The WSJ Law Blog reports here that federal district court Judge Virginia Phillips announced today that she issued a worldwide ban on the US military’s enforcement of the Don’t Ask, Don’t Tell (DADT) policy regarding homosexuals in the military–implementing her decision last month finding the policy unconstitutional.  From Ashby Jones’ post on the Law Blog, links to the Judge’s Order today and 84-page findings of fact and conclusions of law.  The order not only bans new actions but contains this startlingly broad direction to DoD:

Defendants United States of America and the Secretary of Defense [are ordered to] immediately . . . suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

This will obviously have an effect on congressional and executive branch efforts to slowly unwind DADT.  More to follow.

77 Responses to “Judge Issues Worldwide DADT Ban”

  1. soonergrunt says:

    Clueless newbie question–can a single Federal Judge do that? I thought that her order could only things within the jurisdiction of her court.
    I don’t have a problem with gay people serving. Anybody who wants to pick up a rifle is fine by me. Having said that, a Federal District Judge doesn’t have that kind of authority, does she?

  2. Cloudesley Shovell says:

    In my terribly limited experience, DADT was in practice mostly a ticket out of the military for relatively new enlistees who discovered a few months after boot camp that they didn’t want to be in the military for 4-6 years after all.

    Announcing their homosexuality (whether true or not) was an easy way to an early, and honorable, out. That’s why DADT discharges were significantly higher at training commands. It got so bad at once place where I served that a training command CO would require investigations, and would refuse to discharge people claiming homosexuality in the absence of some evidence other than the person’s own statement.

    I suspect that we will see an uptick in failure to adapt, good of the service, and pattern of minor misconduct discharges in the future.

  3. soonergrunt says:

    I suspect that we will see an uptick in failure to adapt, good of the service, and pattern of minor misconduct discharges in the future.

    This wouldn’t surprise me a bit.

  4. SWAH says:

    This is what some used to call “Salt Water Activated Homosexuality”, which encompased those members who “discovered” their propensity to engage in an alternative lifestyle in an effort to avoid deployment.

  5. Anonymous says:

    I have to ask the same question. Isn’t her jurisdiction/ruling limited to the confines of the 9th Circuit?

    Other circuits have ruled that DADT is Constitutional. I don’t think such a ban can be applied worldwide from a district court ruling.

  6. Mike "No Man" Navarre says:

    OKG, the judge’s job is to make sure the federal government does its job, so her jurisidciton is pretty much in their face.

    As for DADT in practice, I have to disagree with our dead Admiral and say that I have seen some excellent officers thrown out of the military based on the policy. At least one of them tried to hide the sexuality issue but found it difficult and unbearable to do so. Constitutional or not, I think in practice the ban has forced many quality officers out of the military.

  7. Presley O'Bannon says:

    I agree with the dead Admiral: in my practice I have only seen DADT used by a Marine who wants to be discharged. I am limited by my own experience, but I have never seen a homosexual Marine sought out, investigated and thrown out without essentially requesting it. Not saying it doesn’t happen, but I have never seen it.

    But that is why when I hear the often cited stat of x number of Arabic linguists being tossed out under DADT I tend to roll my eyes. You have servicemembers with a highly marketable skill, and also a high chance of repeated deployments, and lo and behold a high number of them “happen” to be tossed out under DADT by the cruel U.S. military

  8. Anonymous says:

    Nice Few Good Men reference, but isn’t her jurisdiction limited to the confines of the 9th circuit at best?

  9. Anonymous says:

    And you served where for how long? My point being that you likely saw a mere slice of the picture, certainly not enough to make a judgment either way.

  10. Christopher Mathews says:

    If the court has jurisdiction over the defendant, it can reach the defendant’s activities anywhere. Essentially, she’s saying that the U.S. Constitution prohibits enforcement of DADT, and if true, that would apply everywhere.

    As noted below, there is a split of opinion on the subject. I’m pretty sure the administration can take the ruling up on appeal and obtain a stay if it wants.

  11. John O'Connor says:

    Ninth Circuit stay coming in 5…4…3…2…1. All indications are that the administration will appeal the decision, as the DOJ traditionally defends federal legislation against constitutional challenges even if the administration disagrees with the law.

