Military ban on gay service declared unconstitutional

[Geniasis]

Except it's not about keeping their sex lives to themselves, but lieing about their preference, and straights don't have the same restrictions.

It was an improvement in the sense that it discouraged superiors from harassing people and trying to figure out if they were gay.

But it's outlived its purpose by so much, it's reanimated husk became part of the problem.

[Xsyne]

Good. Good things seem to be happening recently.

'Cept I keep thinking I'm going to wake up in a minute and go, "Aww, it was a dream!"

Maybe what happened was McCain won the election and all of us liberals are being kept in happy isolation chambers with virtual reality technology. Did you hear that women have slightly higher wages than men, now? There's a fucking rainbow that ends on my doorstep everyday, as well. The wars are ending! Healthcare is coming! OMG! Now, when I go shopping everything is free and everybody is getting an abortion!!

The Wachowski brothers present The Gaytrix.

[The Parkus Empire]

IT is actually against UCMJ for a woman to shave her head or get a buzz cut.

I know one who got one in basic: didn't result in much except for a Drill Sergeant telling her she looked like shit, which Drill Sergeants are wont to do anyhow.

[The Parkus Empire]

Most European armies are a joke compared to ours. This is the same place where 100 planes is considered an airforce and 50,000 is an army.

Canada's total Army is about 35,000, but they sound pretty hard core from their training length, and soldiers I know who served with them said they're competent, so I dunno.

[Farnhamia]

Most European armies are a joke compared to ours. This is the same place where 100 planes is considered an airforce and 50,000 is an army.

Canada's total Army is about 35,000, but they sound pretty hard core from their training length, and soldiers I know who served with them said they're competent, so I dunno.

IIRC, Cobhanglia is a mixed-race white supremacist, so his grasp of reality seems to me tenuous, at best.

[Bluth Corporation]

1. Because it doesn't follow relatively common grammatical norms.

Please don't confuse grammar and orthography.

[The Cat-Tribe]

Notes: 1. I have not yet read the decision or the entirety of this thread. I am simply replying to the point raised by the posts below because they are commonly raised on NSG & they piss me off.

2. I apologize for the length of this post, but, as I said, this pushes my buttons.

I'm getting damn tired of these overactive courts using far more authority than they should have acquired. The very concept of judicial review should be reevaluated Constitutionally and edited so that Courts will not have the authority to make decisions like this. The Courts are becoming as though a legislature of their own. All they have to do is scream "unconstitutional" and they can enforce whatever they please.

I don't see what the problem is. This decision is both a victory of idealism and pragmatism.

I firmly disagree. Anyways, this sort of decision should never pass through the judicial branch. The role of the Courts should be less involved in politics. It's getting to the point where you liberals are abusing the system by simply avoiding the legislature, where you'ld never be able to pass your legislation, and simply heading the Courts where you can forge some sort or arbitrary declaration of unconstitutionality for whatever policy you're opposing. This needs to be put to a stop.

More autocratic government by the courts under the premise of "constitutionality"; despite the fact that such decisions basically amount to the Court rewriting the Constitution to suit its views. There is absolutely nothing in the Constitution that could possibly be construed as giving gays an unalienable right to serve openly in the military.

1. Why do you hate freedom? Why do you hate liberty and equal protection under the law? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. Contrary to your whining about judicial tyranny or the importance of the legislature, fundamental rights and equal protection of the law do not depend on the whim of majority opinion or the outcome of elections:

The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:

The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also: Declaration of Independence (emphasis added):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51 (emphasis added):

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

2. It was U.S. District Judge Virginia Phillips's sworn duty under the Constitution to exercise the power of judicial review and declare void any properly challenged law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.

Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution.

That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in The Federalist #78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

3. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances that protects our freedom:

A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Article VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branches of government.

So, let's now turn to Article III, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ..." It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, in the 200 years since Marbury, the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious.

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):

The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):

[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way.

(NOTE: In writing these points, particularly the overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head.)

4. The power of a single U.S. District Court Judge to issue an injunction against an unconstitutional law is not only constitutional and not undemocratic, but is also expressly approved by Congress -- dating back to the Founders themselves.

Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

IN SUM, quit whining about judicial tyranny simply because a court rules a way you wish it hadn't. It is utterly infantile nonsense.

What do you think we are, 5? Anyone with ANY education at all knows what judicial review is. I'm saying that in this case, the decision of the court is a load of BS because there is nothing in the Consitution that could be construed as forcing the military to permit gays to serve openly. And I'm calling it judicial tyranny because the court has a long (and I mean LONG) history of changing the "meaning" of the Constitution to suit the views of its members. One court defends segregation, and another strikes it down. One strikes down the AAA, and another allows Congress to stretch the Commerce Clause to control just about every aspect of economic life. It's ridiculous.

