We're not doomed! (On DoJ appeals of DADT/DOMA)

[HughMoran]

by Serpents Choice
Wed Oct 13, 2010 at 09:09:13 AM PDT

Yesterday there was a diary that blasted Obama for failing in his stated desire to be a "fierce advocate" of gay rights because the DoJ had filed an appeal of the district court decision finding DOMA unconstitutional. I posted a fairly lengthy comment on why this appeal was not only expected but desirable, and it was suggested that the Daily Kos community might benefit from a longer diary on the topic.

...


The DADT case is weirder. Log Cabin Republicans v. United States of America was heard by the United States District Court for the Central District of California. There was actually considerable pre-trial wrangling over the standing issue; LCR managed to produce one (and later, a second) person in the district who were affected by the law. As with the DOMA case, the judge here found for the plaintiffs. Where this gets weird is that she authored an injunction barring enforcement of the law by the military as a whole. Her ruling doesn't actually provide any sort of explanation as to why she's attempting to enforce a district court decision outside the boundaries of her district. If forced to guess, I'd assume the idea is that it would be impossible to enjoin DADT for central California without stopping it everywhere. I'm really not sure that injunction, in its current form, will survive appeal though; it's possible that this case will be stalled in the courts if the 9th Circuit tells her to try again, and not overreach her jurisdiction this time... Regardless, yes, this is going to be appealed (and I'm sure we'll see another round of "Obama throws gays under bus" blog posts and diaries).

We want these cases to be appealed. I know that the Supreme Court at the moment is no Warren Court (although they're much better on civil rights than corporate issues). But remember from above, appealing these cases is the only way (short of a working Congress) to get rid of these laws. In fact, back in August, GLAD even stated that they looked forward to an appeal in Gill, which will provide "the chance to argue in front of a higher court with a broader reach... an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." A DoJ that didn't appeal would mean that we could get wins in places like Massachusetts, but that it would be even harder and take even longer to fight these laws in other states -- we'd need new plaintiffs to start with, and we'd have to go through the often years-long process of a federal lawsuit in what would likely be less rights-friendly venues. Frankly, I would more have expected to see a refusal to appeal had the Republicans succeeded in turning the DoJ into an annex of their party; refusing to appeal Gill would have let them write off marriage law in Massachusetts as a lost cause while making it harder to attack the status quo elsewhere and giving them a wedge issue for later elections.

I'm not an apologist for Obama, and I'm not at all sure I can view him as a "fierce advocate" of gay rights (or much of anything, sadly). There are a LOT of things I think he could have done or handled differently, but appealing the DADT/DOMA cases isn't on that list. In fact, Rep. Lamar Smith (R-TX) has asked to be named a defendant-intervenor in the DOMA case. He believes that the government is actually on our side, and is intentionally throwing these cases in order to get the laws overturned. He wants to be able to defend them in place of the DoJ. That's what happened in California, where the state refused to defend Prop 8. The DoJ's defense in Gill was not what I'd call robust (they called no witnesses), but I still don't think there's any chance that Smith will be granted defendant-intervenor status. Still, remember that there are mechanisms out there to prevent the government from just throwing away laws it doesn't like without having them go through either the legislative or judicial process to remove them.

...

http://www.dailykos.com/story/2010/10/13/92357/007
________________________________________________

The diary entry is quite a good read - please read the entire article.

[Spazito]

1. Excellent read!

Thanks for posting this, it is very educational and informative.

Recommended.

[pnwmom]

2. So unless a favorable DADT decision is appealed and then upheld by SCOTUS

it won't become the law of the land.

Thanks, HughMoran.

[no limit]

6. lol. Actually that's not how it works. Right now her ruling is just as powerful as a SCOTUS ruling

the only difference is this can be appealed, whereas a supreme court ruling can't. But if they don't appeal this within the next 60 days it becomes the law of the land and is just as effective and no different than a supreme court ruling.

[pnwmom]

8. So you're disputing what the OP says?

"We want these cases to be appealed. I know that the Supreme Court at the moment is no Warren Court (although they're much better on civil rights than corporate issues). But remember from above, appealing these cases is the only way (short of a working Congress) to get rid of these laws. In fact, back in August, GLAD even stated that they looked forward to an appeal in Gill, which will provide "the chance to argue in front of a higher court with a broader reach... an opportunity to address the harms DOMA Section 3 causes to already married couples across the country." A DoJ that didn't appeal would mean that we could get wins in places like Massachusetts, but that it would be even harder and take even longer to fight these laws in other states -- we'd need new plaintiffs to start with, and we'd have to go through the often years-long process of a federal lawsuit in what would likely be less rights-friendly venues. Frankly, I would more have expected to see a refusal to appeal had the Republicans succeeded in turning the DoJ into an annex of their party; refusing to appeal Gill would have let them write off marriage law in Massachusetts as a lost cause while making it harder to attack the status quo elsewhere and giving them a wedge issue for later elections."

