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You are here: MacNN Forums > Community > MacNN Lounge > Political/War Lounge > Cal. Judge "orders" military to stop enforcing DADT

Cal. Judge "orders" military to stop enforcing DADT
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Kerrigan
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Oct 12, 2010, 06:19 PM
 
When it comes to cooky judges, it's always California...

A Cali federal judge (not sure what level.. appears to be from the lower federal courts in the district) has ordered: the military "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" policy.


How does this federal trial court judge think she can order the military to disobey a federal statute?

I'm not sure what the official holding is yet, but it looks like from the way it's worded, the military could stop enforcing DADT and instead go back to the old ban on homosexuals per se.

California.
     
OAW
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Oct 12, 2010, 07:15 PM
 
Because the federal judge heard a case where that federal statute was challenged in court. In her ruling she ruled in favor of the plaintiff and found the federal statute to be unconstitutional. Now here it is a month or so later and she's issued an injunction to enforce the ruling.

You do realize that this is what federal judges do right? It's in the job description.

OAW
     
hyteckit
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Oct 12, 2010, 07:23 PM
 
Because that's what a federal judge does?

And the US constitution is the highest law of the land.
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Kerrigan  (op)
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Oct 12, 2010, 08:14 PM
 
There are hundreds of cases, when a soldier has been recommended for discharge under DADT and appealed to a federal court and argued that DADT was unconstitutional, that federal judges have upheld the constitutionality of DADT.

Nevermind that the armed forces ban on homosexuality, and the quasi-ban of DADT, have been in effect for as long as our constitution has existed.

So how is it unconstitutional?
     
Shaddim
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Oct 13, 2010, 01:31 AM
 
They're afraid guys will be swapping fluids in the showers? Something like that just can't be Constitutional, can it?
Yeah, I'm leaving out all emoticons to see reactions.
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OAW
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Oct 13, 2010, 12:03 PM
 
Originally Posted by Kerrigan View Post
There are hundreds of cases, when a soldier has been recommended for discharge under DADT and appealed to a federal court and argued that DADT was unconstitutional, that federal judges have upheld the constitutionality of DADT.

Nevermind that the armed forces ban on homosexuality, and the quasi-ban of DADT, have been in effect for as long as our constitution has existed.

So how is it unconstitutional?
Well that's just how the system works. Federal District Courts may issue conflicting rulings. It is up to the a Federal Court of Appeals to settle such conflicts among the district courts in its federal judicial circuit. Ultimately, the Supreme Court may render a final decision on the constitutionality of a law if it decides to hear an appeal that has been ruled on in the Federal Court of Appeals.

OAW
( Last edited by OAW; Oct 13, 2010 at 12:10 PM. )
     
SpaceMonkey
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Oct 13, 2010, 12:08 PM
 
Obvious answer: we need robo-judges.

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finboy
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Oct 13, 2010, 12:39 PM
 
Originally Posted by hyteckit View Post
Because that's what a federal judge does?

And the US constitution is the highest law of the land.
And has anyone explained to the judge yet that judges don't make rules for the military? Yet?

Makes a nice blog topic, not much substance there.
     
SpaceMonkey
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Oct 13, 2010, 12:48 PM
 
Originally Posted by finboy View Post
And has anyone explained to the judge yet that judges don't make rules for the military? Yet?
I know! It sounds almost as silly as Congress telling the military what to do, or the judiciary telling Congress they can't do something.

Oh, wait...

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hyteckit
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Oct 13, 2010, 01:03 PM
 
Originally Posted by finboy View Post
And has anyone explained to the judge yet that judges don't make rules for the military? Yet?

Makes a nice blog topic, not much substance there.
What are you talking about?

The federal judge was repealing an existing law, not making new laws.
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SpaceMonkey
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Oct 13, 2010, 01:06 PM
 
Originally Posted by hyteckit View Post
What are you talking about?

The federal judge was repealing an existing law, not making new rules.
The judge was not repealing any law.

To clarify: courts are empowered to issue injunctions (which can be permanent or temporary, depending on the circumstances) to provide immediate relief to plaintiffs while the defendants presumably respond to the ruling (the Justice Department's first (unsuccessful) response was to ask that the injunction be narrowed to only apply to members of the Log Cabin Republicans, in keeping with the scope of the identity of the plaintiffs). They are not instructions, in a positive sense. Meaning, this injunction would compel the military, DoD, etc. to halt any discharge proceedings that may be underway on the basis of the "don't ask don't tell" policy. This order does not provide future policy or statutes for the military to follow that would be in keeping with the court's view of the law. If this ruling were to go unappealed (though obviously that is going to happen), the ball would then be in Congress/the military's court to develop a new policy.

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hyteckit
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Oct 13, 2010, 01:18 PM
 
Originally Posted by SpaceMonkey View Post
The judge was not repealing any law.