1. Despite your practically begging me to insult you, I do not think you or Greater Americania are 5. To the contrary, I think you are both old enough and educated enough to know that your arguments are childish tantrums without substance -- especially our original rants that didn't contain any of the qualifications you are now trying to add.

2. Policy objections to the District Court's opinion do not amount to legal arguments, let alone convincing proof the court has committed an act of tyranny.

3. SCOTUS has from time to time decided that it erred and reversed itself. This is the exception and you the examples you note are rather notorious and took place over long, long periods and did not involve the Court changing its mind willy-nilly. Regardless, I do not see how any of this supports your position. Would the judiciary be less tyrannical if it never admitted error and never overturned mistakes?

Also, your argument ignores the point that neither Congress nor the President (or the states or the people) have felt that these cases have amounted to such "judicial tyranny" that action must be taken to limit the power of the Court. Sure, after some decisions, people like you throw little tantrums about how the judiciary was wrong in that case, so the whole system must be changed -- but such flashes in the pan quickly burn out as they should.

4. I am rather certain neither of you has actually read the District Court's 86-page decision (which followed pre-trial proceedings, a six-day trial, and extensive post-trial briefing), so you don't even know what you are arguing against. Am I wrong?

5. The Due Process Clause of the Fifth Amendment of U.S. Constitution protects a substantive liberty, including rights associated with "the autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Lawrence v. Texas, 539 U.S. 558, 562 (2008). The Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of homosexuals, in manner that implicates the rights identified in Lawrence, and is subject to heightened scrutiny." Witt v. Dep't of Air Force, 527 F.2d 806, 819 (9th Cir. 2008). Thus, in order for the Don't Ask, Don't Tell Act to be constitutional, it must "[1] advance an important government interest, [2] the intrusion must significantly further that interest, and [3] the intrustiopn must be necessary to further that interest." Id. The District Court gives deference to the military and Congress and assumes the Act advances an "important governmental interest." p. 49 (citing Witt, 527 F.3d at 821. The District explains, however, that the Act fails miserably to meet either of the other two requirements:

Thus, the evidence at trial demonstrated that the Act does not further significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants' discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a service-member is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline – 50% from 2001 to 2002 and steadily thereafter – in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness.

In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don't Ask, Don't Tell Policy "significantly furthers" the Government's interests nor that it is "necessary" in order to achieve those goals. Plaintiff has relied not just on the admissions described above that the Act does not further military readiness, but also has shown the following:

• by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness;
  
  
• by causing the discharge of otherwise qualified servicemembers with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness;
  
  
• by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness;
  
  
• Defendants' actions in delaying investigations regarding and enforcement of the Act until after a service-member returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion;
  
  
• by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
  
  
• the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest.

Thus, the District Court concludes:

Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

6. The First Amendment of the U.S. Constitution provides that "Congress shall make no law ... abridging freedom of speech." It contains no exception that excludes the speech of homosexuals or categorically exempts the military from its application. However, SCOTUS has held (and the District Court recognizes) that regulations restricting free speech must be reviewed more deferentially in the military context than the civilian context:

Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.

Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted).

Although careful to point out that the "subordination of the desires and interests of the individual to the needs of the service," which is "the essence of military life," does not entirely abrogate the guarantees of the First Amendment, the Supreme Court emphasized the "great deference [courts must afford] to the professional judgment of military authorities concerning the relative importance of a particular military interest." Id. (citations omitted). The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S. 57 (1981), oft-cited for the principle that "judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Id. at 70.

Thus, "in keeping with this well-established rule of deference, regulations of speech in a military context will survive Constitutional scrutiny if they 'restrict speech no more than is reasonably necessary to protect the substantial government interest.' Brown v. Glines, 444 U.S. 348, 348, 355 (1980) (citing Greer v. Spock, 424 U.S. 828 (1976); Procunier v. Martinez, 416 U.S. 396 (1974)). (This is a much more deferential than the "exacting scrutiny" that would apply to such a rule in the civilian context. Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994). Normally, to justify such a law, the government must show "that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 118 (1991) (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987))). The Don't Ask, Don't Tell Act fails even this lower test of constitutional validity. Again, the Court assumes (even though the government presented no evidence) that the Act serves a substantial government interest, but the Act restricts speech far, far more than reasonably necessary to protect said interest.

7. Neither you nor Greater Americania has presented an argument rebutting the analysis set forth in points #5 & #6. (No other poster has either.)

