Federal judge: Military's ban on gays is unconstitutional

[one...two...tree 2,762]

AP

RIVERSIDE, Calif. - A federal judge on Thursday declared the U.S. military's ban on openly gay service members unconstitutional and said she will issue an order to stop the government from enforcing the "don't ask, don't tell" policy nationwide.

U.S. District Judge Virginia Phillips said the ban violates the First and Fifth Amendment rights of gays and lesbians. "Don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base.

In her ruling, Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services.

The Log Cabin Republicans, a 19,000-member group that includes current and former military members, filed a lawsuit in 2004 seeking an injunction to stop the ban's enforcement. Phillips will draft the injunction with input from the group within a week, and the federal government will have a week to respond.

After-hours e-mails requesting comment from U.S. Department of Justice attorney Paul G. Freeborne and from the Pentagon were not immediately returned Thursday.

The lawsuit was the biggest legal test of the law in recent years and came amid promises by President Barack Obama that he will work to repeal the policy.

The Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

"This decision will change the lives of many individuals who only wanted to serve their country bravely," said the group's attorney, Dan Woods. Woods argued during the nonjury trial that the policy violates gay military members' rights to free speech, open association and right to due process as guaranteed by the Fifth Amendment.

He said the ban damages the military by forcing it to reject talented people as the country struggles to find recruits in the midst of a war. Lawyers also submitted remarks by Obama stating "don't ask, don't tell" weakens national security.

Freeborne had argued the policy debate was political and that the issue should be decided by Congress rather than in court.

The U.S. House voted in May to repeal the policy, and the Senate is expected to address the issue this year. Government lawyers also said Phillips lacked the authority to issue a nationwide injunction.

Six military officers who were discharged under the policy testified during the trial. A decorated Air Force officer testified that he was let go after his peers snooped through his personal e-mail in Iraq.

The officers who participated in the trial were "reacting emotionally because they're so proud that they were able to play a part in making that happened," Woods said after the ruling.

"It'll be an interesting decision for our president to decide whether to appeal this case. He's said that don't ask, don't tell' weakens national security, and now it's been declared unconstitutional," Woods said. "If he does appeal, we're going to fight like heck."

link

[Ban Hammer 13,360]

The Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

one is not fired in the military.

Six military officers who were discharged under the policy testified during the trial. A decorated Air Force officer testified that he was let go after his peers snooped through his personal e-mail in Iraq.

sounds to me like he left his computer terminal unsecure - he coulda been prosecuted for that.

[one...two...tree 2,762]

one is not fired in the military.

What would you define it as in business terms? Forced resignation?

[Ban Hammer 13,360]

What would you define it as in business terms? Forced resignation?

officers can resign, enlisted cannot. maybe "contract cancellation" would be appropriate.

[one...two...tree 2,762]

officers can resign, enlisted cannot. maybe "contract cancellation" would be appropriate.

If you were told that by your civilian boss you'd be telling everyone you were fired. Talk about splitting hairs.

Edited September 10, 2010 by El Buscador

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If you were told that by your civilian boss you'd be telling everyone you were fired. Talk about splitting hairs.

Well, no. Think of it like a contract employee. Contract employees aren't fired. Their contracts are simply renewed or terminated. And sometimes, they are terminated prematurely. It's not a firing because you're not actually an employee.

[one...two...tree 2,762]

Well, no. Think of it like a contract employee. Contract employees aren't fired. Their contracts are simply renewed or terminated. And sometimes, they are terminated prematurely. It's not a firing because you're not actually an employee.

Military personnel are not contract employees. A comparison would be if Charles were a Black Water employee hired by the military and had his contract ended because he was a gay. That's the difference.

[Ban Hammer 13,360]

Military personnel are not contract employees. A comparison would be if Charles were a Black Water employee hired by the military and had his contract ended because he was a gay. That's the difference.

actually, yes they are. ever seen an enlistment contract?

[one...two...tree 2,762]

actually, yes they are. ever seen an enlistment contract?

Don't get caught up in the terminology. I'd like to see someone try to argue that military personnel are more like civilian contractors than actual employees.

[tmma 467]

Military personnel are not contract employees. ......

I have to disagree. An enlisted serviceperson signs a contract that agrees to a predesignated period of service. At the end of that period they either re-up ( renew the contract) or leave. They may get released from their contract prematurely due to illness/misconduct or whatever reason stated by by their branch of service.

Edited September 10, 2010 by tmma

[Danno 1,228]

What would you define it as in business terms? Forced resignation?

I thought it was called getting "discharged"....... I'm sure those gay soldiers are familiar with the term.

[Ban Hammer 13,360]

Don't get caught up in the terminology. I'd like to see someone try to argue that military personnel are more like civilian contractors than actual employees.

go join the military and you'll find out firsthand.

[one...two...tree 2,762]

I have to disagree. An enlisted serviceperson signs a contract that agrees to a predesignated period of service. At the end of that period they either re-up ( renew the contract) or leave. They may get released from their contract prematurely due to illness/misconduct or whatever reason stated by by their branch of service.

Well, Charles is arguing semantics. An involuntary discharge, IMO, is synonymous with being fired in the civilian world.

Here's commentary from a Military Attorney:

Military Law Attorney

If you are being involuntarily separated from the military, you have the right to challenge this action. An administrative discharge essentially amounts to being "fired" from the military. While such action does not technically amount to punishment, it can have significant adverse impact on your future career and on your entitlement to many veterans' benefits. In most cases, if you are being administratively discharged from the military, you have the right to present your case in a formal hearing to a board of officers or senior enlisted members, and you have the right to be represented by military or civilian counsel at this hearing.

The administrative discharge process is different for officers than it is for enlisted members. At the hearing, sometimes called a "show cause" hearing or a Board of Inquiry, officers also have the right to be represented by civilian counsel in addition to their appointed military counsel.

http://www.davidoliv...-Discharge.aspx

Edited September 10, 2010 by El Buscador

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Here's commentary from a Military Attorney:

Steven wins another one.

[twowls 217]

Steven wins another one.

And it only took 13 replies and a threadjack to get on with the actual topic! Oh wait...