bobdina
09-10-2010, 12:36 PM
Yesterday, a U.S. District Court judge in California struck down the military's ban on openly gay servicemen and women, ruling that the policy violates their First and Fifth Amendment rights guaranteeing free speech and due process under the law. (You can read the full decision here.)
Awkwardly enough, the defendant in the case is the Obama administration's Justice Department, even though the president publicly supports a repeal of the policy.
But Obama has said he wants Congress to legislate the repeal, and for the Defense Department to have enough time to review how best to implement the new policy. (Read more about the Pentagon's survey about openly gay servicemembers here.)
More than 13,500 people have been discharged from the military under the ban since 1994.
The government lawyers presented no witnesses or evidence, arguing that it was a political debate and should be decided by Congress. They also argued that some of the plaintiffs were not dues-paying members of the group that brought the case, which raised in their view the issue of whether the named plaintiffs had stnading to bring the suit. The judge, a Riverside, Calif. jurist named Virginia A. Phillips, rejected that argument. Now the Justice lawyers have until Sept. 16 to submit a request for an injunction of the decision, which Phillips would likely grant if they pursue an appeal.
So will the Justice Department appeal the judge's decision?
No one knows for certain, and the DOJ says it's still reviewing the case. But an legal appeal would be consistent with Obama's remarks about letting Congress decide the policy. If Phillips's decision stands and the policy no longer exists in two weeks, the Pentagon would have to rush their time-line for assessment and implementation.
The Log Cabin Republicans, a gay advocacy group, brought the suit in 2004 on behalf of six servicemen who had been discharged from the military. Log Cabin president Clarke Cooper tells the Upshot he assumes the defendants will appeal the decision, and that it may eventually end up in the Supreme Court.
His lawyer sounds less sure.
"It'll be an interesting decision for our president to decide whether to appeal this case. He's said that 'don't ask, don't tell' weakens national security, and now it's been declared unconstitutional," the plaintiffs' lawyer Dan Woods told the AP. "If he does appeal, we're going to fight like heck."
What about Congress?
The Senate is looking to take up the don't ask, don't tell ban (which is tucked into the yearly defense reauthorization legislation) as soon as Sept. 20, reports The Washington Blade. "If Congress completes action on the defense bill, that could very easily mitigate or make moot the case," Cooper said.
So why take it to the courts in the first place?
Just in case the legislative deal in Congress falls apart, Cooper says. "We have been very tenacious, like a bull terrier, about having a three-theater approach on this issue," said Cooper, an Army Reserve officer. "We've covered every branch of government on this. We've been consulting with Department of Defense on implementation of repeal, lobbying Congress, and our court case. We've covered it all."
Opponents say that the courts shouldn't be the venue for a policy debate, and that Phillips's ruling constitutes an extension "judicial activism"--i.e., courts going over the heads of legislators to act as the de facto arbiters of social policy. "It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed," Tony Perkins, president of the Family Research Council, told The New York Times.
Both Joint Chiefs Chairman Michael Mullen and Secretary of Defense Robert Gates told Congress in February that the ban on openly gay service should be repealed.
What's the bigger picture?
This decision, along with Judge Vaughn Walker striking down Prop. 8 in California and a Massachusetts judge reversing the federal ban on same-sex marriage, shows a growing consensus among federal judges that laws singling out homosexuals for discriminatory treatment don't pass constitutional muster, the Times speculates. One test of how far that consensus stretches will be the pending challenge to the Prop. 8 ruling, which is expected to go to the Supreme Court.
http://news.yahoo.com/s/yblog_upshot/20100910/pl_yblog_upshot/whats-next-for-the-militarys-ban-on-gays
Awkwardly enough, the defendant in the case is the Obama administration's Justice Department, even though the president publicly supports a repeal of the policy.
But Obama has said he wants Congress to legislate the repeal, and for the Defense Department to have enough time to review how best to implement the new policy. (Read more about the Pentagon's survey about openly gay servicemembers here.)
More than 13,500 people have been discharged from the military under the ban since 1994.
The government lawyers presented no witnesses or evidence, arguing that it was a political debate and should be decided by Congress. They also argued that some of the plaintiffs were not dues-paying members of the group that brought the case, which raised in their view the issue of whether the named plaintiffs had stnading to bring the suit. The judge, a Riverside, Calif. jurist named Virginia A. Phillips, rejected that argument. Now the Justice lawyers have until Sept. 16 to submit a request for an injunction of the decision, which Phillips would likely grant if they pursue an appeal.
So will the Justice Department appeal the judge's decision?
No one knows for certain, and the DOJ says it's still reviewing the case. But an legal appeal would be consistent with Obama's remarks about letting Congress decide the policy. If Phillips's decision stands and the policy no longer exists in two weeks, the Pentagon would have to rush their time-line for assessment and implementation.
The Log Cabin Republicans, a gay advocacy group, brought the suit in 2004 on behalf of six servicemen who had been discharged from the military. Log Cabin president Clarke Cooper tells the Upshot he assumes the defendants will appeal the decision, and that it may eventually end up in the Supreme Court.
His lawyer sounds less sure.
"It'll be an interesting decision for our president to decide whether to appeal this case. He's said that 'don't ask, don't tell' weakens national security, and now it's been declared unconstitutional," the plaintiffs' lawyer Dan Woods told the AP. "If he does appeal, we're going to fight like heck."
What about Congress?
The Senate is looking to take up the don't ask, don't tell ban (which is tucked into the yearly defense reauthorization legislation) as soon as Sept. 20, reports The Washington Blade. "If Congress completes action on the defense bill, that could very easily mitigate or make moot the case," Cooper said.
So why take it to the courts in the first place?
Just in case the legislative deal in Congress falls apart, Cooper says. "We have been very tenacious, like a bull terrier, about having a three-theater approach on this issue," said Cooper, an Army Reserve officer. "We've covered every branch of government on this. We've been consulting with Department of Defense on implementation of repeal, lobbying Congress, and our court case. We've covered it all."
Opponents say that the courts shouldn't be the venue for a policy debate, and that Phillips's ruling constitutes an extension "judicial activism"--i.e., courts going over the heads of legislators to act as the de facto arbiters of social policy. "It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed," Tony Perkins, president of the Family Research Council, told The New York Times.
Both Joint Chiefs Chairman Michael Mullen and Secretary of Defense Robert Gates told Congress in February that the ban on openly gay service should be repealed.
What's the bigger picture?
This decision, along with Judge Vaughn Walker striking down Prop. 8 in California and a Massachusetts judge reversing the federal ban on same-sex marriage, shows a growing consensus among federal judges that laws singling out homosexuals for discriminatory treatment don't pass constitutional muster, the Times speculates. One test of how far that consensus stretches will be the pending challenge to the Prop. 8 ruling, which is expected to go to the Supreme Court.
http://news.yahoo.com/s/yblog_upshot/20100910/pl_yblog_upshot/whats-next-for-the-militarys-ban-on-gays