[no limit]

9. I'm absolutely disputing it.

The person that posted this told me in another thread that the reason this needs to be appealed to the supreme court is because we run the risk of the supreme court overturning the ruling.

Now think about that for a second. He/she thinks that the way to get around the risk of the supreme court ruling against this judge is to appeal this judge's ruling to the supreme court. You don't have to be a lawyer to understand how dumb that sounds. The only people that makes sense to are the hughmorans of the world.

[HughMoran]

15. So you didn't read the article

...and are continuing to split hairs over your interpretation of my comments in another thread.

OK, I am not the expert. Read the article.

[no limit]

17. Your article is bullshit.

[HughMoran]

18. That's a very compelling argument

Let me mull that over for a few. :patriot:

[no limit]

24. I pointed my argument out to you in this thread below and in that other thread

you not listening if not my problem.

If Obama does not appeal this ruling it becomes the law of the land. It's almost as valid as a supreme court ruling, the only difference is this can be appealed, the supreme court can't. And the only time that would matter is if the administration appealed this ruling.

Your OP is correct in pointing out that as precedent the ruling only applies to lower courts. But that does not matter because we don't care about precedent, all we need is this law to be struck down. After that point the only way for this to be challanged if in another state some person filed a case saying their rights were denied because gays are now in the military. As you I'm sure know that's a totally insane argument and would never fly in court.

So if they don't appeal this the ruling becomes the law of the land and will never be able to be overtunred. But like with everything else I'm sure you will be ignoring this.

[treestar]

84. The first sentence of your second paragraph is simply untrue

Law students of the first year can tell you that.

[no limit]

86. You're not a law student (atleast God I hope not). Stop pretending to be one

what I said is exactly correct. You are still not understanding what precedent means and what jurisdiction means.

[treestar]

107. You are making up a distinction that does not apply

I know what each of them is and said what they were. Has nothing to do with the fact one district does not bind another.

[treestar]

11. that is not how it works

The ruling only applies to the Central District of California.

[no limit]

14. That is total bullshit. Federal courts are just that, federal. Their rulings apply to the country

http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/DistrictCourts.aspx

[treestar]

25. No, they only apply in their districts

That link does not dispute that.

[no limit]

28. The link, if you had read it, describes how the federal court systems work

including telling you that they are part of th3 judicial branch of the FEDERAL government. The thing you are confused about is that these rulings do not set precedent in other states. That is absolutely true. But that does not mean their rulings don't become the law of the land, they do.

Did that clear up your confusion?

[treestar]

36. No, I'm not confused

I have experience with it. You are just wrong. That link said no such thing.

There are on some issues conflicts among the circuits, with different circuits deciding different things. That can be a reason the SCOTUS will take a case. How could that be if each circuit's ruling applied in the entire country?

[no limit]

40. Yes, you are confused. Your confusion is almost funny at this point

[treestar]

46. You are wrong. I am not confused.

You are making a ridiculously wrong statement and making yourself look dumb in the process.

[no limit]

49. I guess you still haven't read the link I gave you? Fine, let me quote some things for you

http://www.uscourts.gov/EducationalResources/FederalCourtBasics/CourtStructure/UnderstandingFederalAndStateCourts.aspx

"The jurisdiction of the federal courts is spelled out in Article III, Section 2, of the United States Constitution. "

Where in the constitution does it say that federal courts do not have federal jurisdiction?

Just incase you don't know what Article III of the US constitution is here is wikipedia for your enjoyment:

http://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution

Section 2 is really interesting:

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.



Still confused?

[treestar]

70. But the 94 districts are limited to their districts

That's why there are districts. And then up to the circuits, limited to each circuit. Then up to the SCOTUS, the only court with rulings binding the entire country.

[Name removed]

77. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[joeybee12]

Yeah, you are wrong...you are saying things obviously not true..

and stamping your feet aint' gonna make them true.

[treestar]

48. Look in the mirror on that one

It is simply wrong to claim there are no federal districts. Very uninformed. How would conflicting rulings be handled? It simply makes no sense.

[no limit]

51. Nobody is saying there are no federal districs. We are saying you dont know what that is

you dont understand what a federal district is and what it means. And in the process you are making a total ass out of yourself. Well done.