    In my mind, judicial review does not involve the judiciary rewriting legislation or ordering it stricken from the books (For an example, when the Supreme Court rejected court-martial jurisdiction over civilian dependents, the statute remained unchanged, but it couldn;t be enforced). So I have my doubts that the federal district judge can do anything more than enforce her decision as to the litigants before her and refuse to enforce DADT in any cases that come before her. That doesn’t mean that the judge won’t claim to be a roving commission with the power to enjoin actions involving non-parties in, say, Maryland, but I don’t think she has the actual power to do so.

  12. soonergrunt says:

    @Christopher Matthews–thank you, Sir.

  13. Anonymous says:

    but if another circuit has ruled DADT Constitutional, then a different Circuit can’t effectively overrule that, correct?

  14. Rob M says:

    My experience was the exact same. I was a basic training CO a few years ago- we were required to “substantiate” every claim by a kid that he was gay by calling his family and “friends” from back home. I had two guys claim it; one was legit and one was just trying to get an early out.

  15. Rob M says:

    7 years infantry, 3 duty stations, combat deployment- saw the exact same thing. Nobody goes on gay witch hunts, they come out of the woodwork- usually a few months before deployment- and out themselves looking for an HD. Frankly, commanders are too busy doing the important parts of their jobs to worry about finding the occasional closet homosexual.

    Speaking solely for myself, non-attributionally, I think it’s a pointless policy. But the right thing is for elected officials to actually take a stand and do something for which they can be held accountable, not wring their hands and hope the court system will do the hard work for them.

  16. Dew_Process says:

    No Man – I concur. I’ve had a couple of officer and NCO clients get tossed – to go back to an era when some of us practiced in – there simply was no “service connection” and 99% of their colleagues didn’t have a clue or care.

    PO’B – I was involved in one “linguist” case – he was specifically recruited because of his ability to speak 2 dialects of Arabic, no one asked, he didn’t tell, and so enlisted. But, he made no secret of his orientation and got the boot about a year into his enlistment after returning from Iraq.

    Won’t disagree that some may have found out that they could get out and triple an E-4’s salary translating documents, etc., for one of the many contractors.

  17. Anonymous says:

    I have had different experiences and it varies from commander to commander and base to base. For every unit where no one cares as long as you do your job there is another where someone is beaten for being gay or suspected of being gay and killed like Fort Campbell.

    There are a lot of folks discharged under this every year, do people really believe those folks who are now fighting to stay in or get back in, originally got out voluntarily because they wanted to avoid deployment?

  18. Mike "No Man" Navarre says:

    Disclaimer, I have not researched the scope of the Dist Judge’s power to enjoin DoD generally as part of the relief in this case. But, taking JO’C’s language where he concedes she might have the power to “enforce her decision as to the litigants before her,” isn’t DoD the litigant before her? Based on that reasoning why couldn’t she tell DoD (where ever it may be located), you can’t enforce this statute/EO because it is unconstitutional?

    I’ll concede though that the 9th Cir stay order is about as likely as JO’C taking the government’s side in a debate about capital courts-martial.

  19. John O'Connor says:

    By “as to the litigants before her” I mean in favor of these plaintiffs against this defendant.

    Heck, the U.S. has another court, one that wears the appellate daddy-pants, that says it CAN continue to enforce DADT.

    I analogize the situation to the geographic limitations on a district court’s contempt powers. Though the district court has jurisdiction over the litigants, there is a body of case law that says the judge can order arrest as a contempt sanction only if the defendant shows up in rthe district, that the court’s powers don’t extend outside the district.

    Again, I come back to what happens when a judge rules a statutre unconstitutional. When the judge issues his or her judgment, it’s not like somebody in the Government Printing Office dutifully reprints the statute to take out the parts found unconstitutional. What happenms instead is the statute remains as enacted, and simply is not enforced by the court in question and any other courts to which it is superior.

    Again, given the judiciary’s inherent tendency toward self-aggrandizement, I wouldn;t be surprised if this nationwide power to invalidate were found within a court’s powers. But it’s inconsistent with the notion that judicial review simply declines to enforce statutes found unconstitutional as opposed to statutory amendment by judicial fiat.