[Tekania]

What do you think we are, 5? Anyone with ANY education at all knows what judicial review is. I'm saying that in this case, the decision of the court is a load of BS because there is nothing in the Consitution that could be construed as forcing the military to permit gays to serve openly.

1st and 14th.
That seems pretty basic, I'm not even American

14th Amendment only applies to state infringements of rights. The 1st Amendment does protect freedom of speech, but you also must take into consideration the fact that that right is already abridged by the military as it sees fit to ensure discipline and order.

How does someone being openly gay endanger discipline and order?

Lots of people ave problems serving with gays. Squad beating shouldn't be ruled out, for example.

I would rather punitively discharge a squad of people beating up soldiers because of their sexual orientation, than administratively discharge a single soldier for only his/her sexual orientation. The ones engaging in squad beating are the ones who lack the discipline to be soldiers, and as such allowing them to be protected from showing their inneptitude is no real excuse. The military would be better if we knew who these dishonorable soldiers were and keep them out in the first place, or discharge them in such manners as to ruin their entire lives as the criminal scum they are.

[Tekania]

The military is more then a job it is a set of federal benefits, I personally will have extracted over 120,000 dollars over 5 years in educational benefits.

The military does NOT exist to give you money, it exists to defend this nation and its interests. That's another problem with today's military; people have forgotten that the first and foremost job of a soldier is to fight.

No, the first and foremost job is not "to fight", it is to "defend" and "protect". Those are not necessarily the same thing.

[Tekania]

And you just said that to a member of the armed forces. Congratulations for not understanding that the military protects its own, regardless of who that person is.

Clearly he hates our troops.

I don't hate our troops. I hate the people who join for the money and completely forget about the whole "going to war" aspect of military service.

Says the person upholding a system seeking to disenfranchise a segment of the population willing to "[go] to war" for our nation.

[Tekania]

I guess it's good since they get to serve. But i don't see how this is that important since they could always serve as long as they didn't tell anyone they were gay.

Not just 'not say'. It was 'not be found out'. Which means if you were openly gay before enlistment - better cross your fingers. Can't have a date anywhere anyone might see you and report it. And all to protect homophobia in the army. Pretty stupid, considering here in Europe armies have survived allowing Gay servicemen

Most European armies are a joke compared to ours. This is the same place where 100 planes is considered an airforce and 50,000 is an army.

Having served next to them, many of those European armies are far more disciplined than our own. I've seen entire US units banned from entering European towns on deployment because of the units lack of capacity to maintain discipline in their ranks. People like you are precisely why we have units like that.

[Wikipedia and Universe]

But Cat Tribes! Gays aren't people!

LIE!!!

Nah, it's true. My cousin Cletus saw one o' dem gays layin' eggs down by the river. Had scales and everything.

Cletus van Damme?

[Grave_n_idle]

What do you think we are, 5? Anyone with ANY education at all knows what judicial review is. I'm saying that in this case, the decision of the court is a load of BS because there is nothing in the Consitution that could be construed as forcing the military to permit gays to serve openly.

1st and 14th.
That seems pretty basic, I'm not even American

14th Amendment only applies to state infringements of rights. The 1st Amendment does protect freedom of speech, but you also must take into consideration the fact that that right is already abridged by the military as it sees fit to ensure discipline and order.

How does someone being openly gay endanger discipline and order?

Lots of people ave problems serving with gays. Squad beating shouldn't be ruled out, for example.

Right.

And allowing women allowed military personnel to rape our own female soldiers.


Of course, not ALL soldiers turned rapist, and those that have done, have (usually) been held accountable for their actions... so why are we blaming gay people for the violence against them?

Shouldn't we, instead, weed out the elements that can't seem to function within the rules?

[Dyakovo]

What do you think we are, 5? Anyone with ANY education at all knows what judicial review is. I'm saying that in this case, the decision of the court is a load of BS because there is nothing in the Consitution that could be construed as forcing the military to permit gays to serve openly.

1st and 14th.
That seems pretty basic, I'm not even American

14th Amendment only applies to state infringements of rights. The 1st Amendment does protect freedom of speech, but you also must take into consideration the fact that that right is already abridged by the military as it sees fit to ensure discipline and order.

How does someone being openly gay endanger discipline and order?

Lots of people ave problems serving with gays. Squad beating shouldn't be ruled out, for example.

Right.

And allowing women allowed military personnel to rape our own female soldiers.


Of course, not ALL soldiers turned rapist, and those that have done, have (usually) been held accountable for their actions... so why are we blaming gay people for the violence against them?

Shouldn't we, instead, weed out the elements that can't seem to function within the rules?

Nah, that would make too much sense...