[treestar]

68. No, you are. You think you understand it but you do not.

A federal circuit has jurisdiction over the areas:

http://www.catea.gatech.edu/grade/legal/circuits.html

[no limit]

72. You do not understand what you post. THe links you posted say nothing of jurisdiction

just what courts handle what cases.

[treestar]

76. It's so basic!

The Central District of California to the Ninth circuit to the SCOTUS.

The Western District of Pennsylvania to the Third Circuit to the SCOTUS.

The Central District of Calif. cannot bind the Western Dist. of Penn.

[no limit]

80. What does what you just said have to do with what I am telling you?

Do you understand what jurisdiction is?

[treestar]

89. Yeah, it's which courts you can bring which cases to

Personal or subject.

The federal court has personal jurisdiction over the people in its district (though it can be very complex when talking about corporations and such)

The federal court has subject matter jurisdiction by either diversity jurisdiction or federal question.

There is no question here there was a federal question. the plaintiffs must have lived in California. So what, this case could have been brought by Missourians in a District Court in Missouri. Or any district. That district's ruling can only bind that district.

Your distinction has no effect here.

[grantcart]

50. That district Judge has authority for his district.

If another district Judge made a different ruling upholding DADT then Phillips ruling would be the law in his district only until an appellate court decided, and on a issue like this that has a significant impact on a federal agency it would probably be fast tracked to the SC.

At the SC they would prefer to lump all of the cases together that are in the system rather than make a decision on this particular case which might fail because of the particular arguments that were argued at the District level in the first place. There is some discussion whether or not this is the best case to take to the SC because of some problems with it including the question of standing.

For it to be 'settled' in the Courts you want to have all of the cases on the subject decided - pro or against - and appealed so that when it goes to the SC it will have the widest possible avenue of being overturned.

[no limit]

53. How would another court in another district rule DADT to be constitutional?

Explain the process to me. Who is your plaintiff and what is his claim of damages?

[treestar]

73. If the issue had not reached another district's courts yet, it

could decide for itself. Other district decisions might be persuasive, but they would not be precedent for that district.

[no limit]

82. I asked you for specifics. Who is the plaintiff and what is his or her claim for damages?

That is the only way it would reach another district's court. Explain the plaintiff and their damages to me. Because without that a case can not be brought before a district court.

[grantcart]

87. Not really sure if I understand your question

But

Federal Courts HAVE ALREADY found DADT to be constitutional 5 different times:

DADT has been upheld five times in federal court, and in a Supreme Court case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006), the Supreme Court unanimously held that the federal government could constitutionally withhold funding from universities if they refuse to give military recruiters access to school resources, in spite of any university nondiscrimination policies.<18>


So there are already competing district court decisions. All that would have to happen to undo the current decision is for another district court to rule on the same grounds as the previous 5 have.


Also there is a court tradition Called "The Judicial Doctrine of Military Deference" It is a tradition of deference by the courts to Congress and the executive in the organization and regulation of the military. So when we go to the SC we don't want the narrow arguments of a single case but as many cases as possible. We only have to win one to have the law overturned.

[no limit]

90. The rumsfeld case you quoted is not about DADT

I was asking you how a case that DADT is constitutional get heard in another district. Who is the plaintiff and what is that plaintiff's claim? Courts don't just decide on law without a case.

[grantcart]

103. The Rumsfield case was about upholding the legality of the "Solomon Ammendment"

In finding it constitutional the Court affirmed that DADT was constitutional.


I believe that there are dozens of challenges to DADT coming up through the courts, we hear about them on Rachel's show from time to time.

Anybody that has been personally harmed has "standing" to bring the case forward. The question of standing is critical for any Constitutionally related case. If the plaintiff doesn't have standing then they can't argue the case. The question of standing is considered by many to be particularly weak by 'Log Cabin Republicans' because they may not be able to demonstrate personal harm.

So to answer your question: Any service member who has been discharged because of DADT would have clear standing to challenge DADT.


You may be interested in this also:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547

[no limit]

110. Again, the "Solomon Ammendment" has nothing to do with the constitutionality of DADT

If has to do with the government being able to deny schools funding if they don't allow recruiters.

And I don't think we are talking about the same thing here. Yes, gay service members discharged because of DADT have legal standing to challange it. Nobody else does. Thats why if this judge ruled that DADT is unconstitutional as long as Obama doesn't appeal it will be the law of the land. Nobody has legal standing to bring a case that says DADT is constitutional. THat's not possible

[Spazito]

74. That is bullshit...

“A federal judge always has the power to declare a law unconstitutional,” said Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law.