  20. publius says:

    It’s a matter of time before DADT goes away. Best if the political branches do it and not the courts. If it’s left to the courts, the case will likely be a mini-Roe v Wade: a poorly reasoned decision which serves primarily to keep the issue simmering for a long time. Regardless, policy makers at DoD better be thinking about second and third tier effects. Do the same sex spouses of gay servicemembers get benefits like tri-care and romantic space-a flights to Europe on leave? What are the procedures for handling gay sexual discrimination/harassment suits? Does “hate crime” legislation make its way into the UCMJ? Stuff like this will get ironed out eventually, but it won’t be without some speedbumps and ugly headlines. Once DADT officially goes away, we’re in for a bumpy few years.

  21. DMW says:

    Judge School 101: Think long and hard before you issue an order you can’t enforce, then don’t do it. Guess Federal District Court judges don’t attend that class, or Judge Phillips slept through it.

  22. Anonymous says:

    what’s interesting is that really smart attorneys can’t agree as to whether or not this court has the ability to do what it has ordered.

    I thought the answer was clearly no, but now I have no clue.

    This seems like something that ought to have a really obvious answer.

  23. Anonymous says:

    I think it happens during the lame duck session. Either the Dems lose the House or they don’t but even if they hold on, it’s going to be tight so now is the time to repeal if it’s going to happen.

  24. Anonymous says:

    I’m not trying to be overly critical Rob M but you are basically talking about a universe of two.

    Not exactly what one might call a large sample size, but ignoring all of that, it was still fifty-fifty.

  25. 8041 says:

    7 years infantry, 3 duty stations, combat deployment- saw the exact same thing.Nobody goes on gay witch hunts, they come out of the woodwork- usually a few months before deployment- and out themselves looking for an HD.Frankly, commanders are too busy doing the important parts of their jobs to worry about finding the occasional closet homosexual.Speaking solely for myself, non-attributionally, I think it’s a pointless policy.But the right thing is for elected officials to actually take a stand and do something for which they can be held accountable, not wring their hands and hope the court system will do the hard work for them.

    I have to agree, Rob M – and I’ve got another 17-years experience on you. I don’t personally have any problems with gays serving openly. Simply put, anyone who wants to carry a weapon into combat should be allowed, and would be welcomed by the great majority of service members. But, the fact of the matter is you really have to WANT to be discharged to be discharged. It has to be your mission. If it isn’t, no one is going to bother you.

  26. Anonymous says:

    You may want to ask Lt Col Victor Fahrenback if wanted to receive a dismissal. I know more than one combat proven officer who the military has spent millions on only to throw them out. Did anybody read/hear Secretary Gates presenation to Duke back in September (there is a widening gap between the military and the country). This will be interesting to watch.

  27. dirlayohtiff says:

    Technically, the court has a couple of different jurisdictional provisions that impact the order. First the court has to have some sort of jurisdiction over the defendant. In a case like this in district court, as a result of sovereign immunity, that would have to be by virtue of the APA. Then the court has to have jurisdiction to grant a remedy. Although courts have jurisdiction to grant injunctive relief, that relief can only amount to an order to follow the law and applicable regulations. Soooo, you can’t strike down a law and properly implemented regulations. Here comes the appellate beat-down.

  28. Anonymous says:

    so all of those folks who have been discharged are fighting it because they are liars?

    I mean after all they were only discharged because they really wanted it, so to come back and fight it afterwards must mean they are liars.

  29. Charles Gittins says:

    I feel a land-rush of discharge review cases and records correction cases coming my way. This is good news for my business! Thanks, Judge!

  30. Just wondering... says:

    I think that is not a fair statement as what has happened to some people and an overgeneralized statement. Not everyone “asked” to be discharged and really wanted it. I worked on both sides of this issue as counsel, as the legal advisor to commanders who are investigating/initiating discharge and also as a defense counsel representing people who are under investigation/had discharge initiated.

    My limited (there’s my caveat) experience is that yes, some people did in fact ask to be discharged and didn’t fight, even cooperating and providing additional statements, etc. Others were “outed” by someone and had no intention of ever disclosing their sexual orientation and wanted to continue to serve, but were discharged. In those situations, they would not be “liars” as you call them.

  31. Anonymous says:

    The real question is what will be POTUS/Holders stance. I bet there is no appeal from the Atty Gens office.

