'Don't ask, don't tell' ruled unconstitutional

[TotallyOz]

CNN) -- A federal court in Riverside, California, ruled Thursday that the military's "don't ask, don't tell" policy -- which bars gay men and lesbians from serving openly -- is unconstitutional.

"Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement," concluded U.S. District Judge Virginia Phillips, a 1999 Clinton appointee.

The ruling came in a case filed by the group Log Cabin Republicans against the government and Secretary of Defense Robert M. Gates.

The next step is expected to be for the government to ask for a temporary injunction to prevent the ruling from going into immediate effect, pending further appeals. The government at some point in the next few weeks or months would then file a petition with the 9th Circuit U.S. Court of Appeals, which is based in San Francisco, for a hearing. If the government were to lose, its next step would be to the Supreme Court.

But since the Pentagon and White House have signaled their intention to end DADT, with congressional approval, Thursday's ruling may be viewed in a different light.

http://us.cnn.com/2010/US/09/09/dont.ask.dont.tell/index.html?hpt=T2

[TampaYankee]

The shit is going to hit the court dockets now.

No way this SCOTUS buys in to that ruling. Look for an Article I Section 2 'Commander In Chief' Constitutional exclusion.

This ruling may be moot if Congress acts to repeal DADT before the end of the year. Otherwise, do not look for much in the way of 'progressive' legislative accomplishments in the next Congress.

[JKane]

This ruling may be moot if Congress acts to repeal DADT before the end of the year. Otherwise, do not look for much in the way of 'progressive' legislative accomplishments in the next Congress.

Why would next session be any more productive than this session, especially any actually progressive legislation?

[TampaYankee]

Why would next session be any more productive than this session, especially any actually progressive legislation?

My point was it will be less productive.

[JKane]

My point was it will be less productive.

My point was I don't see how it could be!

[TampaYankee]

My point was I don't see how it could be!

Just watch!

[TampaYankee]

The shit is going to hit the court dockets now.

No way this SCOTUS buys in to that ruling. Look for an Article I Section 2 'Commander In Chief' Constitutional exclusion.

This ruling may be moot if Congress acts to repeal DADT before the end of the year. Otherwise, do not look for much in the way of 'progressive' legislative accomplishments in the next Congress.

I've been giving this a little more thought over the last couple of days.

I am no attorney, never even played one on TV; so this is strictly armchair stuff. Nevertheless, I never let lack of qualification stop me from musing.

Assuming that this goes to the SCOTUS and assuming they do not wish to take on the number of strong arguments in the Prop 8 overturn (because of that vascillating 5th vote), some of which would seem to appply to this case too, I postulated an overturn by the Conservative Justices based on the Commander-in-Chief Article 2 clause. There is an interesting consequence or two should this come to pass.

The ruling would hinge on the Commander-in-Chief having the necessary powers to field a coherent force, in good order, to constitute a national military. If that were to prevail, the consequence it seems to me is to deny Constitional grounds that Congress can set the law for who can and cannot serve in the Military Forces. That Congressional perogative was codified in the DADT law to which Clinton aceeded. Reserving that power to the Executive reverts law back to the time of Truman where the Executive determines the issue. Thus the outcome would depend on who is President when this decision comes down, should this scenario come to pass, of course.

Now it seems to me that this would have to be fast-tracked to the SCOTUS should the lower court decision stand, else the army would become defacto integrated with open gays ( heaven forbid). As time passed with that circumstance, the opposing arguments would be weakened further as experience would indicate there was not adverse effect. Thus it should reach SCOTUS during the Obama adminstration. The outcome should be clear cut, one would think.

Another facet to consider is whether the Obama Adminstration would choose to appeal the lower court decision - a very sticky issue for them. To appeal an outcome they seek -- repeal of DADT -- on the grounds that it is the duty of the Executive to defend the laws of the country, or to turn a blind eye.

It does not seem to me that Congress has the power to appeal this as they cannot force the Executive to act and it is the purview of the Executive as laid out by the Consitution. I don't see any special prosecutorial powers that Congress now possesses or could pass, that would survive Executive veto even if they could muster the votes to pass in Congress.

According to my limited perspective, either Congress makes this case moot by repealing DADT soon or it ultimately falls in Obama's lap after SCOTUS gets a wack at it somehow.

I'd love to know how Constitution scholar Barack Obama views this legal question.

[RA1]

The Supremes will likely shunt this issue aside by saying the lower court has no jurisdiction over the entire USA. Then, refusing to accept further arguments. As you suggested, then it will be up the Congress, which has a situation in progress, to deal with this. If all else fails, it likely could be up to the Prez to do something.

Best regards,

RA1

[Guest zipperzone]

If all else fails, it likely could be up to the Prez to do something.

Best regards,

RA1

And we all know how decisive HE is......

[TampaYankee]

The Supremes will likely shunt this issue aside by saying the lower court has no jurisdiction over the entire USA. Then, refusing to accept further arguments.

Not really plausible. The SCOTUS either acts or defers to the President. I doubt the conservative Justices desire to do the latter.

The President is left with a very real dilemma. He has one law to enforce in the 9th District and a diametrically opposed law elsewhere. That is really implausible as military personnel are moved around at least every three years. Thus if the SCOTUS fails to act then the President will have to apply the lower court ruling military wide.

As you suggested, then it will be up the Congress, which has a situation in progress, to deal with this. If all else fails, it likely could be up to the Prez to do something.

This may motivate the Senate to act more expeditiously that it might otherwise.

It also muddies the repeal law under consideration in that it contains a caveat that the military hierarchy must find DADT acceptable for the law to take effect. The lower court ruling gives no leeway at all. That may pressure the hierarchy to go along if they believe it is going to happen with or without their assent.

[Lucky]

How does Obama view this question? From his hiding place behind the couch!