To clarify: courts are empowered to issue injunctions (which can be permanent or temporary, depending on the circumstances) to provide immediate relief to plaintiffs while the defendants presumably respond to the ruling (the Justice Department's first (unsuccessful) response was to ask that the injunction be narrowed to only apply to members of the Log Cabin Republicans, in keeping with the scope of the identity of the plaintiffs). They are not instructions, in a positive sense. Meaning, this injunction would compel the military, DoD, etc. to halt any discharge proceedings that may be underway on the basis of the "don't ask don't tell" policy. This order does not provide future policy or statutes for the military to follow that would be in keeping with the court's view of the law. If this ruling were to go unappealed (though obviously that is going to happen), the ball would then be in Congress/the military's court to develop a new policy.
Okay. Thanks for the clarification.

So it's an injunction against the DADT policy and its implementation.
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June 2001: 132,047,000 employed
June 2003: 129,839,000 employed
2.21 million jobs were LOST after 2 years of Bush Tax Cuts.
     
CRASH HARDDRIVE
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Oct 13, 2010, 01:27 PM
 
How does this federal trial court judge think she can order the military to disobey a federal statute?
Well, when it's a federal statute as clearly discriminatory, unconstitutional and outdated as DADT, then I would say at least it's the right thing to try and do.

However it needs to be done -legally- DADT needs to be done away with.
     
BadKosh
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Oct 13, 2010, 01:30 PM
 
So, it's better to court martial any gay who by their actions risk the safety or security of others, not because they are gay.
     
subego
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Oct 13, 2010, 06:14 PM
 
What?
     
The Final Dakar
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Oct 13, 2010, 06:22 PM
 
Not worth asking.
     
olePigeon
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Oct 13, 2010, 06:31 PM
 
Originally Posted by subego View Post
What?
Friendly fire?
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you will understand why I dismiss yours." - Stephen F. Roberts
     
lpkmckenna
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Oct 13, 2010, 06:52 PM
 
Originally Posted by CRASH HARDDRIVE View Post
Well, when it's a federal statute as clearly discriminatory, unconstitutional and outdated as DADT, then I would say at least it's the right thing to try and do.

However it needs to be done -legally- DADT needs to be done away with.
I just agreed with Crash about something.
     
Kerrigan  (op)
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Oct 13, 2010, 06:53 PM
 
UCMJ governs service members. The Constitution only applies to the UCMJ inasmuch as the UCMJ is subordinate to federal legislation, and that service members can appeal UCMJ rulings to a federal court. Beyond that, the military governs itself as it sees fit. So none of the guarantees of freedom of speech, equal protection, etc., apply. Case in point: women are discriminated against for many military jobs. No equal protection. Transgendered persons are, and likely will be for a long time, banned from service. No equal protection.

DADT is an awkward, half-way federal statutory codification of the UCMJ's own ban on homosexuality. It was enacted by Congress.

To say that DADT is unconstitutional means that DADT, and the old UCMJ ban that it codifies, are unconstitutional.

Question: where does it say in the Constitution that the military must give equal protection to sexual preference?

It doesn't. The constitution is silent on this point. It is a matter of legislation.

This is a last ditch effort of a liberal judge to do what the Democratic congress should have, but didn't, do, which is repeal the law.
     
ghporter
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Oct 13, 2010, 09:47 PM
 
The UCMJ implements Constitutional guarantees in a very different situation than most citizens find themselves. Don't want to keep working for your current boss? You can quit-a service member cannot. There's a lot about the UCMJ that is much better for the prospective defendant in a criminal case, but it also codifies specific limits on the freedoms of service members because of their positions and the necessity for a well ordered military. Interestingly, the Wiki article on the UCMJ is quite accurate and well written. The UCMJ is, in fact, a US statute, passed by Congress, and updated from time to time by both executive orders and Congressional actions (typically rolled into a military spending bill).

The Constitution guarantees equal protection under the law to all, see the 14th Amendment. The court held that "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." (multiple citations of the court's order are available, including this one.

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CRASH HARDDRIVE
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Oct 13, 2010, 10:37 PM
 
Many of the same arguments were also cited back in the day to continue with segregation and racial discrimination in the military. Luckily, we've since moved passed that. It's long since time to do the same with regards to sexual orientation.

I would ask: where in the constitution does it say that equal protection under the law doesn't apply to service members when it comes to their sexual orientation? I can understand the military having requirements that certain jobs be performed by certain people- color blind and you can't fly a fighter, over a certain weight and you can't serve on a submarine, have a vagina and you're not suited for front line combat. (Probably applies to having one artificially as well, or having at one time had one, IE: transgendered.) The wrong age? Bye.

I can see where the military can claim rights to enforce a certain set of physical qualifications to perform various duties. Don't meet the standard? Tough luck. There's no clear violation of equal protection under the law. These same things exist in the private sector as well: I can't sue the Cowboys if they won't hire me as a cheerleader.

But being gay isn't a physical trait.

So discharged/denied promotions/etc -despite qualifying for all the physical requirements of your duty- simply because of your sexual orientation? That doesn't seem like the same thing at all.
     
   
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