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 'Don't Ask Don't Tell' ruled unconstituional

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Spotts1701
rae
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyWed Oct 13, 2010 5:41 pm

Quote :
A federal judge issued a worldwide injunction Tuesday immediately stopping enforcement of the military's "don't ask, don't tell" policy, suspending the 17-year-old ban on openly gay U.S. troops.

U.S. District Judge Virginia Phillips' landmark ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.

U.S. Department of Justice attorneys have 60 days to appeal. Pentagon and Department of Justice officials said they are reviewing the case and had no immediate comment.

The injunction goes into effect immediately, said Dan Woods, the attorney who represented the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.
"Don't ask, don't tell, as of today at least, is done, and the government is going to have to do something now to resurrect it," Woods said. "This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can."

Legal experts say the Obama administration is under no legal obligation to appeal and could let Phillips' ruling stand.

Source

I can't imagine we have any members who would see this as anything but good news.

Now the question is: how badly will Obama fuck up, or will they just let the ruling stand?
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rae
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyWed Oct 13, 2010 6:26 pm

I sincerely doubt that the ruling will stand, but I can hope and pray. *fingers crossed*
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyWed Oct 13, 2010 6:43 pm

I think the Obama Administration has to appeal this ruling.

Wait, before you get out the pitchforks and torches let me explain. This is one ruling by one Federal Judge. Yes, it does have legal effect but if another Federal judge says the opposite it would have to be appealed upwards anyway.

Now Judge Phillips sits in the Central District of California. Any appeal up would go to the 9th Circuit Court of Appeals, which is famous for being one of the most "liberal" courts in the nation. If they affirm her decision (which is pretty likely) it goes to the Supreme Court. And while getting it up to that level would mean the decision could go either way (it would come down to Justice Anthony Kennedy, as usual), if they were to affirm then it would be practically unassailable.

In addition, if the Supreme Court weighs in it would provide some momentum to resolve it in Congress.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyThu Oct 14, 2010 4:42 am

GODDAMMIT PEOPLE STOP GETTING THE READILY-AVAILABLE FACTS WRONG ON THIS.

Quote :
A federal judge issued a worldwide injunction Tuesday immediately stopping enforcement of the military's "don't ask, don't tell" policy, suspending the 17-year-old ban on openly gay U.S. troops.

This is misleading. The UCMJ bans homosexual behavior outright. In fact, it bans pretty much anything other than straight missionary sex with the man on top. DADT was basically an "it's legal as long as you don't get caught" policy.

Furthermore, a federal judge doesn't have the authority to do this. Two other federal judges have already tried this and got smacked down for it.
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyThu Oct 14, 2010 8:20 am

Penguin wrote:
This is misleading. The UCMJ bans homosexual behavior outright. In fact, it bans pretty much anything other than straight missionary sex with the man on top. DADT was basically an "it's legal as long as you don't get caught" policy.

Which doesn't work because:

- servicemembers who have been "outed" accidentally (or maliciously by third parties) are discharged
- servicemembers who are openly gay, but serve in necessary positions (particularly during "stop-loss" periods), remain in the service as their CO's "look the other way"

Penguin wrote:
Furthermore, a federal judge doesn't have the authority to do this. Two other federal judges have already tried this and got smacked down for it.

DADT is a legislative action passed by Congress and signed by the President into the United States Code, not the Uniform Code of Military Justice. This makes it absolutely reviewable by federal courts as it does not pertain to acts solely within the sphere of the military. And the military conceded that argument in Witt v. United States Department of the Air Force (9th Circuit, 2010) when it did not raise it.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyThu Oct 14, 2010 10:38 am

Spotts1701 wrote:
Which doesn't work because:

- servicemembers who have been "outed" accidentally (or maliciously by third parties) are discharged
- servicemembers who are openly gay, but serve in necessary positions (particularly during "stop-loss" periods), remain in the service as their CO's "look the other way"

This is not news to me. I'm not arguing in favor of DADT, but every time people get all excited about it (and not Congress actually changing the UCMJ) it's worse than getting excited over nothing, it's getting excited over a step backward.

Quote :
DADT is a legislative action passed by Congress and signed by the President into the United States Code, not the Uniform Code of Military Justice. This makes it absolutely reviewable by federal courts as it does not pertain to acts solely within the sphere of the military. And the military conceded that argument in Witt v. United States Department of the Air Force (9th Circuit, 2010) when it did not raise it.

I can't find the specific instances I was told of, so I'll take your word for it.
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyThu Oct 14, 2010 8:25 pm

Penguin wrote:
This is not news to me. I'm not arguing in favor of DADT, but every time people get all excited about it (and not Congress actually changing the UCMJ) it's worse than getting excited over nothing, it's getting excited over a step backward.

