Hooray!

[kengr]

'Don't ask, don't tell' ruled unconstitutional

(swiped from filkertom)

Analysis, and .pdf of the opinion.

Comments

[freetrav.livejournal.com]

Except that the plaintiffs didn't think it through.

DADT was a policy intended as a stop-gap measure to bridge the period between when it was issued and when Congress could be convinced to amend the Uniform Code of Military Justice to allow open service by homosexuals. In essence, it was saying "Don't rub our noses in it, and we'll look the other way.". At the time that DADT was promulgated, the military and Congress were willing to accept it, grudgingly, but Congress couldn't have been convinced to actually amend the UCMJ, and the political levels of the Armed Forces could not have been convinced to support such an amendment were it to be proposed.

Unfortunately, the UCMJ currently still specifies that homosexuality is incompatible with military service. Until that's changed - by Congressional action, as it's entirely under their control - the failure of DADT means that legally, the Armed Forces must ask and must pursue on suspicion - they can't look the other way even if it's not blatant. I question whether at this time the political levels of the Armed Forces would support amending the UCMJ - and even if they would, whether Congress could be convinced to pass it.

I strongly believe that this will not prove to be the victory that the plaintiffs desired; rather, I see it as being a step backward. I hope I'm wrong.

[kengr]

Well, the UCMJ does have to be revised regarding that. But that's because Lawrence v Texas pretty much makes that clause unenforceable anyway.

You flat out *cannot* make homosexual *acts* illegal anymore. Not if they are consensual. Period. End of discussion.

A lot of places still haven't changed laws about "sodomy", but if they are dumb enough to try to enforce them, they'll get a major legal slapdown and be forced to change/remove said laws.

"Being" homosexual (but not engaging in homosexual acts) is apt to be covered as fallout from this decision.

And even if it isn't, given the reasoning on this decision, it'll be really hard to make enforcing any rules against being homosexual stick.

Congress may not *want* to revise that part of the UCMJ. But if they don't, the courts will do it for them.

[freetrav.livejournal.com]

The thing is, stuff that would be prohibited to civilians isn't always automatically prohibited to the Armed Forces; if you look around, I'm sure you'll see a tagline on some current or retired military person's postings to a newsgroup or forum that says something like "Servicemen give up their rights to protect yours". More, the courts have historically deferred to the military authorities on matters of military discipline, and there is a case to be made that since enlistment is completely voluntary, signing those enlistment papers is agreeing to a contract, part of the terms of which include obeying the UCMJ. So, it's not so clear-cut. Lawrence v Texas does not address the question of its own applicability to the Armed Forces, and it HAS been held that restrictions that would be absolutely unacceptable on purely Constitutional bases for civilians are acceptable in the military - such as barring serving members from openly criticizing NCA.

Don't count on the courts in this - and don't assume that the overturning of DADT is going to work out the way you want it to. The Military Is Different From You And Me.