  32. Christopher Mathews says:

    The district court’s order enjoins a party over whom the court has proper jurisdiction (here, the United States government) from performings acts the court has determined are contrary to law. Unless the order is stayed pending appeal, it has to be obeyed.

    The fact that other courts have ruled differently makes it more likely such a stay will be granted; but yes, a single district court does have the authority to enjoin the government even outside the district in which the court sits.

  33. Rob M says:

    You’re right- not everyone who seeks a DADT discharge is doing it just to avoid deployment, and I”m sure that many if not most of them are in fact legitimately gay. There are also those who publicly out themselves- sometimes very publicly- and submit themselves to discharge in order to make their political point. I am personal friends with one such rather public figure who is fighting to get back in. Those individuals “invited” their discharge in order to bring attention to their cause and the general unjustness of the law. But either way they brought it on themselves.

    It probably was a bit hyperbolic of me to say that “no one” gets rigorously investigated and outed (especially now with regulations requiring an O-7 to initiate the investigation) but among the class of DADT discharges, those who are involuntarily discharged are a tiny portion of the total.

  34. Rob M says:

    And, to reiterate, I’m not defending the policy at all. I just wish that this ban on its enforcement didn’t come from the Article III branch.

  35. Anonymous says:

    So it took what, 17 years for a judge to “determine” this was unconstitutional?

  36. Rob M says:

    Those were the only two I personally dealt with as a commander; I’ve “observed” other cases as well. But you’re right- it was fifty-fifty. Even that ratio seems way too large to justify the continued existence of this policy. To analogize, if for every single parent who legitimately could not provide for their child and was discharged for failure to complete a family care plan there was one who saw an easy and early way out of an enlistment and didn’t even bother to try to make a FCP, that would still be way too many people “gaming” the system.

  37. Christopher Mathews says:

    Not quite as long as it took to determine that laws prohibiting interracial marriage were unconstitutional, but yes.

  38. Anonymous says:

    It’s not a dtermination; it’s activist insertion.

  39. Anonymous says:

    right, because it they’d ruled it Constitutional then it wouldn’t be “activist” even though either ruling is the exact same process.

    I’m pretty sure we solved this issue with Marbury v. Madison. Judicial review of the Constitutionality of laws is not “activism,” it’s their job.

  40. Anonymous says:

    A. Proof for your assertion please.

    B. Why is one co-equal branch of government inferior to another? Would it have been preferable to wait for Congress to legislate against separate but equal or was it better for Brown v. Board of Education to rule when they did? Should we be glad Loving stopped laws against interracial marriage or should we have wished the legislative process eventually got around to it.

    If folks want to argue that DADT is necessary and Constitutional, that’s fine. I don’t agree but those are valid, fair attempts at defending the process. However, there is little convincing about complaining that this is being done judicially rather than legislatively.

  41. Christopher Mathews says:

    Unfortunately, the term “activist judge” has largely come to mean “judge who made a ruling with which I or my political party disagree.”

    It’s shorter, I suppose, but somehow less descriptive.

  42. publius says:

    I mentioned Roe v Wade above regarding your point. Much of the anger and controversy regarding abortion stems from this poorly reasoned decision. Abortion is a fraught issue, certainly, but if its resolution had come about via the political process rather than judicial fiat, it would likely be less a consistently poisonous feature of national politics. Why? Because the people, or more properly their elected representatives, would have had their say and contributed to the resolution of the issue. There would simply be less room to bitch about the decision. It’s easy to bitch about “activist” and “imperious” judges. That criticism both distracts from and negatively informs discussion about the issue itself. So too w/DADT, I fear. If the judiciary strikes it down by fiat, we’ll be arguing about gays in the military for another generation or more.

    Brown is inapposite. Southern states were ignoring the only reasonale reading of the 14th amendment. It didn’t create a new constitutional right ala Roe– “privacy” (emanations and penumbras, etc). Loving more or less tracked off of Roe, or at least its latter day constitutional right to privacy. Maybe Roe and Loving represent progress, and maybe judges must provide a bit of leadership to drag the benighted masses into the uplands of enlightenment. But doing so is extra-constitutional and anti-democratic.

