With DoJ Almost Certainly Appealing DADT Ruling, Nobody Knows If Obama Thinks The Law Is Unconstitutional


Expect the Justice Department to appeal U.S. District Court Judge Virginia Philips's worldwide injunction of Don't Ask Don't Tell, if "senior administration officials" are to be believed. With 60 days to file an appeal Log Cabin Republicans v. United States of America, the government won't likely wait until the last minute, with an appeal filing coming as early as this week. As expected. But isn't President Obama all torn up about it?


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—  John Wright

Judge rules DADT discharge of Major Margaret Witt unconstitutional – she must be reinstated


A federal judge says the Air Force violated the constitutional rights of a highly decorated flight nurse when it discharged her for being gay, and ordered that she be given her job back as soon as possible.

U.S. District Judge Ronald Leighton issued his highly anticipated ruling Friday in the case of former Maj. Margaret Witt. She was discharged under the “don’t ask, don’t tell” policy on gays serving in the military and sued to get her job back.

In 2008, a federal appeals court panel ruled in her case that the military can’t discharge people for being gay unless it proves their firing furthered military goals.

After a six-day trial, the judge said testimony proved Witt was an outstanding nurse and her reinstatement would do nothing to hurt unit morale.

Pam’s House Blend – Front Page

—  John Wright

Florida Court Rules Adoption Ban Unconstitutional

In a major victory for lesbian and gay Floridians, the State’s intermediate Court of Appeals ruled in Florida Dept. of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. that Florida’s statute excluding homosexuals from adopting was unconstitutional under the Florida Constitution.  The unanimous three judge panel determined that the State of Florida, which defended the statute, failed to demonstrate that the statute had even the “rational basis” needed to uphold the law.

The plaintiff in the case was a gay man who provided foster care for two neglected children and then sought to adopt them permanently.  The Florida Department of Children and Families denied his request because of Florida’s law banning homosexual adoption.  The Department of Children and Families conceded during the trial that it would have allowed for the adoption but for the existence of the statute.  On top of that, many other groups of people are allowed to adopt in Florida.  Lesbians and gay men were the only group categorically excluded from adopting, but were still allowed to serve as foster parents or guardians.

The Court reviewed the evidence presented by the potential adoptive father and found it to be one sided in his favor.  The Court of Appeals quoted the trial court in its opinion, noting that “[t]hese reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children.”  The court also examined the evidence provided by the two experts for the Department of Children and Family Services and found them to be out of step with the scientific community and lacking in objectivity in their conclusions regarding lesbian and gay parents.  One of these experts was criticized previously for citing the work of a psychologist who was censured by the American Psychological Association for misreporting evidence regarding homosexual households.

This ruling is particularly significant for lesbian and gay Floridians because their state was the last in the nation with a law explicitly excluding adoption by gay men and lesbians.  This victory, pending the possible appeal, leaves Mississippi and Utah as the only states with adoption bans for same-sex couples.  State courts in Michigan have ruled that unmarried individuals may not jointly petition to adopt.  And in 2008, Arkansas voters approved a statutory ban on adoption and foster parenting by unmarried individuals cohabiting with a sexual partner. The Arkansas ban was declared unconstitutional by a county circuit court in 2010, but has been appealed to the state Supreme Court.  In Florida, a previous challenge to the ban under the United States Constitution was rejected in Eleventh Circuit Court of Appeals in 1994.  Governor Charlie Crist of Florida is considering dropping the state’s lawsuit defending the law and personally opposes it.  However, the Department of Children and Families reportedly opposes his position, and it is unclear currently whether the state will appeal this decision to the Florida Supreme Court.

Human Rights Campaign | HRC Back Story

—  John Wright

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

Yesterday Federal District Judge Virginia A. Phillips declared that the “Don’t Ask, Don’t Tell” law violates the U.S. Constitution’s guarantees of due process and free speech.  This landmark decision highlights the need for timely action for repeal by the U.S. Senate.

