya know, for someone who claims to be against the DADT policy (i.e. - you believe that gays should be allowed to serve openly in the military) you certainly put up a lot of arguments against it being eliminated.

Perhaps its the reality CC understands that you can not just "undo" it, say "enjoy your two wars military, and figure this thing out too....all while downsizing."

 

[Christcorp]

On the contrary luigi. I happen to be a constitutionalist. And as such, I want the rules to be followed properly and appropriately. It's not my fault that a lot of people mention "Rights" and "The Constitution" and they probably haven't actually read it, let alone know what it means.

The are 2 separate issues at hand here.

1) DADT: Is it a bad policy, is it antiquated, was it a "Wimp's" attempt at pushing a subject to the side that he/they didn't want to address, should it be rescinded? YES TO ALL OF THE ABOVE.

2) DADT: Is it unconstitutional, does the military abide by the same bill of rights that civilians live by, is it unconstitutional or wrong for the congress and/or president to set rules, policies, law, etc... that affects the military in the attempt to maintain order and discipline? NO TO ALL OF THE ABOVE.

When we can discuss the topic in the proper context, and people stop making the constitution and military mean what they want it to mean, then I will most definitely stop sounding like a PITA. (Not to be confused with PIMA). Point is; the military members and the live they/we live/lived is not the same as the rest of the citizenry. As mentioned, our right to free speech is not the same. We can't form unions. We can't just quit. And the list goes on. Does that make the entire UCMJ, rules, policies, etc... Unconstitutional. What about Article 125 of the UCMJ. It's still "Legally" on the books. Sodomy. So, unless you're a woman and man having sex vaginally, it's classified as sodomy. Not saying that military members don't break rules like this every day, just that this law has been in place a lot longer than the DADT policy. Why hasn't this been brought up as "Unconstitutional"? It has been brought up, recently, as proposed to be eliminated because it's not practical or proper to be in a person's bed room. However, no one has ever questioned it's "Constitutionality". Why? Because the president and congress has the RIGHT to maintain discipline in the military as they see fit. And the constitution gives them this right. And that includes creating rules, laws, policies, etc... that may not be acceptable or enforceable in the civilian world.

It's not that I am fighting the DADT policy. It's just that I WON'T argue the points with "Emotions" and "Ignorance". Now, if someone wants to argue that the military/congress/president doesn't have the constitutional authority to make policies, laws, rules, etc... that are contrary to the "Bill of Rights"; we can definitely discuss that. But if you want to go there, then simply start my explaining how certain rules, policies, laws, etc... currently exist in the military, when they don't exist in the civilian world. And how can you be punished for breaking these rules, laws, policies, etc... when a civilian would not.

The military and civilian members are different. If congress (Both sides) had the genitalia, they would go to court and argue that they have the constitutional right to make such policies, laws, rules, etc... and that THEY will decide on rescinding it. But most congressmen today are "Professional Politicians". They are in the business of trying to take away our rights, get re-elected, and maintain power. Most don't care what's right or wrong. Hence, the reason so many courts at different levels have been ALLOWED to legislate from the bench. (When's the last time the courts interpreted a certain way; the congress said: "No, that's not what we meant"; and the congress rescinded the law in it's entirety and re-wrote it more accurately????) They haven't. They allow the judgment/ruling from the court to CHANGE the meaning of the law in question, and they allow it to continue to exist. Thus, why there's "Precedence" so often used in court. Because the law was never rescinded and changed. Congress is derelict in their duties quite often.

 

[Just_A_Mom]

JAM it sounds like you think these are the first cases....now....that's wrong, very wrong.

Are you suggesting in the 14 years of DADT.... this 2010 decision is the FIRST and ONLY? Please, please, please tell me that's not what you're suggesting, and you just don't want to take the time to find support for the other side.

I can't blame CC for not doing a search, what you (JAM) said is just, flat out, wrong. This is the first time a DADT case has been held, it's been held many times, and because it's a military issue, most, if not all, are federal.

He made the statement, not I. I simply asked him to back up his claim.
I did a cursory search and the only cases I could find were Witt and Log Cabin. Both won.

