Log Cabin case against DADT continues forward

Timothy Kincaid

January 29th, 2011

For decades our community has fought for our right to serve in the US Military on the same terms as anyone else. And finally, we have a timeline, a near future, in which such a scenario seems likely. And for most of us, the end to this offensive and unnecessary ban is more important than the way in which it is ended. Just so long as the long wait is over.

But the manner by which Don’t Ask, Don’t Tell – and the pre-existing ban is moderated – comes to a halt has a great deal of impact on other matters of importance to our community. There are both positives and negatives to both the judicial and the legislative solution.

If the courts strike this ban down as discriminatory, then it sets continuing precedent that anti-gay discrimination is in violation to the US Constitution. But this can have the effect of appearing to be “judicial activism” overriding the will of the people’s elected legislature and can be ammunition for the social conservatives’ attack on the US judicial system.

If the legislature provides resolution, this gives a blessing to the solution as being “of the people”, but it also leaves the matter open to future reversals. Additionally, the current projected termination of the anti-gay policy does not prohibit discrimination, it simply ceases the institutionalization of the practice. Of concern is also a threat by some Republicans in the incoming House to find a way to block implementation of the repeal.

Fortunately (and this really rarely happens) we have both legislative and judicial solutions. Congress has voted to reverse DADT and the President is projecting a short implementation. But also, the Federal Court has found that DADT – or, indeed, any arbitrary ban on gay soldiers – violates the US Constitution. And the timing of such is that they are both occurring simultaneously.

In September of last year, Judge Victoria Virginia Phillips found that DADT is unconstitutional. The government appealed, and has been actively fighting that decisions since. Even after Congress acted to reverse DADT during the lame duck session, the government requested that the proceedings be stayed until the ban was lifted and the case become moot.

As I noted above, that would not be in our best interest. And yesterday Judge Phillips the Ninth Circuit Court of Appeals denied those efforts and set a schedule for the case to continue:

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government’s opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans’ answering brief and supplemental excerpts of record are due March 28, 2011; and the government’s reply brief is due 14 days after service of the answering brief.

The best of all possible worlds would be for the courts to conclusively determine that any ban on open gay service is unconstitutional (for the appeal to be denied or dropped) but for the President’s timeline to be administered. It looks as though this is a possibility.

andrewdb

January 30th, 2011

The trial judge was _Virginia_ Phillips, and the most recent motion was heard by the 9th Cir. Court of Appeals, not the trial judge (which is how they set the briefing schedule).

Timothy Kincaid

January 30th, 2011

andrewdb,

Wow. I’ve been calling her Victoria Phillips in commentary after commentary and this is the first time I’ve been corrected. How embarrassing.

And you’re also correct that it was Appeals, not Judge Phillips that denied the motion.

Thanks.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

Today's Agenda Is Brought To You By...

Born On This Day, 1951: Chris Smith, Baron Smith of Finsbury

Born On This Day, 1952: Gus Van Sant

Born On This Day, 1965: Kirk Andrew Murphy

Clinton Pays Private Visit With Pulse Families, Pays Respects To Victims

Today's Agenda Is Brought To You By...

Today In History, 1987: Reagan Names Gay Man To AIDS Commission

Born On This Day, 1816: Charlotte Saunders Cushman

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.