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According to the Advocate, Judge Virginia Phillips has ordered the Department of Defense to “suspend and discontinue” all discharges or even investigations related to Don’t Ask Don’t Tell. Phillips had previously ruled the military’s policy unconstitutional. There is no specific timeline in the order for the start date of the injunction.
The Justice Department has the option of appealing the ruling, and the injunction, to the 9th Circuit Court of Appeals. Several Democratic members of Congress, including Kirsten Gillibrand and Mark Udall, have asked the Justice Department not to appeal, but they are expected to do so and have previously filed an objection to a proposed injunction, saying that it would “preclude the government from litigating other legal challenges to DADT as well as prevent it from considering the terms of a stay banning discharges of gay soldiers.” DoJ has 60 days to determine whether to appeal.
The Advocate has supplied the text of the order:
(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.
(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and
(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.
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How long until the Obama DOJ appeals this decision, like they have with every other gay victory in court?
FANTASTIC!!!!!!
If this order applies immediately, how long before Obama’s DOJ goes running to the Supremes for a stay? Is that their next step?
Damn activist judge.
No, wait — make that Damn Passive Fierce Advocate!
More reax here
So if there’s no timeline provided, doesn’t that mean RIGHT NOW?
Just askin’
So what happens, should the “Pentagon” refuses to comply with the court order?
The question is what happens when the DoD refuses to comply? And we can be certain that they won’t.
BTW Teddy. You asked me late last night, after I left why this issue is so important to me as it doesn’t cover TG Americans. I have an answer. Because out of you and I, one of us has been thrown out of the military for being and LGB or T.
Why do some keep saying there is no time line? As I read #3, the work used is immediately. That sounds pretty clear to me.
It’s good, but I hate it when our human rights now have to have some basis in the Constitution as if our rights flow from the government, and we need a judge to tell us what they are.
Why? One reason (just one) is because Chief Justice Roberts has said that there’s no right to abortion in the Constitution and he’s correct.
In other words I have a basic right as a human being to keep any company I want in any manner (barring injury) that I select and it’s nobody’s business but ours. I also have fundamental freedom over my own body. So there’s two fundamental human rights that I don’t need the government to meddle in and it galls me that we need judges to state what should be the obvious.
That’s all. Rant’s over. I’m done.
Up against the wall MoFObama, – here comes the Judge!
It’s actually in our (the LGBT community’s) benefit if they appeal. But, first and foremost, we shouldn’t rely on courts to strike down DADT.
Erm — rights are granted. Rights don’t exist without a government saying they exist. What you’re looking for is ‘freedom,’ which exists with or without a government.
Not that I don’t think we have a right to gay marriage, I certainly do. But to trash the idea of rights coming from the Constitution kind of goes against the very fabric of a constitutional governmental system.
Thank-you, Judge Virginia Phillips for being on the right side of history.
Shame on you, President Obama for being on the wrong side. There is still time for a course correction if you can find the courage. Needless to say, I am not holding my breath.
You know, DoJ might seek a stay, DoD might choose to ignore, and SCOTUS might overturn this decision, but for now, at this point in time, can we not celebrate the fact that a judge did the right thing, and that right now, Gays and Lesbians can legally serve their country, and that right now, our country is a little bit better than it might otherwise be?
Please?
Or as Uncle Joe would have put it, “How many divisions does Judge Phillips have?”
Wrong. Human rights are natural and inalienable.
No it doesn’t go against the very fabric of a constitutional governmental system. The purpose of the Constitution was to form (constitute) a government which would protect our rights. There were some rights listed for emphasis in amendments but Amendment IX makes it clear that out rights are inherent, as the Declaration of Independence declares.
Amendment IX:
At this rate, we’ll have all our problems solved by the time the sun consumes the earth.
Headed for Nirvana
It’s going to become increasingly difficult for the administration to keep this bad law in place. I sent my usual e-mail to the WH saying “don’t appeal – it’s good policy and it’s good politics.”
Judge Phillips answers question: What Obama could do now?
A: Obey the Court order.
Good grief!
And now, the federal courts are not supposed to rule on the constitutionality of controversial laws?
