Finally, the end of "Don't Ask, Don't Tell"

[helgaleena]

It's not over until the fat lady sings. :sad: In the military all sorts of sexual behaviors have been sanctioned including providing brothels, all in the name of stress reduction. This issue addresses a tiny minority of those engaging in behaviors that could be categorized as homosexual but do not have any impact on one's effectiveness against 'the enemy'-- the ones who wish to be labeled gay.

In other cultures nobody doing these same behaviors is considered less of a macho man or less deadly. Some of these cultures are also highly militaristic.

The stress of being in combat is akin to the stress of being incarcerated and all sorts of sexual deviance can result. I don't expect this to have much impact on what happens in the House and the Senate. What makes that place work is very confusing.

 

[Bbucko]

As a non-American I am wondering: with the end of the DADT policy what are people supposed to tell?

They're not necessarily telling anything; it just means that they can serve openly.

 

[maxcok]

Well, one obvious option would be to make an appeal moot by scrapping DADT. But that wastes political capital, and Obama has just come out with some proposed tax cuts to win a few more voters. Because Congress is still like herding cats, he'd have to choose between which legislation he'd really like to get done in the next few weeks.

In theory, DOJ must defend the policy in court all the way up. How vigorously they choose to do it is another matter. But this isn't the first time DADT has been found unconstitutional. I don't recall offhand how the Clinton White House handled it. All you have to do is Google "Federal Court" and "Don't Ask, Don't Tell" to see the federal district courts that have chipped away at DADT. Judge Nickerson of the Eastern District of New York was one of the first.

None of the previous rulings really went anywhere (none got through the first appeal), and I don't really expect yesterday's to, either. The difference this time is the ruling -- or more accurately, the injunction that will be forthcoming later this month -- comes at a critical decision time for the policy, whose dismantling has already been more or less announced.

Gay marriage cases, gay adoption cases, gays in the military (DADT) cases, gay employment laws (ENDA)... it's all hitting at once. No wonder Tony Perkins seems to be in six places at once.

Thank you GF for your clear insight into the nuts and bolts of the legal process, as usual. Do you have any idea why this case has been dragging on for so long, when it was pushed, when/if/why it was allowed to languish?

I am unaware of any federal statute (or Constitutional amendment) requiring the executive branch to defend ALL federal laws in court. If max could point me to one, that would be fantastic.

If TomCat could point me to where I said that, that would be even MORE FANTASTIC!


p.s. Please note GF's reference to the waste of "political capital" that would be expended if Obama signed an executive order rescinding DADT. If you recall, that is EXACTLY the phrase I used the last time I explained this to you. Not only would it become a distractive issue guaranteed to dominate the media coverage and jettison other legislative initiatives; it would also engender resentment in the military ranks by usurping a process of dismantlement already agreed to, create a backlash among conservatives, and surely swing more seats in the House and probably in the Senate to the Republicans. Grow up and get real.

 

[Freddie36]

Bbucko, when I go to the US people always ask for details about things I don't really care about: are you gay? Are you "straight"? Bisexual maybe? Basically taking side on the basis of sexual practices. I suspect that is what is going to happen in the future US Army. The US Army will be segmented along these lines. It seems strange to me because an army is about cohesion for combat, not so much about defining people.

As most Europeans of my generation I did a military service that's why I am sceptical about the all thing I can see the strange environment that is likely to result.

Don't get me wrong I also think that banning people because they have sex with people of the same gender is equally ridiculous. Biblical prejudices have nothing to do with the battle field. Alexander the Great, Caesar, Frederick the Great of Prussia are illuminating examples from the past....

 

[gymfresh]

The stress of being in combat is akin to the stress of being incarcerated and all sorts of sexual deviance can result. I don't expect this to have much impact on what happens in the House and the Senate. What makes that place work is very confusing.

Hon, the stress of being in the House or Senate these days also rivals that of the battlefield or incarceration and leads to all manner of deviance, too. Trust me, I worked on the Hill.

 

[gymfresh]

I am unaware of any federal statute (or Constitutional amendment) requiring the executive branch to defend ALL federal laws in court. If max could point me to one, that would be fantastic.

You are right, there is no federal law as such requiring a vigorous defense in court of every federal law that is challenged. However, that is precisely the tradition, with a few easily categorized exceptions. This blog discussion is helpful in understanding what might happen next with DADT.

As President Obama has been careful not to publicly declare DADT to be unconstitutional in his view, merely stating that he disagrees with the policy, it is unlikely that DOJ will find any reasonable cause not to zealously defend the law.

It is my understanding that there was no really solid guidance on gays and lesbians in the military until the Reagan administration's DOD decided to codify the notion in 1982 that "homosexuality is incompatible with military service". This opened the shitstorm that led a decade later to Don't Ask, Don't Tell, Don't Pursue (DADTDP). Hard to believe that law is 17 years old already.

 

[gymfresh]

Do you have any idea why this case has been dragging on for so long, when it was pushed, when/if/why it was allowed to languish?

Part of the issue was docket backlog, but it's likely another factor was that the plaintiffs mounted a facial challenge to DADT rather than an as-applied challenge. The difference is that the former attacks a statute in its entirety and argues that it's inherently unconstitutional, and may result in an absolute striking of the law, whereas the latter alleges constitutional inconsistencies or illegalities in its application and seeks limited, appropriate redress.