 

[LineInTheSand]

Then I would change the words I'm searching with....

 

[Christcorp]

Not at all. I asked how many judges had ruled. A judge won't rule without a case being brought before them. Even then they may not take the case. Just because you file a lawsuit doesn't mean your specific case has merit or will even be heard.
CC stated that Obviously, there's a LOT of other judges that don't necessarily agree with here.
Unless a judge had ruled then they could not have possibly agreed or disagreed with this judge.
I was wondering how he had arrived at this conclusion. It was a simple question for him to back up his comment.


CC - I don't know of any other rulings. Margaret Witt won her case.
This particular lawsuit was actually filed back in 2004 and had languished in the court system. It finally landed on the Judge's desk in 2008 and she agreed to hear the case denying a motion by the Govt to dismiss the case.
I am not gonna play this sandbox game. Obviously, you don't know of any judges who disagree with her - aka; you made up your claim.

You answer your own questions, you don't understand your own answers, and yet you expect me to respond to more of your questions. If you can't understand your own answers, why should I provide you with more answers.

 

[edhvoice]

LITS pretty well responded the way I would have. But NO, I won't. If you disagree, then you go find me all the Federal Judges that agree with this judge. And while you're at it, find where the federal judges found that it was unconstitutional for military members to not have the same right to free speech, or to form a union, or to quit their job and walk out, or simply call in sick and not show up, etc... There is a big difference between the rights for those in the military and the civilian world.

And this doesn't even include the fact that the Bill of Rights is not a list of rights for the individuals, but rather limitations on the federal government so as to not infringe on the citizen's rights to Life, Liberty, and the Pursuit of happiness. But when an individual enters military service, they voluntarily allow certain rights to be infringed on. That is allowed in the constitution for congress and the president to maintain discipline and order.

If you wish to actually review the cases on Don't Ask Don't Tell, Stanford University Law School has posted the important decisions, both trial court and appellate opinions are available on that website. Here they are

I disagree with your claim that the Bill of Rights does not include rights of individual citizens. It recites individual rights as well as setting out limitations on the part of the Federal Government. I urge you to read the language of the First, Fourth, Fifth and Sixth Amendments. Elements of each of those amendments are individual rights.

It is ironic that the underlying policy issue primarily focuses on concerns over unit cohesion and morale. These same arguments where made with the same conviction in the 1950's when the armed forces integrated and allowed blacks to serve in integrated units. The doomsayers predictions failed to materialize. I am sure that someone out there is going to point out that there is a concern over the blood supply and AIDS in the military. The issue seems to me to be a red herring.

 

[Mongo]

I disagree with your claim that the Bill of Rights does not include rights of individual citizens. It recites individual rights as well as setting out limitations on the part of the Federal Government. I urge you to read the language of the First, Fourth, Fifth and Sixth Amendments. Elements of each of those amendments are individual rights.

You are absolutely correct. From the Court of Military Appeals to the Senate Committee on the Judiciary, one of their primary concerns is that there is no infringement whatsoever on any constitutional rights of our sailors, soldiers, and airmen.

The water is full of red herrings.

 

[SteveHolt243]

What about Article 125 of the UCMJ. It's still "Legally" on the books. Sodomy. So, unless you're a woman and man having sex vaginally, it's classified as sodomy. Not saying that military members don't break rules like this every day, just that this law has been in place a lot longer than the DADT policy. Why hasn't this been brought up as "Unconstitutional"? It has been brought up, recently, as proposed to be eliminated because it's not practical or proper to be in a person's bed room. However, no one has ever questioned it's "Constitutionality".

I'll try to find the court case, but I'm pretty sure the constitutionality has been addressed in court. I could be wrong, and will try to find it, but I think you're wrong about it not being addressed.

 

[flieger83]

I'll try to find the court case, but I'm pretty sure the constitutionality has been addressed in court. I could be wrong, and will try to find it, but I think you're wrong about it not being addressed.

I won't quote it all here; I'll let everyone read it for themselves.

The Supreme Court ruled (in an around about way) on this "topic" in Lawrence v Texas in 2003.

Its implications to Article 125 are large however the supreme's have also upheld article 125 at least twice since then saying "it depends..." IMHO.