If DoD refuses to comply any service member discharged on the grounds of sexual orientation is now in a much stronger legal position to challenge.
Ummm, that’s pretty much how it works. The whole point of the Constitution, the whole entire freaking point is to delineate the rights of the individual and the limits of government. That’s it. The whole point. Right there.
The idea was that Kings had a bad habit of overreaching their authority. And there was no power on earth to stop them short of armed insurrection or a well placed assassination here or there by those who craved that kind of power for themselves.
Pissed off nobles took matters into their own hands with the Magna Carta, but that didn’t apply to everyone and it didn’t entirely stick. So over centuries convulsions occurred and in the 18th century a handful of political experimentalists came up with the constitution.
Imperfect and imperfectly interpreted throughout our entire national history, the constitution nonetheless is the bedrock upon which all of our rights rest. We desperately need to protect it and expand it, not blame it for the faults and abuses of a political class that would prefer we had fewer rights.
To have no constitution, no legally recognized social contract that lays out what rights we possess in a world of hierarchies and grossly unequal power would be to have no rights at all. That is not a world I would care to live in.
Our military powers-that-be are just like our civilian ones – blind elitists out of touch with those they lead. The generals want to make this (and any other policy decision) a pissing match with the prez, to show who’s the top asshole on the asshole heap. Obama of course has zero stomach whatsoever for asserting the actual powers of his office, let alone sticking his neck out one centimeter for any moral principle.
Anyway, good on you, judge.
Although great news for Progressives, I wonder how long this ruling can stand. Courts have generally sided with the military in excluding it from compliance with civil rights legislation. But even so, makes for a very interesting election year ruling. Does this administration dare challenge it in court prior to the election and risk even more backlash than they’re already getting over LGBT issues? No matter what they do, they’re bound to anger some group. If Obama had simply issued an Executive Order suspending DADT until Congress had reached an agreement on it, he would have avoided this situation.
Not without a legal framework they’re not.
Well done.
Do they ever reply? If they do I’m certain it is an automated response with no relevance to the content of your message. Regardless, it is good to keep reminding them that we pay attention.
Obama spends way too much time pissing on progressives to have any left over for a pissing contest with his generals.
If the DoD ignores the injunction, it might go all the way to SCOTUS. Assuming the Roberts Court rules in favor of suspending DADT, Worcester v. Georgia comes to mind. Jackson, after the ruling said, “Justice Marshall has made his decision, now let him enforce it.” Bigotry knows no bounds and I wouldn’t put it past the Obama Administration to make a Jacksonian statement such as, “So let them enforce it.”
What then? Impeachment? That’ll happen when me shit turns purple and tastes like sherbet, if you’ll excuse the crudeness of that statement.
According to the Washington Monthly, “last month, Senate Republican voted unanimously to prevent a debate on a defense spending bill that would have cleared the way for DADT repeal.”
“While the court avenue is going well, the Senate may yet take up the same spending bill, with the DADT provision, in the lame-duck session.”
Whether we like it or not, this issue is a political hot potato but DADT is destined to eventually fall. It’s now all about who gets burned. The Administration, obviously, would like to keep it in the courts. Who knows, though, maybe the Senate will act after all?
I guess we’ll see what happens in 21 days.
Can you issue an executive order that would overrule legislation that Congress has passed? Is it constitutional? There hasn’t been much of a challenge to the POTUS authority to issue executive orders that selectively ignores inconvenient legislation using the unitary executive / national security rationale — that I know of. The reason the POTUS was able to order the desegregation of the military is because it was military policy, not law as passed by Congress. At least that’s what I’ve read.
It Gets Bitter
DOJ to Appeal GLAD’s DOMA win in MA.
normally, I wouldn’t want to pour cold water on good news, just think it’s important to remember exactly who we are dealing with here
as pointed out by others, Obama once called DOMA “abhorrent”
fuck us runnin’
Oh what hubris, a Democratic Administration appealing a ruling in favor of Gay Republicans to enforce discrimination.
Sorry, why do gays have a right to kill foreigners for the government? They have the same rights as everyone else, and no one has that right.
You’re half right. The second half.