  43. publius says:

    II was wrong about Loving above. Apologies. Loving came before Roe and was decided on different grounds, which were much more similar to those of Brown. No new rights created. So, like Brown, inapposite.

  44. publius says:

    I’m wrong about Loving above. It came before Roe and was decided on grounds much nearer to Brown. No new rights created. So, like Brown, inapposite.

  45. publius says:

    Wrong about Loving above. It’s pre-Roe, and closer to Brown. No new rights. So, like Brown, inapposite.

  46. long live the death of DADT says:

    My experience as a DC was that the command initiated the vast majority of the witch-hunts. All of my clients (no less than 10) wanted to continue to serve, but most were booted with honorables just because the homophobes on the board were homophobes. As an SJA, only 1 corpsman claimed to be homosexual, but that was his way of trying to get the boot so he could continue seeing the fine lady nurse he was fraternizing with. They both got fried.

  47. ksf says:

    Just like Mr. Gittens to see a pot of gold at the end of the rainbow. What kind of effect could this have on getting separations overturned?

  48. Scott says:

    The district court’s order enjoins a party over whom the court has proper jurisdiction (here, the United States government) from performings acts the court has determined are contrary to law. Unless the order is stayed pending appeal, it has to be obeyed.The fact that other courts have ruled differently makes it more likely such a stay will be granted; but yes, a single district court does have the authority to enjoin the government even outside the district in which the court sits.

    The district court’s order enjoins a party over whom the court has proper jurisdiction (here, the United States government) from performings acts the court has determined are contrary to law.

    But what about with regard to the other party (LCR? Recognizing that the argument may eviscerate the injunction, isn’t there law to support the notion that the court effectively enjoined the enforcement of DADT only for the members of the Log Cabin Republicans?

  49. Anonymous says:

    “Gul-gul-gul…..Ohk….” That Kool-Aid sure goes down roughly!

  50. Anonymous says:

    My favorite flavor is “living document.”

  51. Anonymous says:

    Got some news for you. SCOTUS will fix this unless Congress acts first. SCOTUS has a long history of deference to the Congressional/Executive arena in military matters. If Congress changes DADT before this case winds its way up, then that will be left undisturbed. If they don’t SCOTUS will bounce this judge. Write it down.

  52. Christopher Mathews says:

    The short answer, Scott, is “no.”

    The court determined that the government’s enforcement of DADT violates the constitution. The order prohibits further violations as to any persons under the government’s jurisdiction. The government, having litigated the consitutionality of DADT and lost, is now bound by its loss, even as against future plaintiffs not part of the original litigation, under the doctrine of collateral estoppel (sometimes referred to as “issue preclusion”).

    The LCR are seeking their attorney fees and costs of suit; the court granted them leave to pursue those claims in paragraphs 4 and 5 of the order. Those paragraphs are the only parts of the order limited to the named plaintiffs.

  53. Bridget Wilson says:

    Over the decades, having assisted literally hundreds of service members in DADT cases and under preceding policies, my observation is that although there are a number of individuals, junior enlisted seeking separation most of the individuals I have consulted have not been seeking separation.

    Assuming the more accepting attitudes in recent years (unless you see what I see) a sampling of the cases I have seen in perhaps the past five years:

    An officer granted immunity from criminal prosecution and compelled to testify in the court-martial of another officer accused of assaulting him. That information was used to remove him from service.

    Emails that are clearly private used to initiate separation.

    Trial testimony in a child custody case forwarded to the command. The individual’s sworn testimony is a pretty reliable source for these purposes.

    Numerous false accusations of misconduct which were effectively rebutted but brought forth the sexual orientation of the accused.

    Consulted with other service members re their legitimate fears that testimony in a criminal court as a prosecution witness in both hate crimes and in one murder trial could endanger their career. BTW, the answer to that question is “yes”. The recently revised “more humane” provisions of the DODI do not grant any protection for truthful testimony in court. That can still be used against you.

    Y’all are naive if you think the only people who get booted are those who choose to be booted. Many of those who are caught up in DADT have worked to stay concealed. And, many of those who “volunteer” to get out are simply fed up with the stress of concealment and the isolation.