Why do we need to change the UCMJ? Last time I checked, simply being openly gay is not "conduct" any more than being black was "conduct" back when the Armed Forces were segregated.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 2:20 am

Spotts1701 wrote:
Penguin wrote:
This is not news to me. I'm not arguing in favor of DADT, but every time people get all excited about it (and not Congress actually changing the UCMJ) it's worse than getting excited over nothing, it's getting excited over a step backward.

Why do we need to change the UCMJ? Last time I checked, simply being openly gay is not "conduct" any more than being black was "conduct" back when the Armed Forces were segregated.

1.) Because being openly gay is conduct. You're choosing to say, "hey, I'm gay."
2.) Article 125 of the UCMJ:
Quote :
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense. (b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

This is where the whole gay ban comes from, and it's a lot older than DADT.
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Fairlight
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 12:43 pm

Penguin wrote:
1.) Because being openly gay is conduct. You're choosing to say, "hey, I'm gay."
2.) Article 125 of the UCMJ:
Quote :
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense. (b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

This is where the whole gay ban comes from, and it's a lot older than DADT.
But isn't that only saying "don't have anal sex", not "don't be openly gay". scratch
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 1:39 pm

That would matter if more than three, maybe four heterosexual people in western civilization understood that homosexual men do stuff other than anal sex.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 2:15 pm

From that link:

Quote :
It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 2:41 pm

Yeah, totally busted on not clicking the link.
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 15, 2010 9:30 pm

Apparently there was one aspect that I missed. While Judge Phillips absolutely has the ability under the Constitution to review DADT, she does not have the authority to issue the injunction that she did.

Judge Phillips' ruling can only have injunctive effect upon any person, entity, or organization that exists within the bounds of the Central District of California. She cannot issue an injunction affecting persons, entities or organizations outside that District because they cannot be "haled" into court in California.

Ex: A soldier stationed at Fort Bragg in North Carolina states that they are gay. The U.S. Army initiates discharge proceedings against them. Judge Phillips cannot hold the Army in contempt for that proceeding because it has occurred beyond her jurisdiction. All that soldier can do is file with a Federal Court in North Carolina and state "I want what those people in California got."
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptySat Oct 16, 2010 12:17 am

Penguin wrote:
Spotts1701 wrote:
Penguin wrote:
This is not news to me. I'm not arguing in favor of DADT, but every time people get all excited about it (and not Congress actually changing the UCMJ) it's worse than getting excited over nothing, it's getting excited over a step backward.

Why do we need to change the UCMJ? Last time I checked, simply being openly gay is not "conduct" any more than being black was "conduct" back when the Armed Forces were segregated.

1.) Because being openly gay is conduct. You're choosing to say, "hey, I'm gay."
2.) Article 125 of the UCMJ:
Quote :
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense. (b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

This is where the whole gay ban comes from, and it's a lot older than DADT.
Um... well not really. This bans certain sexual activity, but it doesn't ban homosexuality as such. Actually, this has nothing much to do with DADT. DADT means that any homosexual soldier who is outed can automatically be discharged. This is more of a nuisance that gay men have to work around.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptySat Oct 16, 2010 12:26 am

No.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptySat Oct 16, 2010 12:49 am

Penguin wrote:
No.
Sorry, but how does a ban on oral and anal intercourse (regardless of the gender of your partner) equate to "If we find out that you're gay, we'll boot you out"?
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptySat Oct 16, 2010 9:41 am

Penguin wrote:
From that link:

From the Albany Law Review

Quote :
The Court of Appeals for the Armed Forces (CAAF), the highest court in the military system, has incorporated [Lawrence v. Texas, 539 U.S. 558 (2003)] into the military context using an as-applied framework that narrowed the circumstances in which Article 125 may be constitutionally applied. Under this framework, the enforcement of Article 125 is unconstitutional only if the provision is applied to conduct that is within the Lawrence liberty interest and if there are no factors relevant solely to the military context that limit the “nature and reach of the Lawrence liberty interest.” Lower military courts have applied this framework to find that Article 125 is unconstitutional when applied to two adults of the opposite-sex engaging in private and consensual sodomy. In these cases, the courts have found no legitimate military interest sufficient to override Lawrence and justify Article 125.

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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 22, 2010 4:02 am

First openly gay soldier successfully re-enlists!
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Spotts1701
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 22, 2010 7:54 am

ZoZo wrote:
First openly gay soldier successfully re-enlists!

Not so fast, unfortunately...the 9th Circuit Court of Appeals has imposed a stay on the judge's order pending a full hearing.

Quote :
This court has received appellant's emergency motion to stay the district court's October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented. Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

Note that this does not address the merits of the case. But it does mean that DADT is back in effect.
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'Don't Ask Don't Tell' ruled unconstituional Empty
PostSubject: Re: 'Don't Ask Don't Tell' ruled unconstituional   'Don't Ask Don't Tell' ruled unconstituional EmptyFri Oct 22, 2010 11:37 am

Boo 'Don't Ask Don't Tell' ruled unconstituional 309696
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