Turns out O is the abhorrent one.
the president has always had the authority in times of war to issue an executive “stop loss” order that stops the dismissal of military members. Bush I used this authority in the first gulf war to stop all exits from the military even for members who had finished their commitments. Bush II issued a stop loss order after 9/11. But, his order did NOT STOP DADT dismissals. He specifically left DADT out of his stop loss order.
under current Stop Loss conditions, the President can stop all discharges with an Executive Order period
I understand I am not answering the question as you posed it, but the song remains the same
link
No. The judge wildly exceeded her authority; this is an overbroad order that not only should be appealed, but must be appealed.
Now, if we could only get a U.S. judge to rule that way!
Exactly, and I think to protect Constitutional separation of powers, the government has to appeal. Phillips has given Obama a cheap out.
Yeah, turns out judges are allowed to wildly exceed their authority only when they rule in favor of the gubbmint.
Let me guess, you also believe in unregulated “self-correcting” markets, too. Right?
Rights aren’t granted by a government!
Rights are ACKNOWLEDGED and PROTECTED by a government.
Read some Federalist Papers, please. Any.
No, they are allowed to wildly exceed their authority when ruling on unlimited campaign contributions.
umm – it took the *Log Cabin Republicans* to file for redress?
go team.
Glad to hear about this; now I’ll wait for the other shoe to drop.
Best to all in keeping this order going, rather than the reverse. But I won’t hold my breath.
For me, not knowing the limits of Judicial authority, can you explain?
bmaz, glad you’re here. Separation of powers came up on an earlier thread, too. Can you explain how exactly the courts do not have the right to rule on the constitutionality of DADT, because I do not understand this particular argument.
The right to marriage is neither natural nor inalienable, in terms of the recognition by the state and the benefits and status the state determines that marriage provides.
Perhaps you’d prefer (or maybe understand better — I might be using the wrong terminology) natural and legal rights. Legal rights, like marriage, are granted by states — they are relative to whatever political culture you happen to live in. Whereas natural rights, or freedoms as I call them, are those inalienable rights. If you ask me, they’re ‘Life, Liberty, and Estate.’
My point being that to decry the use of the Constitution as the source of our rights is ludicrous. With the absence of the Constitution, or rather what it represents (the social contract), where do you suppose we’ll derive our right to speech, assembly, privacy, etc.? How do you suppose that people will care what _you_ say you have a right to do, if there’s nothing saying so but your own mouth?
Rights must have a basis in the Constitution, because the Constitution is what give us our rights. You can’t just go up to a court, point to the Ninth and say, “I have the right to do X. It says so right there, that I can’t be denied the right to do X.”
There has to be some Constitutional basis for the right to do X. For example, in Roe v. Wade, the argument that the Ninth alone provided a right for abortion was dismissed. Instead, it was a combination of the 14th Amendment and the idea in the Ninth that provided for a right to choose to have an abortion.
To quote from Justice Golberg’s concurrence in Griswold v. Connecticut (available on Wikipedia, btw):
“I do not mean to imply that the …. Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government…”
The Ninth Amendment is not a source of rights.
Needless to say, for gay rights supporters to cheer a judge’s decision, which is based upon a constitutional finding, while simultaneously decrying the use of the Constitution as the source for our rights, is rather confusing.
Ya’ll are so quaint. Any rule of law in the U.S. that wasn’t destroyed by W was trashed by O.
Well, aren’t you the Tuesday afternoon buzzkill!
;-)
ha!
Hurray Blue-ish! Go Dems!
We were born with them. It’s self-evident.
Again, there is no right to abortion in the Constitution (nor for many other actions) according to the Chief Justice so it’s wise to stop considering the foundation document of our nation as a social contract or a compendium of rights. It isn’t.
It makes sense that the judiciary can’t tell the president whether he can go to war or not but does that mean the judiciary is powerless to stop Obama from targeting American citizens abroad for assassination without due process? Does that mean the judiciary can’t enforce Habeas corpus for the alleged terrorists? What is the separation of powers of which you speak?
The Constitution expressly grants to the supreme court and inferior federal courts (created by act of congress) the “judicial” power. This has been interpreted, starting with Marbury v. Madison, to mean that the judicial branch is the final arbiter with regards to the constitutionality of laws.
