JUDGE ORDERS HALT OF 'DON'T ASK, DON'T TELL'

[TampaYankee]

'Don't Ask, Don't Tell' Enforcement Must Be Halted, Federal Judge Rules

JULIE WATSON | 10/12/10 04:09 PM | AP

SAN DIEGO — A federal judge issued a worldwide injunction Tuesday stopping enforcement of the "don't ask, don't tell" policy, ending the military's 17-year-old ban on openly gay troops.

U.S. District Judge Virginia Phillips' landmark ruling was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.

Servicemembers United is the nation's largest organization of gay and lesbian troops and veterans.

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.

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.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Before issuing her order, Phillips had asked for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.

The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.

"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.

The Department of Justice attorneys also said Congress should decide the issue – not her court.

Phillips disagreed, saying 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 president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here," said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Tracy Schmaler, spokeswoman for the Department of Justice, said the government was reviewing Phillips' ruling Tuesday and had no immediate comment.

Gay rights advocates say they worry they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill earlier this month because of a "don't ask, don't tell" repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult – if not impossible – next year.

Woods said the administration should be seizing the opportunity to let a judge do what politics has been unable to do.

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.

See original article at:

http://www.huffingtonpost.com/2010/10/12/dont-ask-dont-tell-judge_n_759960.html

[Guest zipperzone]

It would be wonderful if this was the end of an abhorrent policy. But I very much doubt it.

IMO this policy is a contributing factor to the recent upsurge of gay hate crimes.

[MsGuy]

IMO this policy is a contributing factor to the recent upsurge of gay hate crimes.

It's hard for me to judge whether hate crimes are more common or simply more likely to be characterized as such and more widely reported. Back in the day, most folks ignored attacks on gays, laughed them off or regarded that sort of thing as justified direct action against creepy freaks.

But, yes I agree, DADT, DOMA and the like are perceived by some as a cultural wink and nod for attacks on gays.

[BiBottomBoy]

Of course, this eliminates the one way that young gay men could avoid the draft, should they need to bring it back once we start fighting Iran and have three wars going on.

[TampaYankee]

This really puts the onus on Obama to put his money where is mouth is -- to appeal or not to appeal. I suspect the 60 day stay was negotiated with DOJ to give them time to consider actopms, but to also get past the mid-terms and to give Congress a chance to act. One thing is sure to me, the next House is unlikely to move on DADT again.

[BiBottomBoy]

Obama isn't really that gay friendly, nor does he want a fight with the crazy Christians over this, so I'm not holding my breath.

[TampaYankee]

Air Force DADT Enforcement Has Stopped, According To Official's E-Mail

AP / The Huffington Post First Posted: 10-14-10 04:32 PM | Updated: 10-14-10 07:50 PM

WASHINGTON - A gay rights group says the Air Force has told its legal officers to stop enforcing "don't ask, don't tell" because of a judge's ruling Tuesday. But the order to halt discharges could end soon.

The Obama administration will ask the judge to allow the ban on homosexual servicemen and women to continue in force pending an appeal to reverse the ruling, according to a person familiar with the discussions.

Lawyer Dan Woods said his client, Log Cabin Republicans, which won the "don't ask, don't tell" ruling on Tuesday, has been notified that the Justice Department "will appeal and seek a stay" in the case later Thursday. That word was confirmed by the person in the government knowledgeable about the administration's discussions.

The government source said the delay in responding to the judge's order resulted because the Obama White House weighed in on the Justice Department's handling of the case.

This person, speaking on condition of anonymity to discuss the administration's internal deliberations, said a couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling.

The source said the process was back on track and that court papers seeking the stay will be filed.

On Tuesday, U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military "immediately to suspend and discontinue any investigation" or other proceeding to dismiss gay service members. The 1993 "don't ask, don't tell" law says gays may serve in the military but only if they keep secret their sexual orientation.

Phillips wrote that the law "infringes the fundamental rights" of current and prospective service members.

The administration's decision to appeal the "don't ask, don't tell" ruling comes just one day after it filed an appeal against a separate judges ruling that part of the Defense Of Marriage Act is "unconstitutional" because it withholds health and retirement benefits for the spouses of federal employees in same-sex marriages.