“The interesting question concerns a nationwide injunction. On the one hand, I think she is on strong ground in doing so. On the other hand, one district judge doesn’t have the authority to bind judges in other districts or circuits. They can decide for themselves."

http://www.kansascity.com/2010/10/12/2306754/federal-judge-issues-permanent.html


The ruling of a District judge does NOT normally apply to the country, it applies only within their jurisdiction and for you to say otherwise is wrong.

As to this case, specifically, the appeal, I have little doubt, be on the question of jurisdiction and not on the constitutionality of DADT.

I went to the link you provided and it says nothing about a District judge's ruling being one that affects the whole country.

Edited to add link to article with Chemerinsky's comments.

[no limit]

83. The quote you posted says exactly what I said

She does not have power to tell other courts how to rule their cases. But her rulings apply to the entire country unless there is a conflic with another ruling in another district. A conflict in this case would not be possible.

[Spazito]

91. You stated, without qualification, that a District Federal judge's ruling applied nationally...

you did not point out the uniqueness of her ruling so what I posted is NOT exactly what you said at all.

Here is what you said:

"That is total bullshit. Federal courts are just that, federal. Their rulings apply to the country". Note no qualification involved in that statement.

[no limit]

93. Federal judge's ruilings DO apply nationally.

If the district court over turns that law the law is overturned in the entire country since it's a FEDERAL law.

What doesn't apply nationally is precedent. This is where the confusion, because of the dumb shit treestar is spewing, comes from. Other district courts can rule differently than this judge, and we would have a conflict and a higher court would have to be brought in. But until they rule differently this ruling stands nationally.

[Spazito]

98. It seems you and the founding founding dean of the University of California, Irvine School of Law

are in disagreement. I subscribe to his knowledge of the justice system, the limitations of the rulings of District Federal judges over an anonymous poster on the internet.

[no limit]

99. No, we are not in disagreement. Explain to me the disagreement?

Actually don't. See my thread here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9311525

Hope that clears it up for you.

[Spazito]

114. I saw your thread, you have an opinion....

I also read the informed opinion of a distinguished lawyer and Law Professor and if you can't discern how his and your opinions differ, I can't help you other than to repeat the distinguished Law Professor's words once again:

"On the other hand, one district judge doesn’t have the authority to bind judges in other districts or circuits. They can decide for themselves."

Just in case you did not read the article at the link I provided, I will add this:

"If the government appeals, the question will be whether a single district court judge can unilaterally invalidate the policy of the U.S. military that was enacted in 1993 and has caused years of debate."

[no limit]

115. I addressed this quote and I did read your link

He is saying that the district court in California can not bind courts in other districts. That means courts in other districts can still rule their own way. This is absolutely true and I never said otherwise. But any ruling from any district court applies to the entire country.

The problem is when 2 different districts rule 2 different ways. Then a higher court has to get involved. In the case of DADT that can't happen as I explained in my thread.

[pnwmom]

3. Happy to be the 5th recommend. n/t

[pnwmom]

4. self-delete (dupe)

[tularetom]

5. Sometimes the complexity of reality demands more than a gut reaction

Thanks for posting this, there's a lot more to it than I realized.

[no limit]

7. So a FEDERAL judge doesn't actually have any jurisdiction over the FEDERAL government?

Really now?

[treestar]

12. A Central district of Calif. judge has no jurisdiction outside the

Central District of California.

[treestar]

10. Thank you for introducing some sense into this debate!

[no limit]

13. Yeah, because if anything this OP just makes sense

Federal judges have no jurisdiction over federal government and the only time that decisions by federal judges matter is if the supreme court affirms them.

Call your high school government teacher, the son of a bitch lied to you.

[treestar]

27. Inform the million lawyers in this country of this

It will be of great interest.

You are wrong here, and at the point where you'd best admit it.

[no limit]

31. Lawyers don't need to be informed, they already know this.

Unless your lawyer happens to be this guy:



Federal district courts have jurisdiction over the entire country. Again, what you are confused about is precedent. Precedent doesn't matter in this case.

[treestar]

39. Federal courts do not have jurisdiction over the whole country,

except the Supreme Court! How can you say something that dumb so repeatedly? :rofl:

It wouldn't even work! How could conflicting rulings apply to the entire country! You are really losing it here.

[Name removed]

42. Deleted message

Message removed by moderator. Click here to review the message board rules.

