b322da wrote:TAM,
I can only say,
1. Members of the military do not leave their constitutional rights at the door. Provisions of the UCMJ can be held by the judiciary, both military courts and Article III courts, to be unconstitutional, as can any congressional enactment, and the application of an otherwise constitutional provision of the UCMJ can also be held unconstitutional by both military and Article III courts.
So how often does this happen? Gays have been a presence in the military ever since there has been a military. How is it that, just now (relatively speaking), we have a suit which obtains a decision to throw out DADT? I actually know the answer... ...judge/court shopping. You have a grievance, but you don't think you can get a positive result in the appropriate district, so you pick a court where you think you are likely to prevail, and you file there. Thus, Log Cabin Republicans, a national organization, sues the Federal Government, another national organization - not in Washington D.C. which would be the logical venue because that is where both the Log Cabin Republicans and the federal government are headquarted, but rather in Los Angeles, where you can be certain of a favorable ruling. Of course, government attorneys say that that Judge Phillips lacks the authority to issue a nationwide injunction. I think they are right.
b322da wrote:2. Judge Phillips would wonder, I am sure, why you discuss
her as if she were a
he. Beware of doing such as this if you ever have the pleasure of standing before a female federal judge, as yours truly has.
An obvious oversight on my part. Of course I'm not dumb enough to make such a mistake to her face, nor am I that personally rude.
b322da wrote:3. My language you quoted just above was an effort to answer your question about what the Constitution says, in the context of a thread having to do with Judge Phillips' decision. It was not an effort to engage in a debate about the fact that you obviously are unhappy with the decision. Counsel for the defendants in both Judge Phillips' couirt and in the 9th Circuit Court of Appeals made all your arguments, or at least had the opportunity to do so. And they lost. They may not lose in SCOTUS, but until then, that is the law. My understanding is that the geographic scope of the 9th Circuit's decision is under consideration by the parties and the judges.
I
am unhappy with the decision because I don't see the constitutional rational for it. Attorneys in
this administration (of all possible scenarios
) do not think she has the authority, and obviously, as long as they are considering an appeal, they are prepared to contest that assertion. And Paul G. Freeborne, a government attorney on this case makes the point that this is a political matter, not a judicial one - with which I am in agreement, and Congress needs to address it, without horsing around and hiding behind the tactic of burying it in an unrelated bill.
The attempt by democrats to insert DADT into a defense authorization bill is poulty excrement. It has nothing to do with defense appropriations. This is an important enough issue to put it up for a congress-wide vote as a separate bill, on its own merits. My fervent hope is that, if this happens, Republicans will have the good sense not to filibuster this time, but to let the bill get to the floor and an up or down vote. Then we, the voters, get to know whether or not we want to vote to reelect our incumbents. Salting away inserts into unrelated, or only marginally related bills is a cheesy tactic used by politicians to avoid having to put their up or down vote for the record on a specific issue. They can always say, "well I
had to vote for the defense bill. We have to fund the military, don't we?" And they don't have to address that in so doing, they also voted to pass other legislation. I admit that this tactic has worked beneficially WRT to RKBA fairly recently when National Parks carry became legal with the passage of an unrelated Credit Card bill. But even so, it is at least an addon which affirms an enumerated constitutional right. WRT to DADT, a gay person's 1st and 5th Amendment rights are not placed in jeopardy (if you believe the Log Cabin Republicans' and Judge Phillips' claims) until they
voluntarily join an organization in which membership is not a constitutional right, and in which, your other arguments notwithstanding, members do not enjoy the exact same constitutional privileges as do civilians;
and which they join anyway,
knowing that this is the case. It is illogical and indefensible. It's like choosing to walk barefoot through broken glass, and then whining because you cut your foot.
For better or for worse, I accept that DADT is going to some day go the way of the Dodo, but when it does, I want it to happen for the right reasons, not because some activist judge in Los Angeles thought enough of her local mandate (to handle federal cases in her district) to try and set national policy. Whenever national policy issues like DADT, abortion, and other hot button issues which are not about an enumerated right are settled by the federal courts, including SCOTUS, it robs the American people of the opportunity to participate in the process through their elected representatives. That's poultry excrement too.
“Hard times create strong men. Strong men create good times. Good times create weak men. And, weak men create hard times.”
― G. Michael Hopf, "Those Who Remain"
#TINVOWOOT
