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Posts for September, 2010

LCR responds to Justice Department’s ridiculous filing

Timothy Kincaid

September 24th, 2010

The Justice Department argued that it would be beyond the scope of Judge Phillip’s authority to issue a world-wide injunction on the enforcement of Don’t Ask, Don’t Tell. LCR has replied, noting that this question has already been addressed by the court.

MR. FREEBORNE: With regard to the last point, this Court’s jurisdiction would only extend to this district. They are asking for nationwide relief, which this Court would not even have the power to effectuate a nationwide injunction. This is not a class action; this is a case brought within this district.

THE COURT: But how in the world could — if the plaintiffs succeed in this case on the relief that they are seeking, are you suggesting that an injunction would be only directed to service members serving within the Ninth Circuit?

MR. FREEBORNE: Your Honor, this Court does not have nationwide jurisdiction to issue an injunction.

THE COURT: Are you suggesting that, theoretically, if a district court orders that any regulation or federal law is unconstitutional, it only applies in the district where the Court sits?

MR. FREEBORNE: Well, Your Honor, we can put that issue aside. I just note that I think that –

THE COURT: That’s because I think you are incorrect.

As for the idea that it should only be limited to the Log Cabin Republican members,

The government’s first argument objecting to a worldwide injunction against DADT is that such an injunction should be limited to Log Cabin Republicans and its current members (who, in an appalling Catch-22, the government implies should be specifically identified as “bona fide LCR members”). This objection should be summarily rejected. This case was never litigated or tried on the basis that Log Cabin sought to invalidate DADT only for its own members; on the contrary, this case was brought as a facial challenge.

Obama Administration defends DADT policy; opposes injunction

Timothy Kincaid

September 23rd, 2010

Today the Justice Department filed an opposition to Log Cabin Republicans’ request for injunction on the application of the Military’s anti-gay Don’t Ask, Don’t Tell policy which a federal judge found to be in violation of the US Constitution. The White House has made clear that this decision was made with the President’s blessing.

The DOJ argues against a world-wide injunction because it would deny them the opportunity to get a conflicting decision elsewhere. Even an injunction which covers the Ninth Circuit is unacceptable because then they would be unable to move forward with their case against Margaret Witt.

Therefore they argue that an injunction should be limited only to current Log Cabin members. No, I’m not making that up.

In addition to opposing injunction, this filing illustrates that it is the intention of the Obama Administration to appeal the ruling. Irrespective of political speeches about support, the Administration will not be following Governor Schwarzenegger’s example and accepting the determinations of the court as to the policy’s unconstitutionality but will instead seek to retain their ability to apply the policy for as long as is politically expedient.

And, as if it was not at this point abundantly clear, President Barack Obama is not now – and has never been – a fierce advocate for our community.

LCR asks for immediate injunction on DADT

Timothy Kincaid

September 16th, 2010

From AP

Lawyers for the Log Cabin Republicans say their proposal filed Thursday in the Riverside, Calif., court asks Judge Virginia A. Phillips to impose a worldwide injunction on the “don’t ask, don’t tell” policy.

The government has a week to respond.

This puts the Obama Administration in a very awkward position.

UPDATE: From the LA Times:

Log Cabin Republicans attorney Dan Woods, from the White & Case law firm in Los Angeles, said leaders of the organization have been invited to discuss the case with members of the Obama administration in the next few days.

Where is the outcry?

Timothy Kincaid

September 11th, 2010

After Judge Victoria Phillips found the Military’s anti-gay Don’t Ask, Don’t Tell policy to be in violation of the First and Fifth amendments of the US Constitution, the usual wacktivists shouted their indignation. But other than the wackadoodle fringe, no one seemed to be either surprised or upset by the decision.

We are in the middle of a sprint to elections and I’ve not yet heard a single politician seeking to make an issue over the end of DADT. No indignant speeches from Senators demanding that the will of the people be upheld. Not even the cantankerous military chiefs are grumbling. Nothing at all.