Separation of powers in a nutshell is the principle that each branch of government has plenary power over specific items expressly granted in the constitution. The “war” powers extend in part to Congress (to declare) and the rest to the President (C and C). It is the opinion of both congress and the executive that DADT works and that openly gay individuals would harm the military. To rule otherwise would in effect allow the judiciary branch to usurp that authority.
I left you a response over there.
Well that is a different can of worms altogether isn’t it? Citizens should be granted Due Process rights, by allowing the executive to execute someone abroad basically abdicates the judicial authority to the president. Habeas does have a history of being suspended (Lincoln in the Civil War) and is not an absolute right, instead the court has ruled that there needs to be at least some judicial process (not necessarily an art III court) in order to be constitutional. The issue is that the bush administration just wanted to detain people indefinitely and has sort of lead to the executive ignoring the judicial branch.
Though I think the conservatives on the court didn’t make a separation of powers issue (since clearly some judicial authority is tied up in those issues) but instead believed in some amorphous “national security” exigency for removing fundamental rights.
I don’t see how it is a different can of worms. Isn’t allowing the executive to strip a citizen of the rights listed in the DADT ruling abdicating the judicial authority to the president also?
Is DADT not a law? Is that where the difference lies? Is it just some sort of directive? I guess in that regard, I can understand where separation of powers come into play. Sorry to be so ignorant but could you dumb it down for me?
What rights? You have no specific right to join the military people are often not allowed to enlist for health reasons. Additionally, most people can live where they want and work where they want, soldiers are told where to live, on what base and deployed, to disregard that would be insubordination.
I guess what I am saying is that a soldier is no ordinary citizen and soldiers are governed by the Code of Military Justice. When you are court- martialed that isn’t an Art III court, but a Military court. DADT isn’t an ordinary law of general applicability, but one that applies to the military alone. War powers are granted to Congress and the president (mostly the president), that includes how to manage the military.
Thank you so much for the clarification. That makes sense to me now. So there really is a need to challenge this ruling. It looks to me like they shouldn’t have been granted standing in the first place–or more likely this is one of those gray areas that can be interpreted in several ways.
It is no wonder they are having so much trouble recruiting for the military. There is no way I could tolerate giving up my rights as a citizen knowing who is in charge right now.
Thanks again. As usual, this subject is much more complicated than it appears on the surface.
I just read a response to this exact same news article over on KOS, and the comments section was full of apologists explaining how a repeal of DADT wasn’t within Obama’s power, so hooray for this.
Hooray for this, it’s true, but the “poor, powerless Obama” thing is wearing really, really thin.
I, like the other posters, wonder — will the DoJ (which Obama DOES exert control over) fight this ruling?
But let’s strip down this opinion, which hinges on two ideas 1) Fifth Amendment Due Process and 2) First amendment for freedom of speech and to petition for grievances.
A soldier often does not get what we would consider Fifth Amendment Due Process, instead their process occurs within the confines of the military using the Code as the rulebook and courtmartials as the judiciary. DADT violators were granted that kind of Due Process. Now if a soldier commits a crime off base, let’s say a DUI, they can be tried in state courts or by the military (often they are dealt with by the military). See the difference here? One is a violation of specific military rules, handled specifically by the military, the other is a rule that falls under two jurisdictions.
Second issue is the First Amendment. First Amendment rights can be restricted, like no yelling “fire” in a building. The argument made is that openly serving gays harm morale, hurt readiness and would therefore lead to more deaths. Because of the “danger” First Amendment rights can be harmed.
Look DADT is stupid, popular opinion is behind getting rid of it, and I think having people living lives in secret cases more potential harm than any posed by openly serving gay soldiers.
WTF? who’s power is it then? Anything so that the President doesn’t have to make a “difficult” decision.
actually, this specific issue about courts generally siding with the military on civil rights was fully argued during this trial. Guess who won the argument???? The judge fully addressed it in her ruling a few weeks back. It’s a good read. You might want to check it out.
I get it. The military code allowed them to challenge DADT and that challenge failed under military code rules. They lost.