[treestar]

67. . . .

http://books.google.com/books?id=vhe-PpGVz0kC&pg=PA134&lpg=PA134&dq=%22supreme+court%22+%22to+resolve+conflicts+among+the+circuits%22&source=bl&ots=AJLDpGkUWW&sig=7tG7qu9p5JSxz81IsigTIjiMEYE&hl=en&ei=eji2TPyQIoG8lQfU2dnsBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=%22supreme%20court%22%20%22to%20resolve%20conflicts%20among%20the%20circuits%22&f=false



http://books.google.com/books?id=V2Pk5HSZn9wC&pg=PA1403&lpg=PA1403&dq=%22supreme+court%22+%22to+resolve+conflicts+among+the+circuits%22&source=bl&ots=SWHmbHyO8g&sig=_NrahdepMrIPo1-wS3gffPRmLQY&hl=en&ei=eji2TPyQIoG8lQfU2dnsBQ&sa=X&oi=book_result&ct=result&resnum=4&ved=0CB4Q6AEwAw#v=onepage&q=%22supreme%20court%22%20%22to%20resolve%20conflicts%20among%20the%20circuits%22&f=false

http://www.law.cornell.edu/supct/html/00-973.ZO.html

http://www.mobar.org/journal/1999/mayjun/davis.htm

[no limit]

69. You just threw a whole bunch of shit out that doesn't in any way seem relevent

What do cases overturned by appeal have to do with what we are talking about?

I gave you a link above from the actual government and I spelled out the sections relevent to why you are confused. Did you read that?

[treestar]

79. They show there can be conflicts among the circuits

How can that be, if one circuit's decision binds all others?

[no limit]

85. One district's decision does not bind the others. I never said it did. Again, you are confused

other district courts can rule their own way. But their rulings are the law of the land. If there is conflict between what 2 courts ruled then a higher court must step in. But in this case there is no conflict nor is there potential for conflict.

[HughMoran]

116. You have no way of knowing that "nor is there potential for conflict."

That is such a stretch that you are repeating as gospel - it's just not knowable.

[no limit]

122. You keep ignoring why I'm saying this. Yes, I have a way of knowing it

because there is no plaintiff that can make a valid case that they have a right to damages because DADT was overturned. Simple as that.

[polmaven]

120. If one district decision

does not bind the others, then how can one district have jurisdiction over the entire country without involving the SCOTUS? If that was the case, then the very next case to come before a district judge could overturn this one. Simply because this matter has been decided this way, in this jurisdiction, doesn't mean no future cases will be heard. Only SCOTUS can stop it once and for all.

[no limit]

123. Yes, if this case came up in another district you would need a higher court to step in

but as I explained over and over and over and over again this is not possible in this case. Because you would need another case in another district that says DADT is constitutional. That means you need a plaintiff that has a claim for damages.

[HughMoran]

127. Exactly

[Prism]

16. What I love about these nonsense defenses

When it comes to war, rendition, torture, Guantanamo, the 4th Amendment, etc. ad nauseum, no one really says a word about the Constitution and this administration.

But when gay people start demanding civil rights, suddenly everyone's a constitutional scholar.

And we're not supposed to read a single thing into that. No, sir. Everyone's a neutral arbiter of law, straight down the middle, calls em as they sees them. It just so happens, surprise, on an LGBT issue that the administration should finally be cautioned about the Constitution.

Yes, let's not read anything into that in the slightest. No bias. It's all totally sincere. Some people just really, really love the law and the constitution. Sorry, gays.

Hilarious.

Transparent, too.

And always the same people, eh?

[joeybee12]

20. Agree...i want to rec your post and I now unrec this ridiculous OP...n/t

[FreeState]

21. +1

Sick of it too

[treestar]

29. There is absolutely nothing different going on here

Read the Kos Diary. Or geez, just get informed on the basics of the court system.

Cases went up during the Bush Administration on Gitmo, the government's claims that it could detain people without warrants, using the same processes and procedures.

Every federal case is subject to the same procedures - following the Federal Rules of Civil or Criminal Procedure.

[Name removed]

32. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[Donald Ian Rankin]

56. I take it you're new to DU?

"When it comes to war, rendition, torture, Guantanamo, the 4th Amendment, etc. ad nauseum, no one really says a word about the Constitution and this administration."

I do not think someone who had spend any significant amount of time on DU would believe this to be the case.

[Prism]

58. Oh, trust

When it comes to defending this administration, that is precisely the case.

[foxfeet]

61. Yet another poltergeist infestation.

Pretty soon the bric-a-brac will go flying around the room.

[QC]

102. Is there an iPhone app now that signals whenever someone posts the word "gay"?

That's the only possible explanation.