Which – more than any announcements by the President or congressional leadership – tells us that this policy is dead. Over.

And if there is any doubt, consider the most telling (and amusing) line from a Washington Post article:

McCain’s office did not return requests for comment.

A few thoughts on LCR v. US

Timothy Kincaid

September 10th, 2010

Ari Ezra Waldman, writing at Towelroad, has an excellent assessment of Log Cabin Republicans v. US, the court case in which the military’s discriminatory Don’t Ask, Don’t Tell policy was found unconstitutional. He answers some common questions and helps one understand the legal complexities of the law.

In addition, I have a few observations about the case and the decision.

1. Had this case been one brought by an individual, it might have become one of specific circumstances. In other words, a win in court might have been so narrow as to only apply to that one individual (as was the case in Witt v. the Air Force). But because this was an organization suing on behalf of members, the case became one of the constitutionality of the law, rather than the application for an individual.

Further, Log Cabin Republicans may be uniquely ideal for bringing the case.

Often gay organizations are perceived (often correctly) as being part of a progressive ideology which is generally hostile to military action, military service, and military life. However, as an organization that has long supported “a strong national defense”, the Justice Department could not suggest that the plaintiffs were disingenuous or hypocritical and there are no anti-military statements out there which could be brought up in court.

The two gay serviceperson’s organizations also could have sued and probably had less challenge to their standing. But in the court of public opinion, Log Cabin Republicans may have a greater ability to appear principled and less like an angry ex-employee. Further, LCR is more immune to accusations of being far-left anti-military activists due to their name alone.

2. The finding of violation of the 5th Amendment is particularly important. This is a continuance of the recent trend to find gay people to be a unique class of people, as opposed to just a behavior. As gay people continue to be a class, any efforts to enact laws which restrict the equality, freedom, or rights of gay people will be held to scrutiny and, as they all are based in animus, tossed out.

This is key to our freedom. If we are just a bunch of folks who whimsically decide to engage in some behavior, then such a decision can be punished without being in violation of the constitution. But as gay people are recognized as individuals sharing a common immutable trait, then such laws are held to higher and higher standards and such animus becomes not only legally but socially unacceptable.

Servicemenbers: Do Not Come Out

Jim Burroway

September 10th, 2010

The Servicemembers Legal Defense Network warns gay and lesbian service members, including those in the Reserves and National Guard that yesterday’s ruling against “Don’t Ask, Don’t Tell” does not mean that the ban against gays and lesbians serving openly is lifted. Servicemembers are warned not to come out.

The deep-sixing of DADT is not a done deal, and it is unclear what practical impact this ruling will have at this stage. It may require further rulings in the Ninth Circuit Court of Appeals and possible the U.S. Supreme Court before the unconstitutional law is finally nixed. That’s why it is critically important that U.S. Senate Majority Leader Harry Reid place the Defense Authorization Bill, which contains language repealing DADT, on the September calendar before the Senate goes home ahead of the November elections.

Senate Not Off the Hook on DADT Repeal

Jim Burroway

September 10th, 2010

Despite yesterday’s ruling that “Don’t Ask, Don’t Tell,” the military’s ban on LGBT Americans serving openly, violates the First and Fifth Amendments to the U.S. Constitution, the U.S. Senate is not off the hook in its obligation to repeal the 1993 law. It’s not clear at this stage whether any injunction which may be issued by U.S. District Court Judge Virginia A. Phillips would be binding on the U.S. government nationwide. If not, then it could still be years before the case is decided by the U.S. Supreme Court, and that assumes that the Department of Justice chooses to appeal the ruling.

