SCOTUS refuses to uphold lower court ruling on DADT.

[dgibby]

Policy of DADT to be kept in place while case works it way through lower courts. Case may not reach SC for several years. (CNN)

[villager]

1. Ah, the masterful chess moves continue apace! Good thing we fought those lower court rulings!

n/t

[MattBaggins]

4. It will be like the abortion carrot and stick.

The Dem Powers That Be; have no intention of messing with what they see as a good GotV issue. They want to milk it for as long as they can. Too bad it's going to bite them in the ass.

[riderinthestorm]

5. Oh doncha know, it's going to get repealed by this lame duck Congress!

3 dimensional chess and all that....


:sarcasm:

[spanone]

2. color me shocked

[riderinthestorm]

3. Quelle surprise. nt

x(

ETA, a link would be good.

[dgibby]

26. It was breaking news on CNN and MSNBC.

I listed CNN in the op, as they had more info than MSNBC when the story broke.

[struggle4progress]

6. “Don’t Ask, Don’t Tell”: A Legal Analysis (Congressional Rewsearch Service 2009)

Jody Feder
Legislative Attorney
September 2, 2009

... This report provides a legal analysis of the various constitutional challenges that have been brought against DADT ...

Constitutional challenges to the former and current military policies regarding homosexual conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts have uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court’s 2003 decision in Lawrence v. Texas which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits ...

Although the Court has never directly addressed the constitutionality of DADT, the Court has considered cases involving allegations of discrimination by the military, as well as cases involving the rights of individuals who engage in homosexual conduct, and these cases are informative. Indeed, most federal courts that have rejected challenges to DADT have relied upon judicial precedents involving “special deference” to the political branches to affirm the “considered professional judgment” of military leaders to discipline or discharge a service member for homosexual conduct or speech ...

After Lawrence, however, the constitutional bulwark of Bowers has crumbled, arming opponents of Article 125 and DADT with an argument that current military policies abridge the due process right to privacy of service members who are gay. But to prevail in that argument, any future challenger may still have to demonstrate that findings by Congress regarding those policies defy minimal rationality, a weighty burden given the deference historically accorded the political branches in the management of military affairs ...

A tradition of deference by the courts to Congress and the Executive in the organization and regulation of the military dates from the earliest days of the republic. Motivating development of this constitutional doctrine was the separation of powers among the executive, judicial, and legislative branches. The Constitution grants exclusive authority to raise and support the armed forces to Congress, which has “broad and sweeping” power to make all laws necessary for that purpose ...

Originally framed as a doctrine of noninterference, the early Court avoided all substantive review of military disciplinary proceedings, provided only that jurisdictional prerequisites were met. A more skeptical judicial attitude emerged during the Warren Court era, which frequently questioned the scope and operation of military rules, particularly as applied to on-base civilians and non-duty-related conduct of service members. But the pendulum returned to what has been described as the “modern military deference doctrine” with a series of Burger Court decisions in the mid-1970s. Rather than abandoning all substantive review, the current judicial approach is to apply federal constitutional standards in a more lenient fashion which, with rare exception, favors military needs for obedience and discipline over the rights of the individual servicemen ...

http://fpc.state.gov/documents/organization/130271.pdf

[originalpckelly]

7. And we'll continue to be second class citizens in our own country.

[terrya]

8. I was reading where Justice Kagan took no part in the order today.

Meaning, if I'm reading between the lines correctly, she recused herself.

This extremely bad situation is getting worse by the day.

[terrya]

9. Just out of curiousity...why is this news about DADT on the Greatest Page?

This isn't good news...at least to THIS progressive.

[originalpckelly]

10. Well, it doesn't work like that.

It's just about what's most prominent. And this is a big deal.

[dgibby]

17. No, it isn't good news, but it IS news, and it IS important.

It affects all of us, as it continues to deny certain citizens their civil rights. Until we are ALL equal under the law, we are all in jeopardy of losing our civil rights.

[terrya]

18. Thanks. Sorry for the misunderstanding.

Thanks for explaining it.

[dgibby]

20. You're welcome.

No problem.