Before news that Department of Justice would appeal Phillips' ruling, the Servicemembers Legal Defense Network circulated an e-mail on Thursday that it said was written by the Air Force's Judge Advocate General Richard Harding. In that e-mail, Harding says the Defense Department "will abide" by a court order that says the military can no longer discharge service members who are openly gay.

Such guidance would represent the first time in decades that the military would not discriminate based on sexual orientation.

White House Press Secretary Robert Gibbs said Wednesday that "don't ask, don't tell" is "going to end" -- it's just a matter of how.

On Wednesday, Defense Secretary Robert Gates told reporters traveling with him in Europe that repeal of the "don't ask, don't tell" law should be considered only after the Pentagon completes a study of the impact of lifting the ban, including an assessment of service members' attitudes toward the change. The study is due Dec. 1.

Allowing gays to serve openly "is an action that requires careful preparation and a lot of training," Gates said. "It has enormous consequences for our troops."

See original article at:

http://www.huffingtonpost.com/2010/10/14/air-force-dadt-enforcemen_n_763192.html

[lookin]

Lots happening. I'm surprised and happy to see public acknowledgement that White House lawyers were divided on whether to appeal or not. There seems to be an openness to this administration that was missing in the last one. And I was very happy to hear Obama say on the radio today that DADT would end on his watch. No equivocation.

I haven't bought in to the view that he's abandoned his commitment to gays. It does seem to wax and wane, but I'm inclined to trust him and to believe that he plays a longer game. When DADT ends, it won't be easy for anyone to say that the process wasn't thorough and open.

We shall see.

[BiBottomBoy]

Looking - he never had a commitment to gays to abandon.

Have you ever read about that church he attended for well over a decade before he was shamed out of it?

It was like the Church of Homophobia.

[lookin]

You're right, BiBottomBoy, 'commitment to gays' was probably a simplistic overstatement on my part.

Still, I'd rather have his commitment to end DADT 'on my watch' than McCain's position that 'the policy is working and it's been working well'.

Can't defend Obama's membership in 'The Church of Homophobia', but I do note his resignation from the church a couple of years ago. Even if done under duress, he still did it. He could have stayed in the church and defended its views, but he didn't. As one whose own views change as the years go by, and as life experiences pile up, I do think it's possible for someone to evolve and to look at things differently over time.

I sure hope so anyway! I'd hate to think of being stuck for the rest of my life with the same opinions I had a decade ago, or even the ones I have today, hard as I've worked to shape them. Hopefully we all continue to learn.

I liked your comment a few days ago that DADT could be a way for gay men to avoid the draft, should it be reinstated. Made me think that a surefire way to end DADT would be for everyone to show up at the recruiting station wearing 'I'm Gay!' teeshirts. That would hurry things along.

[BiBottomBoy]

I think a draft is inevitable.

There's no way we don't get sucked in when Israel eventually bombs Iran or vice/versa and/or something goes "boom" in America and we have to blame Iran for it because if we blamed Afghans or Iraqis we'd have to admit we failed and we can't blame the Saudis if we want to continue to be able to drive cars.

A draft is also a great way for politicians to artificially deflate unemployment numbers.

Plus we were able to have an all volunteer army back when we never invaded anything bigger than New Jersey, so people would sign up figuring it would pay for college.

Now that you actually get shot at regularly when you sign up, people are signing up less.

[TotallyOz]

As I have said, I was never an Obama fan. I do not think he is homophobic but I don't think he is a supporter either. He is not the President I hoped he would be and I doubt anything he does in the next 2 years will change my mind on this. He is the most powerful man on earth (so American's think) and yet with the stroke of a pen he could do a great deal to end homophobia. Yet, he does nothing. One has to wonder why?

Do I think Hillary would have done better? Yes, I do. Do I know this for a fact? No, I guess I don't. Would McCain have been better? No. So basically, we are fucked until we get some politicians with some balls who decide to actually do the right thing instead of the popular thing or the things that get them through the next election.

[BiBottomBoy]

Or, in Hillary's case, enough ovaries.