The Senate is still in its August recess. When it returns this month, there will be tremendous pressure to quickly wrap up work so Senators can go back home and hit the campaign trail in November. Senate Majority Leader Harry Reid is expected to announce shortly whether the National Defense Authorization Act, which currently includes DADT’s repeal, will be on the legislative calendar. If it is not on the calendar, then the repeal will not likely occur in the current Congress. Some two-thirds of all Americans approve of DADT’s repeal, including most Republicans. As Dan Savage says, if this fruit were hanging any lower, it would be a potato.

Update: A potato? Make that a truffle. Late last night, OneMan-OneWoman, an affiliate of the National Organization for Marriage, tweeted, “There is no need to prohibit gays and lesbians from openly serving in the Armed Forces. They should have the opportunity to serve.” [Hat tip: Joe.My.God]

Federal Judge Declares “Don’t Ask, Don’t Tell” Unconstitutional

Jim Burroway

September 9th, 2010

A U.S. District Court Judge in Riverside, California, declared that the law banning gays and lesbians from serving openly in the U.S. military violates the First Amendment rights of gay Americans:

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

The Judge’s ruling can be downloaded here. (PDF: 236KB/86 pages). Judge Phillips not only ruled that DADT violated the First Amendment guarantees of free speech and petition, she also ruled that the act violated LGBT service member’s rights to due process under the Fifth Amendment:

The 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.

The judge called for the plaintiffs to submit a proposed injunction to halt enforcement of the law by September 16th. The Department of Justice will have a week to submit their objections to the injunction if they choose to do so.

The case was filed by Log Cabin Republicans on behalf of LCR members including current, retired, and former members of the U.S. armed forces. LCR is justifiably proud of their accomplishment tonight:

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution,” said Log Cabin Republicans Executive Director R. Clarke Cooper.  “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

LCR v. DADT closing arguments go well

Timothy Kincaid

July 23rd, 2010

Closing arguments in the Log Cabin Republicans’ challenge to the Military’s Don’t Ask, Don’t Tell policy finished up today. Judge Phillips had announced that the Witt precedent would be used to determine what level of proof would be required and Dan Woods, for LCR, presented evidence and testimony accordingly. (National Law Journal)

Last month, Phillips set forth the standard of proof that both sides had to meet. She based it on the U.S. Court of Appeals for the 9th Circuit’s 2008 decision Witt v. Dep’t of the Air Force — that the policy is necessary to advance a legitimate governmental interest.

On Friday, Woods maintained that the policy served no such interest.

“Lawrence established that Americans have a constitutional right to engage in private, consensual homosexual conduct,” Woods said, citing the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, where the court found that state’s criminalization of private, consensual sodomy unconstitutional. “Don’t Ask, Don’t Tell infringes on that right, punishing individuals who engage in a constitutionally protected activity.”

During the trial, Woods introduced numerous reports and expert witnesses who concluded that the policy has done little to maintain troop cohesion. In fact, he said, the evidence showed that the policy disproportionately harmed women and noncombat service members. He noted that service members work alongside foreign militaries and private contractors, both of which permit open homosexuality.

“Our military will give a convicted felon a gun, but will not give a gay guy a typewriter,” he said.

Assistant U.S. Attorney Paul Freeborne, defending the policy, decided that arguing with the judge was a better way to make his case.

Freeborne responded that the due process and First Amendment claims fail “as a matter of law” because the Log Cabin Republicans brought a facial challenge to the constitutionality of the policy. That requires both parties to focus on the face of the statute and its legislative history — not the experiences of individuals, he said.

Phillips interrupted, disagreeing about the scope of the court’s review.

“The government’s argument it has made throughout this case and on which it has relied to contest the admission of nearly every exhibit, and most of the testimony, overlooks that the court is directed to look at the effect of the challenged statue,” Phillips said.

Freeborne said he would “respectfully disagree” with that analysis. He also disagreed that the Witt standard, which dealt with the circumstances of a single service member and not the statute as a whole, was appropriate in a facial challenge.

In defending the statute against First Amendment claims, Freeborne used the example of a witness who was not discharged even after coming forward about being hazed and harassed about his homosexuality.