[foxfeet]

126. Yep, it's right next to the "Haunt" app in the iPhone store.

[grantcart]

104. Leading LGBT legal scholar disagrees with you:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

[donco6]

129. Jesus, no kidding. n/t

[hendo]

19. Unfortunately SCOTUS is an all or nothing

If they overturn DADT (which they might not do given the DoJ argument), then it stands as a constitutionally protected law. However, if they do overturn it everybody wins! :)

[VMI Dem]

22. Unrec for bullshit.

[ruggerson]

23. This OP makes no sense

First he admits that Judge Phillips' ruling covers servicemembers worldwide.

Then he says it wouldn't stand up under appeal.

Well, hello, if Obama doesn't appeal it, the law dies.

The circular flawed logic that some of these folks use is laughable.

[joeybee12]

26. An armchair constitutional scholar...

glad to see he presents his opion (not at based on rule of law) as fact.

[treestar]

30. It is error for a District Court to purport to cover anything world wide

One ground for appeal, also.

[joeybee12]

33. Why?

Back that up.

[treestar]

41. Why would a ruling of a District Court in California affect anything happening

in say Texas? It's so basic it's ridiculous we even discuss this.

[Cerridwen]

59. See post #57. n/t

[ruggerson]

34. It's currently the law of the land because the statute has been found unconstitutional

and if the administration doesn't appeal it, it's killed. Dead.

[treestar]

43. Only in that District

this is fact, live with it.

[ruggerson]

60. READ THE RULING

http://graphics8.nytimes.com/packages/pdf/13military/031111036345.pdf

READ THE NYTIMES:

"Tuesday’s ruling, in Log Cabin Republicans v. United States of America, could have a potentially sweeping impact, as it would apply to all United States service members anywhere in the world."


NOW STOP MISINFORMING PEOPLE.

[FreeState]

63. Wrong - read the ruling

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to 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 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

[no limit]

35. Yes, federal distric courts do not have jurisdiction world wide. But they do country wide

precedent and jurisdiction are 2 totally different things.

[ruggerson]

37. Worldwide simply means all US servicemembers

wherever they happen to be employed.

[pinboy3niner]

52. Okay, now I'm confused

Their jurisdiction is U.S. law. Seems to me that it's not a question of whether their jurisdiction is "world-wide." If a statute applies world-wide, and a fed judge has jurisdiction with regard to U.S. statutes, it would seem to follow that a jurist's ruling on a U.S. statute applies to the fullest extent of the statute's applicability.

I'm not a lawyer or legal scholar, but I don't see an issue of geographical jurisdiction here. If my layman's opinion is wrong, I'll be happy to be corrected.

[no limit]

57. I was giving him a hard time on the "world wide" thing

if a judge in a federal district court makes a ruling that ruling is the law of the land. The issue is precedent. His or her ruling does not have precedent in other states. But in this case that's ok, we don't need precedent. We just need this law to be overturned. The reason we don't need precedent is because there is no way in hell you will get a case in any other state that claims damages because the gays are now in the military. Any court, no matter how conservative, would throw that out.

[ruggerson]

64. exactly

so you concur that if the administration does not appeal this, the statue is dead.

[no limit]

65. Yup, absolutely. And the misinfromation in this thread is kind of funny

yet really sad at the same time.

[FreeState]

75. Its a pattern

I call it bullying

[grantcart]

44. lol well its very basic 101 Judge Phillips' ruling covers servicemembers worldwide

up until the minute another Federal Distric Judge makes an alternative ruling. At that point you would have two competing rulings and Phillips' ruling would cover his district only.

He explains in some detail how this is actually quite common and why you can't stop with a district judgement.

[treestar]

45. Exactly say the 5th Circuit in Texas decides this law IS constitutional

The illogic of claiming each district/circuit can make law binding in the entire country!

[no limit]

47. How could the 5th circuit in texas decide this law is constitutional

you are playing the expert here, explain the process to me from step one. Who is your plaintiff in that case?

[treestar]

94. Easily. Another plaintiff, this one in Texas, brings a case to a district

court there, and that court decides differently from this Calif. District Court.

http://www.catea.gatech.edu/grade/legal/circuits.html

Splits Among Circuit Courts

Frequently, situations will come up where one circuit court panel rules differently from another panel in another circuit on the same issue. Federal judges will generally rule the way that a previous court ruled on the same issue, following a doctrine known as stare decisis , a Latin term meaning "to stand by a decision". However, the judges in one circuit are not bound by rulings in another circuit. While an opinion written by a circuit court may be helpful or instructive, judges in a different circuit may choose to adopt a different approach in its opinion.