Read about it, VERY much shortened than the legal books:

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Steve
USAFA ALO
USAFA '83

 

[Christcorp]

..... I disagree with your claim that the Bill of Rights does not include rights of individual citizens. It recites individual rights as well as setting out limitations on the part of the Federal Government. I urge you to read the language of the First, Fourth, Fifth and Sixth Amendments. Elements of each of those amendments are individual rights......

Each of those LIMITATIONS on the federal government in particular actions, addresses directly our right to "Life, Liberty, and the Pursuit of happiness". Those are our rights. When the founders were looking to ensure our rights were protected, they knew; from past experience; that if the government controlled your speech, your religion, your assembly, your ability to express grievance, etc... then they would be infringing on your right of liberty. Same with illegal search and seizure, etc... You can read these as individual rights if you want to, but our individual rights go WAY BEYOND what's written in the bill of rights. The bill of rights were written specifically to put LIMITATIONS on the federal government. Remember; our found fathers believed that our rights to be NATURAL. That these rights were self evident. They didn't need to be proven. That they were granted to us upon birth by our creator. That their rights were unalienable. That AMONG these, were life, liberty, and the pursuit of happiness. Our founding fathers did not change their beliefs in what they believed rights were between the declaration of independence and the first 10 amendments of the constitution.

In order to maintain these unalienable rights, that our creator gave us, our founding fathers knew that they had to LIMIT government in the amount of power that they could have over the citizenry. That is what the bill of rights are. A set of limitations on the federal government. The first ten amendments are actions that the founding fathers knew the government could take, which would in fact infringe on our rights. Honestly, I think they understood the potential for misunderstanding, and a judicial branch that could and would misinterpret the intent. So, they began to spell it out. In other words, the bill of rights is basically a GIANT E.G. I.e. "The government will not infringe on the people's right to life, liberty, and the pursuit of happiness. E.G. They will not restrict what we say; they will not tell us what religion we must believe in; they will not stop us from assembling; they will not punish us for making a grievance; they will not come onto my property without cause; etc...

Now you don't have to read it that way. No problem. I am not accountable for how your civics, government, constitutional law classes, etc... taught you. But that is what the bill of rights are. A limitation on the federal government's power to infringe on our rights.

And sorry Mongo, but there are plenty of infringements on military member's constitutional rights. And that is ALLOWED according to the constitution. Do you believe you have the right to express yourself in the military like you do in the civilian world? Can you grow your hair long? It's not a safety issue, because girls can have longer hair. Are you allowed to call up your supervisor, commanding officer, etc... and simply say: "I quit. I'm leaving". And walk out the door? That's your liberty we're talking about. There is NOT another occupation in our country that doesn't allow you to simply say. "I QUIT". How about grievance??? Can you protest in the military??? Can you go on strike??? Can you form a union??? Sorry Mongo; but don't tell me that one of the primary concerns of the Court of Military Appeals to the Senate Committee on the Judiciary is that there is no infringement whatsoever on any constitutional rights of our sailors, soldiers, and airmen. That simply is not true. In order to maintain effective and efficient discipline and order, certain rights are expected to be abridged upon you entrance into military service. And because the military is "Voluntary", they can get away with it. Even in time of a draft. "Although some of these very concerns were brought up during the vietnam conflict."

You can believe that the constitutional rights of civilians and military are the same if you want. They aren't, but believe what you want.

 

[TacticalNuke]

The next person who makes this personal instead of providing logical arguments and facts is gone for a week.

Just a friendly warning.

-TN

 

[Pima]

It is ironic that the underlying policy issue primarily focuses on concerns over unit cohesion and morale. These same arguments where made with the same conviction in the 1950's when the armed forces integrated and allowed blacks to serve in integrated units. The doomsayers predictions failed to materialize. I am sure that someone out there is going to point out that there is a concern over the blood supply and AIDS in the military. The issue seems to me to be a red herring.

I don't think people are really talking about cohesion and morale from the same position as it was for integrating AA's in the 50's.