    In re the BCNR applications-even assuming this decision flies, I doubt that will be automatic. For any separation that is pre-Lawrence, and really those since, the separations were valid at the time executed. So, they are still valid. I would have to look at retrospective effect of this decision, assuming it survives appellate scrutiny.

    Could an individual otherwise still qualified for service seek re-enlistment/appointment if this all stands? I would say yes. That RE-4 code would have to be waived or corrected. But, assuming honorable separations, the separations were valid at the time issued. That will be interesting and I anticipate having some work in that area.

  54. Anonymous says:

    yes, rather than believe the Constitution has wiggle/breathing room aka living document, we should instead believe that the Founders (a collection of folks who themselves disagreed wildly about what to put in the Constitution thus why we have in many places such a compromise/vague document) anticipated every possible scenario 200+ years in the future and thus divine their “original intent.”

  55. Anonymous says:

    So to sum up, I agree with Brown, I disagree with Roe, therefore the former is proper Constitutional analysis and the latter is “judicial activism.”

    We would STILL be arguing about abortion today and we will STILL be arguing about DADT and gay in the military 20 years from now. We would have never come to a consensus on abortion with the laws changing with every change of parties in charge.

    Likely no different with DADT.

    As for being anti-democratic. A. We are not a democracy, we are a republic, and B. there is nothing “extra-constitutional” about a court ruling on the Constitutionality of a law. Marbury v. Madison, judicial review was decided way back then.

  56. publius says:

    Brown recognized, regarding education in the South, what had been the plain language of the 14th amendment for nearly a century. Roe created a right to privacy where none had ever existed. Insisting no distinction exists between them beyond that derived from a particular person’s poltical inclinations is, at the very best, disingenuous.

    The democracy/republic distinction is obvious, but more sadly for you, a non-sequitur. If I had argued that a federal statute banning abortion was anti-democratic, you might be on to something.

    The reach back to Marbury v Madison is less incoherent, but I’m not sure precisely how it applies here. My argument, both re Roe and DADT, is not with the principle of judicial review but with the proclivity of judges to find/create constitutional rights where none had been before.

  57. publius says:

    Above addressed to anonymous @ 1552.

  58. publius says:

    Also, in mine @ 1531 scratch “political inclinations” and insert “personal preferences”.

  59. Christopher Mathews says:

    Isn’t that a logical consequence of the Ninth Amendment?

  60. any mouse says:

    It does have breathing room, it is called an amendment.

  61. publius says:

    Logical consequence? I’m not sure. A search for the logical consequences of the ninth amendment would lead to histories of the Constitution’s ratifying debates, the Federalist papers, and the anti-Federalist papers. Logically, those rights which were put forth as belonging to “the people”, but not ultimately enumerated in the Consitution itself, would exhaust the parameters of the ninth amendment. I don’t think we’ll find a right to “privacy”, which encompasses the right to abort a pregnancy, there. Nor are we apt to find a right to serve in the military.

    But we’re not really using strict logic here. We’re using 21st century statutory interpretation. Vague and indeterminate as it is, the ninth amendment is an excellent weapon for the aggrandizement of the judiciary.

  62. Christopher Mathews says:

    So the Ninth is limited to things discussed in the Federalist papers and ratifying debates? Seems the Founders would have said so, if that was their intent. Originally, I mean.

  63. Anonymous says:

    an amendment would be a way to change the Constitution in a new direciton, not a manner in which to deal with interpreting what is presently there.

  64. Anonymous says:

    The right to privacy never existed? Because ignoring the 9th amendment for the moment, I certainly have a hard time understanding elements of the 1st, 3rd, 4th, or 5th amendments absent a right to privacy of some sort.

    As for the republic/democracy point, it reflects that we have anti-democratic elements purposefully part of our governing system, so stating “it’s undemocratic” without more is, to use your words, a non-sequitur.

    The “reachback” is that both decisions involved judicial review. Therefore, the act of reviewing is not “activists” it is part and parcel of the function of the court. Similarly, the fact that the court then makes a decision one way on that review makes it no more or less “activist” then making it the other way, simply because you agree or disagree with it.

    While Roe may or may not be poorly written, and it probably is, the idea that no concept of privacy existed as a Constitutional precept is ridiculous IMO.