Because of how momentous a facial challenge is, the court gives great deference to defendants in presenting bases for dismissal and for framing the case (like which scrutiny standard to use). Once these matters are decided and out of the way, the bench trial proceeds fairly swiftly -- in this case, it took 8 weeks.

 

[maxcok]

I am unaware of any federal statute (or Constitutional amendment) requiring the executive branch to defend ALL federal laws in court. If max could point me to one, that would be fantastic.

You are right, there is no federal law as such requiring a vigorous defense in court of every federal law that is challenged. However, that is precisely the tradition, with a few easily categorized exceptions. This blog discussion is helpful in understanding what might happen next with DADT. . . .

Just to clarify again since I'm being referenced in his quote, I don't believe I ever said what
TC has attributed to me. However, in view of GF's post it seems a rather insubstantial point.

I will of course stand corrected if TC can point to a statement that says otherwise.


[Edit: Thanks again for the good info and insight, GF.]

 

[Bbucko]

Bbucko, when I go to the US people always ask for details about things I don't really care about: are you gay? Are you "straight"? Bisexual maybe? Basically taking side on the basis of sexual practices. I suspect that is what is going to happen in the future US Army. The US Army will be segmented along these lines. It seems strange to me because an army is about cohesion for combat, not so much about defining people.

As most Europeans of my generation I did a military service that's why I am sceptical about the all thing I can see the strange environment that is likely to result.

Don't get me wrong I also think that banning people because they have sex with people of the same gender is equally ridiculous. Biblical prejudices have nothing to do with the battle field. Alexander the Great, Caesar, Frederick the Great of Prussia are illuminating examples from the past....

You're describing a phenomenon described in an article I read years ago deploring the tell-all/bare-all side of our culture. The article blamed talk-show hostess Oprah Winfrey for this, calling it (if I'm not mistaken) the "Oprah-ti-zation" of America

Your experiences as a foreign national and mine as a native born citizen obviously depart significantly. In fact, in all my adult life, only one person has ever grilled me regarding my sexuality, and that was in questioning on what the meaning behind the rainbow sticker on the back of my Buick was, in New Haven, CT, in 1999. She turned out to be something of a kook generally.

I honestly can't imagine where you were where the primary subject of every conversation centered around the gender of your sex partners; I'm not saying it didn't happen, but I simply cannot imagine the context. FWIW, I live in Paris for many years in the 1990s and have spent months in Spain, so I'm not entirely unacquainted with European mores.

I sincerely wish I could remember more about my Amsterdam weekend spent in 1991, but my memory is obscured either by AIDS dementia or lost in a cloud of hashish-laced cigarettes. I know it occurred but really do draw a total blank

The Christianist hysteria over LGBTs serving openly in the military is anchored in the American Culture Wars, which began in the 1960s, had a slight cease-fire in the 1970s and have grown increasingly ferocious ever since. In my optimistic stupidity, I honestly believed that Obama's election would have dampened them somewhat, but they're stronger now than ever.

I am well aware of historical precedent for military valor among those who act on their same-sex orientation: please don't condescend to me again. The USA is much larger, much more diverse and much much more self-aware than you give us credit for being, even with the great "unwashed masses", whoever they might have been, whose curiosity regarding your sexuality caused you to register such a strong opinion of us.

Your "unsure" status remains entirely your own concern in my entirely disinterested opinion, speaking as yet another American whom you've met in your assorted travels.

 

[gymfresh]

Basically taking side on the basis of sexual practices. I suspect that is what is going to happen in the future US Army. The US Army will be segmented along these lines. It seems strange to me because an army is about cohesion for combat, not so much about defining people.

As most Europeans of my generation I did a military service that's why I am sceptical about the all thing I can see the strange environment that is likely to result.

And being a soldier or sailor is about taking orders, not whining about your prejudices that make you comfortable or uncomfortable with who's in the next bunk or shower. :bad2: The Department of Defense tells you how to deal with these issues, and in today's all-volunteer military you either grow up and conform or go look for another line of work.

Speaking of which, the military is federal employment. It is plainly unconstitutional to deny an entire category of federal employment opportunities (combat service, defense translation services, etc.) to a class of US citizens based on other employees' religious or cultural biases. We don't say "Sorry, you can't be a federal auditor because you're black."

The only basis the UCMJ provides for separating gays and lesbians from active duty is that they are, or show natural inclination to be, sodomites. Well, the UCMJ does not distinguish whether your dick is in a male or female's butt or a male or female's mouth (or who's giving cunnilingus). There is a fuckload more sodomy going on among straight personnel than among gay, but it's only the gays who are losing their jobs and pensions.

The Pentagon needs to survey all the troops and ask, "Have you ever, while enlisted or commissioned, performed or received oral or anal sex? All who answer 'yes' must report themselves for court martial leading to general or dishonorable discharge."

Hey, it's only fair.

Since when is DOD policy based on how soldiers and sailors feel? :240: Is the tail wagging the unicorn?

 

[maxcok]

Are you high? :smile:

 

[Freddie36]

Bbucko did not mean to patronise you or anything just offered my external contribution based on my observations as a non_American...