And the court decided that the government had not proven their case of the “danger” regarding the first amendment rights. So first amendment rights did not have to be adjudicated through the military code process because it was concerning a law that applies to all citizens and not just the soldiers. Did I get that right? So their standing was granted based on those first amendment rights and not the due process rights which they received through the military code process.
Okay, I’m going to have to go back and read the decision again and see if it makes more sense now. Thanks for taking the time to educate me on this subject. I really appreciate it.
sorry, but this was fully argued at the trial and the judge addressed it fully in her ruling. Yes, members of the military do give up some of their rights. But, the military still is required to treat all the members of the military the same. They CANNOT take freedom of speech away from only the gay members of the military. They can’t take freedom of association away from only the gay members of the military.
If the military wants to stop people from discussing their sexual orientation, then they must apply that to ALL members of the military. They would have to have a military composed entirely of virgin eunuchs.
So? The judiciary is not empowered to make the very basic determination as to whether or not that poses a danger, that is in essence the crux of the separation of powers issue.
Let’s give a different example. Let’s say there are two types of flak jackets, one that works and one that doesn’t. The DoD chooses the one that doesn’t based on some idea that they are cheaper and they can buy more and supply more and that would make the military that much safer.
John Doe dies in Iraq to an IED, a working flak jacket would have saved his life. John’s family brings an action against the government claiming that the choice of the bad flak jacket over the good one was negligent. The court agrees that action was negligent, John’s family wins.
That is a military decision, the DoD under the executive branch has the authority to choose flak jacket a or b, by allowing the judiciary to say it is negligent is giving up some of that military control to the judiciary.
So it was a matter of having different rules for different soldiers? So does that mean that even if the government could prove that gays were “harmful”, that they would still lose the case based on the fact that gays would be held to a different standard than the other soldiers? I can see how that would really cause some separation of powers problems. If they can prove harm, they should be able to take away the rights of those causing the harm regardless of whether that causes inequality … yes?
Of course they can’t prove harm so this is just an intellectual exercise but it still illustrates the complexity of the issues involved here.
I have read the decision completely and you are not even close to addressing what I am talking about. Nice try though.
So I guess this commission empowered by Obama to look into the “danger” that gays cause is really set up to prove there is a “danger” and not to objectively look at the issue. If they can show “danger” than it appears to me the civilian courts have no standing. That is probably what Obama had planned all along and I expect the December report to add a whole new dimension to this fight when it comes out with the bogus conclusion that gays are “harmful” to the military. We will have to start this all over from square one and our only hope for getting rid of DADT will be the Republican controlled congress. I guess I’ll wait until December before I get too excited about this ruling.
Hi bmaz, the question is, will he take it? Or — and I think more likely — will Holder get a higher court to block the ruling until an appeal can be prepared and heard (while letting DADT stand as-is)? I have little doubt that Holder can stop this ruling from taking effect if he wants to and even less doubt that the military will ignore it regardless of what goes on in any court.
Agree with you entirely that this is a big judicial over-reach that short-circuits the legislative and executive. Well intentioned, but wrong. Obama could have earned cheap cred with his Progressive base by going the Exec Order route & avoided this pitfall entirely; apparently he’s just not that interested in us.
Agreed completely. Yes, I think the DOJ has to appeal and seek stay, and will do just that. Unfortunately. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act or not act on the merits and expose themselves. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the WH something to hide behind.
You’re not. And it isn’t.
History repeatedly bears this out. In a complex society all you have are the rights agreed to within that society and supported by whatever legal framework exists.
In the comfort of your own home you may choose to declare that you have all sorts of rights that would not be recognized beyond your front porch, but they do you no good if others do not recognize, support or help you defend those rights.
And as it is, we keep hearing of the assault of banks (with a wink and a nod from the federal government) on even your claim to your own home. Not to mention your email, phone conversations, bank records, etc. The only rights we have are the ones we fight for and defend. There is no guarantee that we won’t lose what we have, much less what we hope to obtain.
Jon Walker is upstairs!
Rand Study: Marijuana Legalization Would Markedly Cut Mexican Drug Cartel Profits
Just wanted to pop back in (albeit late) to say thanks to you and figaro for the discussion of the separation of powers issue. That helps clear things up for me quite a bit.