HRC President Joe Solmonese released the following statement:

“This federal court affirmed what the vast majority of the American people know to be true – that it’s time for the discriminatory ‘Don’t Ask, Don’t Tell’ law to be sent to the dustbin of history.  With this legal victory in hand, Congress is in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members.  With House passage already secured, the Senate can and should vote in the next few weeks to repeal ‘Don’t Ask, Don’t Tell’ and allow every qualified man and woman the chance to serve with honor.”

The Log Cabin Republicans (LCR), a national organization of lesbian and gay Republicans, brought a challenge to the “Don’t Ask, Don’t Tell” law on October 12, 2004.  Following years of tackling procedural questions and preliminary motions, the district court heard LCR’s challenge this summer, where the testimony of six discharged service members and seven expert witnesses was presented to the trial court by LCR.  After considering this evidence, Judge Phillips determined that DADT violates the due process and free speech rights of LCR’s membership.  Judge Phillips will issue a final judgment, which may block enforcement of the DADT law nationwide, in the next few weeks.  The government may appeal her decision to the U.S. Court of Appeals for the Ninth Circuit.  HRC applauds LCR for its commitment to overturning the unconstitutional and discriminatory DADT law.

While the constitutionality of DADT continues to be litigated in the courts, Congress is moving forward with repeal legislation.  On May 27th, 2010, with support of the President, the Senate Armed Services Committee adopted an amendment to the Senate FY 2011 Defense Authorization bill to repeal DADT.  The amendment was offered by Sens. Joe Lieberman (I-CT) and Carl Levin (D-MI).  Later that same day, Congressman Patrick Murphy (D-PA) offered an identical amendment to the House FY 2011 Defense Authorization bill that was adopted by the House of Representatives by a vote of 234 to 194.  The House passed its Defense Authorization bill on May 28th, 2010.  HRC’s members and supporters from across the country are calling for the Senate to vote on its Defense Authorization bill before the November elections and send the DADT repeal language to the President’s desk for signature.

Human Rights Campaign | HRC Back Story

—  John Wright

So DADT’s Unconstitutional. What’s Next?

Note: Cross-posted on Bilerico.

Yesterday a ruling was finally issued on the years-old LCR v. USA case declaring DADT to be unconstitutional and placing an injunction on discharges.  I still remember the day – after a meeting with Sen. John Warner – Alex was asked to be lead plaintiff on this case.  Both legislative and judicial repeal were a long shot at that point, so the attitude then was "why not?"  Always good to have a backup plan. 

Always good indeed.

Over the next day or so there will be many analyses of what the ruling means that will be much more clever than my non law school-trained mind could produce.  So I won't.  Ultimately what the analyses will say is that this doesn't stop discharges, yet, and the appeals process is very long. 

So what does this mean going forward into, say, next week when Congress gets back into session?  It means we use this to push, push, push for a September vote.

Now is not the time to show off your political prowess with flabergasted side-eyed sentiments like, "Ok, this is a good step forward, but it's Log Cabin, so…I just don't get them and their self-hating self-hatred.  Here's my diatribe as to why." This lawsuit is a good thing, and a positive product many accuse Log Cabin of not producing.  If you claim your opinion of Log Cabin is based on rational logic, then rationally you have to give them kudos for this lawsuit.  No, you do.  Seriously, cut the crap.

Now is the time, however, to use the hell out of this lawsuit.  How?  Three ways:

a.) Talk, talk, talk about it.  Use this as an example of how the courts are stronger than our advocates in Congress.  State that the only way to claim otherwise is to vote on NDAA in September.  Show that if the Dems want to claim any association with repeal of DADT, they had better push Congressional repeal this year.  Write a blog about how a sure way to de-motivate a base is to not jump on repealing DADT now.  There are many possible angles to talk about this, so do.  Keep this in the public psyche going into next week, as this will be key in determining how Congress goes forward with its September schedule.

b.) Call/write/whatever your Senator and talk, talk, talk about it.  Let them know that you fully expect them to take on this issue this year and not let them be outdone by the courts, and that not pushing for legislative repeal, now, would be very disappointing.

c.) Identify upcoming DADT repeal events and participate where you can.  I can tell you on SU's end we have our Final Assault lobby day in DC next Thursday (September 16), which is a great opportunity to demonstrate that we, as a community, are taking repeal this year very seriously, and that we know that no vote in September is very bad for repeal prospects.