“After enduring it for months,” Phillips replied.

While this sounds encouraging, we cannot assume that the judge will rule in our favor. But by all accounts, the testimony and arguments went well.

Log Cabin has asked Judge Phillips to impose an injunction halting the military’s unconstitutional “don’t ask, don’t tell” policy and, if appealed, to suspend the policy during appeal. That would be the best possible outcome of the trial at this level.

First hand report from the Log Cabin v. DADT trial in Riverside

Timothy Kincaid

July 22nd, 2010

I hope Karen Ocamb and LGBT POV will forgive me for lifting so much from Tom Carpenter’s excellent summary of the trial, but it is so concise and clear that I just couldn’t edit it. Tom is a lawyer and a board member of the Servicemembers Legal Defense Network.

The White and Case lawyers [representing LCR] have really outgunned the government and they have put on an excellent case.

I saw the end of fellow Naval Academy grad Jenny Kopfstein’s testimony and she brought tears to my eyes.

She was followed by Larry Korb who qualified well, and as a Reagan DOD Assistant Secretary of Defense was very impressive. His testimony was clear that DADT was wrong when it became law in 1993 and has reduced military readiness and retention, as well as unit morale and cohesion. The government didn’t lay a glove on him and he was able to take on the lawyer who was cross examining him. As a trial lawyer, he made me feel sorry for the young lawyer who was clearly out of his league.

Alex Nicholson, the executive director of Servicemembers United and named plaintiff, was next. He was his usual articulate self and very skillfully turned the questions on the government lawyer who was attempting to cross-examine him. The only hit he took was when the government had him admit he was only on active duty for 9 months and never received an Military Occupational Specialty as a linguist or human intelligence gatherer. Not much.

Alex was followed by Dr. Allan Okros, a retired Canadian 0-6 who has worked for the military in uniform or as a civilian for 33 years. He is an expert on personnel issues and was a contemporary of Charlie Moskos, the father of DADT. He testified about the cultural and ethical similarities between the Canadian Forces and the US. He described the lifting of the ban in Canada as a “nonevent.” Based upon that experience, he testified that, with proper leadership, the result would be the same in the US. He is one of the best experts I have seen on gays in the military.

The last witness I saw was Tony Leverde a former USAF SSgt. He testified about what it was like to not hide your sexual orientation at the same time as not violating DADT. He was respected by his peers and subordinates, most of whom knew or suspected he was gay, even though he never admitted it. He was able to testify over objection that his honesty and being himself actually improved his relationship with fellow service members and enhanced unit morale. Didn’t see his cross but from watching the Judges reaction she seemed impressed.

Today was closing arguments, and a judgment could come in a few months, well before Congress and the review committee and the President and the Chairmen of the Joint Chiefs decide at some unspecified time in the future that the Military may possibly be ready to allow gay men and women to serve openly.

LCR v. DADT testimony begins

Timothy Kincaid

July 16th, 2010

From the AP

Former Air Force Maj. Michael Almy took the witness stand to support a federal court lawsuit filed by a Republican gay rights organization challenging the constitutionality of the military’s ban on openly gay troops.

Almy said he had been honored as a top communications officer in the Air Force for his leadership skills in running an exemplary unit that helped maintain control over the vast majority of Iraq’s air space during the war.

After his tour, he returned to his base in Germany where he was called to his commander’s office and questioned about a dozen personal e-mails he said the Air Force discovered after a service member searched through his computer in Iraq.

Almy said his commander tried to force him to admit he had violated the “don’t ask, don’t tell” policy.

“We went round and round for approximately 20 minutes,” Almy testified.

Almy said he never admitted to the military he was gay and was careful to keep his personal life separate from his professional one. Still, after the meeting, Almy was told he was relieved of his duties.

Ya know, I feel bad for the person who signed up the defend their country only to find them self assigned to snoop through other people’s private email looking to make sure they are all to people of the right gender. Who wants that job?

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