Circuit courts also tend to split because of geographical, political, or ideological differences. Different circuit courts have, over the years, developed individual reputations. Many commenters have argued that the Fourth Circuit, based in Richmond, Virginia, tends to be more conservative than other circuit courts. Other commenters have argued that the Ninth Circuit, based in San Francisco, California, tends to be more liberal than other circuit courts.

Splits among circuits are important because they usually signal future Supreme Court decisions. Often, the Supreme Court will move to resolve a split among the circuits, taking a case that will resolve, once and for all, the point of contention.

[Name removed]

96. Deleted message

Message removed by moderator. Click here to review the message board rules.

[treestar]

109. The same claim that the Calif. plaintiffs made

A similar group of LCRs or any group of gay people in Texas.

You are sounding like a bully.

[no limit]

111. Why would they have plaintiffs in another district for a law that no longer exists?

[treestar]

117. It still exists outside the Central District of California

Again, one district cannot rule for the rest.

[no limit]

119. Again, you are incapable of simple comprehension. They don't rule other districts

in the sense that they don't provide precedent in other districts. Other districts can still rule their own way.

But any ruling in one district becomes law in another district unless a conflict arises. As I already explained to you such conflict is not possible in this case.

[grantcart]

54. In your exhuberance you may have omitted a word or two because I can't quite

understand your specific point.


From the article however is a very non controversial explanation of how district courts and the appellate decision works

Each court only has jurisdiction over the area that it represents. Additionally, each court's rulings produce binding precedent only on lower (not peer) courts in the same jurisdiction. A district court ruling does not mandate that similar cases in other districts, or even in that district, will be determined the same way. A circuit court case determines a legal condition in the parts of the country served by that circuit court, but does not directly impact the territory of the other circuits or their cases. And of course, a Supreme Court cases is a (mostly) final answer to the question. Courts can and do pay attention to what other districts or circuits decide (called persuasive precedent), but there's no guarantee that they'll do the same thing. In fact, it's not rare for two circuits to disagree on an issue. When this occurs, a law may function differently in different parts of the country, despite being a federal law to begin with, a condition called circuit conflict or circuit split. For example, the 5th Circuit overturned a Texas law banning the sale of sex toys as violating the 14th Amendment, despite the fact that the 11th Circuit had upheld a Georgia ban challenged on the same grounds. Thus, until this conflict is resolved, the 14th Amendment "means" something different in Louisiana, Mississippi, and Texas (the 5th) than it does in Alabama, Florida, and Georgia (the 11th). The Supreme Court often takes this condition into consideration when deciding whether to accept appeals. On the other hand, if the Supreme Court does not accept the appeal (by granting a writ of certiorari), then the circuit court judgment stands for its circuit, but no binding precedent is created for anywhere else in the country.

[ruggerson]

66. Who has standing to appeal this, grantcart?

[grantcart]

71. I am not trying to be difficult here but if you read the article he spells it out in

great detail>


Only losers can appeal- winners won so they have nothing to appeal:

Also, remember that winners can't appeal. Each court case is centered around the particular condition of the plaintiffs. You have to have standing to bring or to appeal a court case. In part, that requires that you are personally affected by the issue you're suing about. If you win the case at any level then, for you, that situation has changed. You're not being hurt anymore. No more standing. It doesn't matter if people just like you in the next state over are being harmed in the same way you were being harmed; this is your case, not theirs. There is NO mechanism that allows someone to challenge a law that is unconstitutional unless they themselves have been harmed by it. The Supreme Court will never just review laws arbitrarily to toss them out. If we want DOMA and DADT gone -- and we do -- there are only two routes to that goal: Congress could repeal them (but we'd need a working Congress) or the government can appeal cases (or we could appeal, if we lost in the district/circuit, although we're not losing in these cases) on the constitutionality of those laws to the Supreme Court, which has the power to strike them. That's it.

The best outcome to eliminate DADT is by Congress.

The next best would be if all of the cases that are currently in the court system could get a judgement and then all of them would be combined into a single decision for the SC.

While this Judge has decided this case it doesn't follow that this is the strongest or best case that we want to go to the SC.

If we combine all of the cases currently being decided then when we go to the SC we would have all of the arguments (there are numerous ways to argue the case). If that happened we could lose 14 times and if we won only once the law would be overturned.

If we the SC rules on only this one case and we lose it might be some time before they would reconsider it.

[ruggerson]

88. This isn't rocket science

(and I'm not trying to be difficult either - I've always respected what you have to say, even when we disagree)

1> Judge Phillips' covers all US servicemembers worldwide.

2) She found DADT unconstitutional.