Bottom line – the momentum for repeal has kicked up again at a very opportune time.  Let's not screw it up over petty in-fighting. 

Let's do this.

Pam’s House Blend – Front Page

—  John Wright


LA Times


Quotes from the decision here

A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don't ask, don't tell” policy violates the 1st Amendment rights of lesbians and gay men.

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…

The ruling is expected to intensify political pressure in Washington to act on legislation to repeal “don’t ask, don’t tell,” which remains stalled in the Senate despite support from President Obama and the Democratic congressional leadership.

Pam’s House Blend – Front Page

—  John Wright

Judge Rules DADT Unconstitutional

DADT2 x390 (Getty) I Advocate.comIn a case brought by the Log Cabin Republicans, a federal judge in Riverside, Calif., ruled in an 85-page opinion that “don’t ask, don’t tell” violates the First and Fifth amendments to the U.S. Constitution.
Advocate.com: Daily News

—  John Wright

BREAKING: Judge rules DADT is unconstitutional

The judge in the Log Cabin Republican’s case against Don’t Ask, Don’t Tell has issued her ruling. DADT is unconstitutional:

A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don’t ask, don’t tell” policy violates the 1st Amendment rights of lesbians and gay men.

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 issued 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.

Have to offer congrats to LCR. Wow.

And, is Obama’s DOJ, which lost this case, really going to appeal this ruling? Really.

Get this law off the books. It’s not only discriminatory. It’s unconstitutional.

UPDATE: The Judge ruled that DADT violates the First and Fifth amendments and the plaintiffs are entitled to a permanent injunction “barring its enforcement.” LCR has seven days to submit a “Proposed Judgment.” The DOJ will have seven days to submit its objections to that. Here’s an idea for Obama’s DOJ (maybe the DOJ’s so-called LGBT liaison Matt Nosanchuk can shop it around): Don’t object to the proposed judgment. Don’t ask for a stay of the judgment or the injunction. And don’t appeal this decision. Let DADT die.)

UPDATE 2: Here’s the statement from Servicemembers United’s Executive Director Alex Nicholson, one of the parties in the case:

“This is an historic moment and an historic ruling for the gay military community,” said Alexander Nicholson, Executive Director of Servicemembers United and a multi-lingual U.S. Army interrogator who was discharged under ‘Don’t Ask, Don’t Tell.’ “As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication.”

Thank you, Alex Nicholson.

UPDATE 3: Statements from LCR and its lawyer:

R. Clarke Cooper, Executive Director, Log Cabin Republicans & Liberty Education Forum

“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. Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

Dan Woods, White & Case partner who led the matter for Log Cabin Republicans

“We are delighted with the court’s ruling in favor of Log Cabin Republicans in this important case. The court’s opinion finds that “Don’t Ask, Don’t Tell” is unconstitutional, and the court will issue a permanent injunction preventing the government from further enforcement of this unconstitutional statute. This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.”

Here’s the decision:
Decision finding DADT is unconstitutional.


—  John Wright

Westboro Ban Ruled Unconstitutional

A federal judge rejected Missouri’s law barring groups like the Westboro Baptist Church from picketing at funerals for fallen military personnel.
Daily News

—  John Wright

Costa Rica’s Supreme Court calls anti-equality marriage referendum unconstitutional

More amazing news today from Latin America by way of Andr?s Duque:

OMG. What IS going on in Latin America! Just a couple of hours ago, the Supreme Court in Costa Rica ruled that a referendum scheduled for December 1st which would have banned marriage rights for same-sex couples was unconstitutional.

The article does not give the vote total but says that the majority determined that the issue of marriage rights was a judicial issue and not an electoral issue and that the rights of minorities should never be subjected to a referendum process where they might be subjected to the wishes of a majority.

Spanish language article here.

Pam’s House Blend – Front Page

—  John Wright