U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips' ruling stand.
[U.S. District Judge Virginia] Phillips declared the law unconstitutional after a two-week nonjury trial 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.
"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. . . .
"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.
Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members. . . .
Phillips [said] 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.
Legal experts say the Obama administration could choose to not appeal her ruling to end the ban — but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy. . . .
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.
Government attorneys . . . had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.posted by John Cohen at 1:27 PM on October 12, 2010
• 73 percent of military personnel are comfortable with lesbians and gays (Zogby International, 2006).Additional research and polls.
• Majorities of weekly churchgoers (60 percent), conservatives (58 percent), and Republicans (58 percent) now favor repeal of DADT (Gallup, 2009).
• 75 percent of Americans support gays serving openly - up from just 44 percent in 1993 (ABC News/Washington Post, 2008).
• In 1993, RAND Corp. concluded that openly gay people in the U.S. military do not negatively impact unit cohesion, morale, good order or military readiness. An update of this study should be completed in the next 90 days.
• Several other military-commissioned and GAO studies have concluded that open service does not undermine military readiness, troop morale or national security.
• Today, there are at least 66,000 gay Americans serving on active duty and one million gay veterans in the United States, according to the Urban Institute.
"It is my personal and professional belief that allowing homosexuals to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens."Defense Secretary Robert Gates:
"I fully support the President's decision [regarding the repeal of DADT]. The question before us is not whether the military prepares to make this change, but how we best prepare for it. We have received our orders from the commander in chief and we are moving out accordingly."Admirals, Generals: Let Gays Serve Openly -- "More than 100 call for repeal of military's 'don't ask, don't tell' policy."
I continue to be taken aback by all the grumbling about Obama. Seriously, you all would be happier with the cranky old guy and Palin in charge now?
"Critics of the ruling include Tony Perkins, the president of the Family Research Council and a proponent of the don’t ask, don’t tell law, who accused Judge Phillips of 'playing politics with our national defense.'posted by ericb at 1:14 PM on October 13, 2010
In a statement, Mr. Perkins, a former Marine, said that 'once again, an activist federal judge is using the military to advance a liberal social agenda,' and noted that there was still 'strong opposition' to changing the law from military leaders.
Mr. Perkins predicted that the decision would have wide-ranging effects in the coming elections. 'This move will only further the desire of voters to change Congress,' he said. 'Americans are upset and want to change Congress and the face of government because of activist judges and arrogant politicians who will not listen to the convictions of most Americans and, as importantly, the Constitution’s limits on what the courts and Congress can and cannot do.'"*
"Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not." - White House Counsel Jack Quinn, 1996This is exactly what we have been arguing for a year and a half, and what the Obama administration and its apologists have been denying: The President has the power to not appeal a case if he so chooses. We were told that simply wasn't an option, we were told that even if it were an option it certainly wouldn't apply to a case involving gays being kicked out of the military, and we were told that all hell would break loose if it ever happened, and now we find out that it didn't only happen, it happened on a case dealing with kicking gays (let's face it, back then HIV+ was code for "gay") out of the military, and all hell didn't break loose, a later Republican president didn't retaliate, and locusts didn't descend from on high.
And then there's a group of advisors who appear to be as fed up with the maneuvering as Rachel Maddow is, and who want the president to make a public statement effectively saying, "Enough is enough. We've done this as orderly as we can. We can't control everything. But the policy is dead, as of today." Even under this scenario, gay soldiers wouldn't have access to spousal benefits just yet -- the DoD does need time to figure out how it would all work.The president is apparently convinced that he needs to do this the "right" way -- by getting the Pentagon to acquiesce, then having Congress officially repeal it. But it's already failed in the Senate -- because of Harry Reid's horrible maneuvering and because of the 60-vote requirement and because of those awful, awful women from Maine and because the Senate is broken. Meanwhile, the Pentagon is more than happy to undermine Obama and play the press against him. There's no reason to believe that they'll fall in line once they're done with their "review" in December.
"The recruiters were told that if a candidate admits he or she is openly gay, and qualify under normal recruiting guidelines, their application can be processed. Recruiters are not allowed to ask candidates if they are gay as part of the application process.posted by ericb at 7:17 AM on October 20, 2010
The notice also reminded recruiters that they have to 'manage expectations' of applicants by informing them that a reversal of the court decision might occur, whereby the 'don't ask, don't tell' policy could be reinstated, Smith said."*
"I was discharged in 7/2010 from the US Army because I told the truth about my sexual orientation and refused to lie about my cherished lover and partner. I do not intend to lie about my identity or family in any portion of my service."posted by ericb at 11:08 AM on October 20, 2010
Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ''personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.''posted by ericb at 2:50 PM on October 21, 2010 [1 favorite]
A senior defense department lawyer briefed reporters on Thursday afternoon about the memos, saying, ''These two memos are primarily in reaction to ... the temporary stay last night. We are clearly in a legally uncertain territory.''
When asked if the ''coordination'' required would allow Johnson or Stanley to effectively ''veto'' the decision of a service secretary, the lawyer said that that is not the case. He said that the purpose of the change was ''to ensure greater uniformity and care in the enforcement of the law.''
Dear Mr. President:posted by ericb at 3:38 PM on October 25, 2010
Years from now, students of the movement for lesbian, gay, bisexual and transgender equality (LGBT) will no doubt see this fall as a pivotal period in the history of our struggle for fundamental fairness. In January, we were all inspired by your State of the Union pledge to end our nation’s discriminatory ban on open service by gays and lesbians. Equally inspiring was the testimony in support of repealing the “Don’t Ask, Don’t Tell” law by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. We have come so far, but the only true measure of success is whether the thousands of brave gay and lesbian Americans who are serving their country, and the many more who want to serve their country, can do so openly and honestly. We have not yet met that goal, and without your leadership and unparalleled efforts, this historic opportunity to remove a stain of discrimination from our nation will pass all of us by.
Last week, lawyers for your administration asked for an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, seeking to end a worldwide injunction of the “Don’t Ask, Don’t Tell” law while they work to overturn a federal judge’s conclusion that this law – one that you have called discriminatory and contrary to our national security on many occasions – offends the protections of our Constitution. I continue to struggle with how your administration can defend a law you oppose, and how it could be even remotely constitutional for a statute to single out one group of brave Americans, because of who they are and who they love, and order them serve in silence and deception. How can our government have a duty to defend a statute that is clearly so contrary to our Constitution’s guarantee of equality for all?
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"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.
posted by bearwife at 1:26 PM on October 12, 2010 [10 favorites]