  65. Anonymous says:

    well being strictly logical, might not say Spock find that being secure in our papers and persons might implicate some sort of right to privacy? Or to practice our religion as we see fit? Or not to testify against ourselves? Or not to be forced to quarter soldiers in our homes?

  66. publius says:

    Who said the ninth amendment was so restricted? Not me. The emanations from its penumbras, as the saying goes, are many and illuminating. Few of them, however, are logical.

  67. publius says:

    anonymous @ 2039: Sure, they might. But the implication goes no farther than that necessary to redeem the enumerated right itself. Their enumeration does not establish some grand unified theory of “privacy” which later, wiser generations must redeem by expansion. In fact, the opposite is the better argument. There is no overarching right to privacy. Rather there are certain areas of private life- security of papers and persons, religious choice, non self-incrimination, no compulsion to quarter- which are so important that they are specifically listed and protected. All other areas of private life are subject to the political process as laid out elsewhere in the Constitution.

  68. Anonymous says:

    They are not “enumerated rights” The Constitution and the first ten amendments, while called the bill of rights, still at their core talk more about what the government can’t do, then what rights are or are not.

    The very concern behind the 9th amendment was the idea that folks would look at the other amendments as a restrictive listing of granted rights.

    So your idea that we have to have an actual enumerated, specific right to privacy is the reverse of the intent here. Better question is, where in the Constitution does the government have the authority to invade the personal reproductive choices of women.

  69. Greg says:

    The Fourth Amendment begins:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

    Now, you could please enumerate what a person’s “effects” – does and does not include? The Fourth amendment certainly sounds like it is guaranteeing a right to privacy. Sure, the framers of the Amendment would not have used that term – but we can – because they mean the same thing.

    And frankly, any comparison between Roe and the Log Cabin case would be completely inapt. Those who oppose abortion do so, not because the Supreme Court – instead of Congress – made abortion legal – but because they believe that abortion is murder. So it is the high passions – and scant room for compromise – that makes abortion such a volatile, long-lived issue in this country.

    The DADT policy has no analog to murder or to any other heinous crime. And about the only people affected by DADT (and therefore who care whether it goes or stays) are those who serve in the U.S. military – which is a small minority of the population. Furthermore, those with strong feelings on DADT are themselves a small minority within that small minority.

    So will we be arguing about gays in the military 30 years from now? Not likely. I doubt that anyone will even remember this issue even one year from now.

  70. Rob M says:

    It’s not a matter of inferiority, it’s just a wish that the branch with the power to make regulations for the land and naval forces had the courage to do the right thing. It would have been better for Congress to legislate against separate but equal- BEFORE the Court had to step in with Brown v. BOE. It would have likewise been better for state legislatures to repeal anti-miscegenation laws BEFORE the Court had to step in with Loving. It’s not better to wait until the legislatures “get around to it,” it’s better for the legislature to do the right thing NOW rather than wait and see if/hope that the courts will do it for them. The process matters, as does the end result.

    W/r to (A) I have no statistical proof, I (as is nearly everyone else on here) am basing it on my personal observations. Maybe I’m wrong- I’m open to correction. My original point was that DADT is a pointless policy that has done more harm than good, including its second-order effect of providing an “out” to servicemembers who want to ditch their enlistment contracts early. I also agree with the general sentiment of “who cares if they’re gay,” and believe that if someone who is qualified wants to pin a flag on his shoulder and get shot at, who the hell has the right to tell him “no.”

  71. publius says:

    Best question in that case is, where in the Constitution does the government have the authority to look the other way when innocent human beings are murdered?

    See how brutal this can get? My point throughout is that the broadest possible consensus on this issue (and, on DADT) is best for the nation at large, and that such a consensus simply cannot be derived from judicial fiat. The political process, however imperfectly, at least allows for such a consensus.

  72. publius says:

    Greg-

    You’re probably right that abortion stirs passions more fundamentally than gays in the military. Roe didn’t help cool those passions. Quite the opposite. A cconstitutional amendment allowing abortion– probably the only Congressional action that could address the issue, unless the Commerce Clause’s jurisdiction granting powers are stretched beyond their current expansiveness into outright absurdity– might be as ineffective in cooling the passions. Returning the question to state legislatures, however, has the best chance to cool those passions, since local communities can determine for themselves what standards are or are not appropriate in their communities. That may seem regressive at first blush, but I think we might all be surprised just how state legislatures deal with the issue.