Posts go to the greatest page based on the number of rec's they get (minimum of 5). In other words, DUer's decide what should be on the Greatest, not Admin.-:hi:

[jonnyblitz]

21. I recommend it because it needs to be seen and known though

it is not good. :hi:

[terrya]

23. I guess I'm clueless about this rec/unrec/greatest page stuff.

Which is sort of sad, since it really isn't rocket science.

You're right about it needing to be seen and known. I'll rec on it myself.

I'd say we'll need a miracle at this point with DADT repeal.

:hi:

[MadHound]

11. Face it, the LGBT community has been played by this administration

They failed to fight for and pass DADT repeal when they could, and now they've got the perfect excuse, a lost Congressional house, to not pass it period. This will take years to work itself up through the courts and given the nature of the current court, DADT will be upheld.

I am sorry for my LGBT brothers and sisters, but you have been played by this administration and the Democrats. While they want your support, they apparently aren't willing to earn it. Perhaps they will learn the price of that neglect in 2012.

[originalpckelly]

13. I'd rather elect Obama again and have him not fuck us over.

But I am getting tired of this shit.

[MadHound]

16. I would too, but it is looking increasingly like that's not going to happen

Issues like DADT and DOMA are becoming for the left what abortion is for the right, something to get the base whipped up and out to the polls, but nothing is ever really done because, well, then the Democratic wouldn't have something to whip up their base and get them to the polls.

How long are you willing to put up with that sort of shit? Apparently RW fundies are willing to put up with it for decades now. One would hope that our side is a bit brighter than that:shrug:

[originalpckelly]

25. I'm not about to let civil rights for my people become something like that.

In my own little way, I promise to do the right thing. I don't know how, but I guess I'll try.

[struggle4progress]

12. Cook v. Gates and Witt v. Department of the Air Force: Judicial Deference and the Future

of Don't Ask Don't Tell
GUSTAVO OLIVEIRA
UNIVERSITY OF MIAMI LAW REVIEW Vol. 64:397
... III. JUDICIAL DEFERENCE: FIRST AND NINTH CIRCUITS GO THEIR SEPARATE WAYS ...
In Cook v. Gates, Plaintiffs were twelve highly decorated gay, lesbian, or bisexual citizens who served in the U.S. military ... The district court granted the Government's motion to dismiss ... The First Circuit ... held that Lawrence "recognized a liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests" that falls somewhere in between strict scrutiny and rational basis. Subsequently, the First Circuit noted that this case arose in a "unique" context-that of congressional judgment in the area of military affairs." Therefore, the First Circuit applied a deferential approach and concluded, "<W>here Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion
is simply not warranted" ... Nevertheless, there is no reason to believe that the current Supreme Court is ready to change course on the issue of judicial deference in the military context ...
dont.stanford.edu/commentary/Cook_v_Gates_and_Witt.pdf

[terrya]

14. Meaning it's now entirely in the hands of the Senate.

If I'm reading that correctly.

[originalpckelly]

15. Yep, that's how I understand it too.

Those fuckers McCain and Levin want to strip it out of the Defense Authorization Bill.

[struggle4progress]

19. It's in this Senate until the end of this Congress, then it's back to square one

The courts a decade ago were throwing out constitutional challenges, but the underlying rules have changed a bit, and the circuits seem split on the issue now. There's some reason to think a constitutional challenge will lose at SCOTUS

The remaining approach, often pushed here at DU, that the President can resolve this by Executive Order, seems a complete loser to me -- because the last D President signed DADT into law as the doable step-forward in the face of R opposition to lifting the service ban totally

So, it's either right now in the lame-duck or really a tough slog with the next House

[dgibby]

22. This is going to be a real fluster cluck !

I seriously doubt the SCOTUS would ever rule in favor of repeal as long as the makeup of the court remains as it is. Kagen will continue to recuse herself, and the conservatives will never rule for anything that supports the GLBTI community.

As for Congress, McCain will filibuster, so that's not going to happen either. If his own wife can make commercials in favor of repeal, and that doesn't persuade him, nothing will.

[VMI Dem]

24. This was the Obama admins plan all along when appealing.

Brilliant chess move.

[dgibby]

28. That thought has crossed my mind more than once. n/t

[piratefish08]

27. just kicking that can a little further down the road.

fucking cowards.

civil rights are not negotiable.