3) Her ruling means DADT is overturned, until and unless the administration appeals.

4) No one BUT the administration has standing to appeal.

5) If the administration declines to appeal andn Obama obeys the court order - the law is dead.

6) Since the law is dead, there is no law any longer for anyone to file a new case on.

7) So the argument that "some other judge somewhere" will reach a different conclusion is facetious.


Btw, what are your thoughts on Valerie Jarret referring to a dead, gay kid as having made a "lifestyle choice"?

[grantcart]

125. As the author points out another judge reaching a different decision

is not facetious but actually very common. It is the way that conflicting sentiments in the country raise constitutional issues so that they can be settled.

In fact an appellate court has already found DADT constitutional in Cook v Gates. Ultimately it isn't settled in the Court system until the SC settles the question. At that point it still isn't completely settled because that ruling only applies to the particular arguments of that case.

In fact 5 district courts have already ruled that DADT is constitutional so if a single district court's ruling carried much weight then Phillips wouldn't be able to rule the way that she did.

There is a larger strategic question here and it borders on two points.

1) If you don't appeal now you are simply delaying the inevitable appellate process. Better to appeal now in order to get it to the SC where a final decision is necessary.

2) There are numerous other cases already in the system from service people who are appealing their discharge. When you go to the SC you only need to win on one point to have DADT thrown away. Given the fact that there is a formal tradition in the SC to defer to Congress on military related matters the more cases that

[HughMoran]

128. +1

[HughMoran]

101. Excellent post grant!

Nice summary of the options available here.

[Catherina]

38. Unrec'd as offensive propaganda n/t

[grantcart]

106. Well LGBT scholars disagree with you

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

[Catherina]

113. Woohoo Grantcart! Catch up please.

Woohoo Grantcart! Try to attention to the court cases and catch up please instead of looking for any straw you can to prop up your window display.

[Cerridwen]

55. Title 28, Part IV, Chapter 85 - DISTRICT COURTS; JURISDICTION

Title 28, Part IV, Chapter 85 - DISTRICT COURTS; JURISDICTION

§ 1331. Federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

§ 1343. Civil rights and elective franchise

§ 1357. Injuries under Federal laws

The district courts shall have original jurisdiction of any civil action commenced by any person to recover damages for any injury to his person or property on account of any act done by him, under any Act of Congress, for the protection or collection of any of the revenues, or to enforce the right of citizens of the United States to vote in any State.

List of 9th Circuit Rulings (.pdf notice) and their national impact.

[no limit]

62. Facts dont matter to some people here, they'll just tell you you're wrong

and so is cornell

[Cerridwen]

78. I know. But those reading and not posting may learn. n/t

[Name removed]

81. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[riderinthestorm]

100. I'm learning. Thanks for this conversation. I keep hitting refresh to see the updated dialogue

Thanks everyone! Lots of good (and bad of course) info here but always great to have a lot of good debate about where this is going.

[Cerridwen]

105. Thank you for saying so.

Your reminder helps me to keep my cool and keep it from becoming personal.

:hi:

[ruggerson]

92. Please make this its own OP

people need to face reality.

[Stinky The Clown]

95. Hey you!

:smoooooch:

:hi:

[Cerridwen]

97. Hiya, sweetums!

:smoooooooocheroooonie: backatcha.

:hi:

[HughMoran]

118. Thanks for kicking

;)

[grantcart]

108. So its national until another District Judge disagrees and hands down

a competing decision.

At that point the policy in question would be overturned in the original Judge's district only until the decision was decided at the appellate leve.

Given that the decision has been found constitutional by 5 other district courts it seems prudent to settle the issue at a higher leve.

Indeed leading LGBT legal scholars agree that it is necessary to appeal:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

[Cerridwen]

112. So it will be the law of the land until your hypothetical happens...

if it happens. At which point it may make it to the Supreme Court...or not.

During which time, Congress may have legislated the removal of DADT...or not.

Why are you letting the perfect be the enemy of the good when the good could possible work until such time as the perfect can happen?

Let it stand and fix it later, fer crissakes.

[bvar22]

121. Good point.

Where have I heard THAT before?

"You're letting the perfect be the enemy of The GOOD!"
Let it stand and Fix It Later."

:patriot:

Oh, and Unrec.

[grantcart]

124. Because as explaine it will slow down the appeal process and undermine a stronger

case for the SC.

District courts have already validated the constitutionality of DADT 5 different times.


A better question is why do you want to keep it in limbo where one judge could at any time completely undo it?


LGBT legal experts who are familiar with appellate law want it appealled for these reasons.