    Notwithstanding abortion’s stronger emotional punch, gays in the military resonates much father than you credit. It’s a symbolic issue– in a positive sense to some, in a negative sense to others. Its resolution, one way or another (and for what it’s worth, the repeal of DADT is, I think, as wise as it is inevitable), should be accomplished with as broad a political consensus as possible. I hope no one’s debating DADT in a year. I fear high-handed judicial fiats make that unlikely.

    As for what “effects” mean in the context of the 4th amendment- “effects” may not exactly be a euphemism for “slaves”, but it certainly includes “slaves” in the definition. Pro-choicers looking for constitutional justification may want to be careful before embracing argument that the unborn child “belongs” to the mother.

  73. Anonymous says:

    There will never be consensus on abortion. Never.
    There might be consensus but if we assume for a moment that the judge is correct and this is unconstitutional then consensus be damned.

    You know there were actual riots and demonstrations after the civil rights rulings. Should black folk, of which I am one, have waited for consensus instead of having judges rule?

    Your response seems to be, ah well, that’s different, the judges were right then…which takes us back around again.

  74. publius says:

    re Brown and its progeny, the only reasonable reading of the 14th amendment was full access to all facilities. Plessy and the Jim Crow era were an abomination, with judges inserting themselves into a matter more similar to the Roe court (and, less dramatically thus far the DADT debate). Brown and Roe, as legal opinions, are worlds apart qualitatively. Brown is measured and vindicates the plain meaning of too long dormant constitutional protections. Roe is expansive and creates constitutional protections where none existed before. Thinking the difference between them lies only in the eye of the beholder is, charitably, disingenuous, as I mentioned above. Less charitably, it is ignorant.

    You take a rather dim view of the chances for consensus on abortion. I guarantee it won’t happen so long as Roe is controlling law. DADT is similar. Perhaps, ala Greg above, the emotional temperature around DADT is lower than abortion and therefore judicial fiat will not sustain, or even intensify, the rancor of those opposed. I’m less optimistic. The best scenario for proponents of DADT, and for the young men and women to whom its repeal will open the possibility of service, is for DADT to be repealed via the political process, which will necessarily provide broader consensus and sense of legitimacy than judicial fiat.

  75. publius says:

    re Brown and its progeny, the only reasonable reading of the 14th amendment was full access to all facilities. Plessy and the Jim Crow era were an abomination, with judges inserting themselves into a matter more similar to the Roe court (and, less dramatically thus far DADT). Brown and Roe, as legal opinions, are worlds apart qualitatively. Brown is measured and vindicates the plain meaning of too long dormant constitutional protections. Roe is expansive and creates constitutional protections where none existed before. Thinking the difference between them lies only in the eye of the beholder is, charitably, disingenuous, as I mentioned above. Less charitably, it is ignorant.

    You take a rather dim view of the chances for consensus on abortion. I guarantee it won’t happen so long as Roe is controlling law. DADT is similar. Perhaps, ala Greg above, the emotional temperature around DADT is lower than abortion and therefore judicial fiat will not sustain, or even intensify, the rancor of those opposed. I’m less optimistic. The best scenario for proponents of DADT, and for the young men and women to whom its repeal will open the possibility of service, is for DADT to be repealed via the political process, which will necessarily provide broader consensus and sense of legitimacy than judicial fiat.

  76. Just wondering... says:

    And to bring it back to the subject matter of the original posting, cnn.com is reporting that DOJ will be appealing the ruling and has asked for an emergency stay.

  77. Greg says:

    From the CNN story:

    Meanwhile, senior military lawyers at the Department of Defense directed military lawyers to stop any proceedings related to “don’t ask, don’t tell,” a Pentagon spokesman said.

    The staff judge advocate generals from the military services — the senior military lawyers — sent an e-mail informing the military to abide by the injunction.

    “The Department of Defense will of course obey the law,” said Pentagon spokesman Col. Dave Lapan, “and the e-mail noted that, in the meantime, the Department will abide by the terms in the court’s ruling, effective as of the time and date of the ruling,”

    So the question is: if the stay is granted, will the military resume DADT proceedings?