In the 50's when they integrated AA's into the military they were allowed the exact same bennies as their white counterparts. In this situation until the govt acknowledges homosexual unions they will not have the same bennies. The homosexual in a committed relationship, will not get any benefits for their partner if they come from CA where they don't recognize these unions. The military member from NJ where they do recognize civil unions will get these bennies for their partner. This creates a morale issue and reduces cohesion even within the homosexual community that will be openly serving. Imagine you and your best friend are both gay in committed relationships. Their HOR recognizes the union and can now live on base, go to base docs, stay in the TLF's when PCSing. You OTOH can serve openly, but because your HOR doesn't you can't get any of those things.

To get a military id for a dependent all you need to do is show your marriage/union license from your HOR. If your state recognizes your union, then the military will recognize it. You don't show your tax returns for a military id, just the license.

I am sure that many, if not all homosexuals on day one will be excited to serve openly. However, I bet on day 2, just like DADT there will be lawsuits filed on behalf of them to receive all the same bennies as their heterosexual counterparts, which means housing, medical, dental, BAH WITH DEPENDENTS, moving allowances (including wt), spouse employment preference and death bennies. An enlisted member PCSing overseas, can't afford to pay these things out of pocket. Even for an officer that does not have their union recognized by the military, it means that their spouse will only be able to typically go overseas on a VISA. I remember when we were in the UK, and some officers opted to take an unaccompanied tour, the spouse had to fly back home every 6 months.

These issues are not small issues when it comes to the daily life for any military member. The Obama administration may repeal DADT, but they also need to address how they will integrate the bennies, and as I stated earlier, these bennies are tied to a marriage license. That means federally they will need to address homosexual unions.

 

[Luigi59]

....if they come from CA where they don't recognize these unions. The military member from NJ where they do recognize civil unions will get these bennies for their partner.

Actually, Article IV Section 1 of the US Constitution solves that red herring.

Known as the "full faith and credit" clause, it mandates that each and every State recognize the public acts, records, and judicial proceedings of every other State.

In other words, if you're legally married in NJ, CA must recognize it as a legal marriage.

 

[Just_A_Mom]

CC - allow me to try and help you out here:

Log Cabin Republicans vs United States of America

Judge Phillips found that DADT violates a servicemembers 1st and 5th Amendment rights.
Here is the rationale -

While the military does have wide latitude to restrict servicemember speech in order to further its national defense mission, servicemembers remain American citizens protected by the Constitution. At trial, Log Cabin Republicans argued that the speech restrictions imposed by “Don’t Ask, Don’t Tell” are overbroad and unconstitutionally restrict speech based on its content. The court agreed. Unlike time/place/manner restrictions on speech – i.e. restricting the use of loudspeakers in residential areas late at night – restrictions based on content typically face exacting constitutional
scrutiny in order to prevent the government improperly driving certain ideas or viewpoints out of the marketplace. “Don’t Ask, Don’t Tell” restricts speech based on content because it bars a servicemember from saying the words “I am gay” while permitting heterosexual servicemembers to freely speak about being straight, having an opposite-sex spouse or significant other, etc. It is not a bar on discussing sexuality generally, but gay and lesbian orientation in particular.
However, in the context of the military, courts give great deference to restrictions on speech. As cited by Judge Phillips, “the military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.” Therefore regulations on speech in a military context will survive judicial scrutiny if they "restrict speech no more than is reasonably necessary to protect the substantial government interest."

In Log Cabin Republicans v. United States, the government’s interest in protecting military readiness and unit cohesion was accepted as a substantial government interest. At issue was the degree to which speech was restricted, and whether it actually furthered the government’s interest. The court found that too much speech was restricted, and that the state did not show that the interests of unit cohesion and military readiness were furthered at all – indeed, they were undermined by the policy.

This is the crux of the decision. All other decisions were reached PRIOR to Lawrence v. Texas basically saying that the Government was right to restrict homosexuals from serving due to 'competing interests', 'striking a balance' and referred to the policy as a 'carefully crafted national political compromise'.
The courts prior to Lawrence v. Texas basically bought that the policy was required to provide unit cohesion and a strong national defense. The judge in LCR v USA is not buying that argument and neither are most Americans.​

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