Discrimination | Don't Ask, Don't Tell | News

Ninth Circuit Reverses Part of DADT Injunction

DADT_Discriminates The U.S. Court of Appeals for the Ninth Circuit reversed course a bit on its injunction against Don't Ask, Don't Tell yesterday.

The San Francisco-based court previously approved a Log Cabin Republican injunction and ordered the military to stop investigating, discharging and penalizing people under DADT. That ruling also declared that the armed services should start accepting applications from openly gay people.

The government, however, balked at the ruling, claiming the injunction would disrupt the "orderly process" of DADT's repeal, and would go against Congress' wishes.

"Congress made quite clear that it believed the terms of the transition were critical to the credibility and success of this historic policy change, and to ensure continued military effectiveness," the Department of Justice said in its request.

The court, citing the government's "previously undisclosed facts," including military leaders' written objection to the injunction, apparently agreed.

While officials are still barred from investigating, penalizing or discharging servicemen and women under DADT, they can and technically should still reject openly gay applications.

Lambda legal legal director Jon W. Davidson described the decision as "whiplash," and blasted the Obama Administration for its "double speak" on DADT.

"This whiplash is surely confusing for many people. The administration needs to stop saying that certification under the Don't Ask, Don't Tell Repeal Act is coming soon and just issue it," Davidson wrote in an email to supporters. "The government has failed to show any reason why the policy cannot be halted immediately other than to claim that the military will respond better if it is not having to do so pursuant to a court order."

The government now has until Monday to explain why it withheld the military's "undisclosed" opposition, and the Log Cabin Republicans have until Thursday to enter a reconsideration. The rest of us, meanwhile, have to stop our heads from spinning.

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  1. If only there was a Fierce Advocate....

    Posted by: Anastasia Beaverhausen | Jul 16, 2011 9:18:37 AM

  2. I don't know how else to put this but it pains me deeply to support Obama for a second term. Here's a president who runs an administration that instead of being led by a "fiece advocate" is being led by a wimp. Therefore, my choice in the November 2012 presidential election comes down to choosing between the lesser of two evils.

    I absolutely will not vote for the Rethuggies. Because I can imagine what a GOPer administration would look like, I have to vote to keep them out but, my God, voting for Obama knowing his LGBT advocacy record will come with great pain.

    Posted by: HadenoughBS | Jul 16, 2011 10:19:12 AM

  3. Yes, I am disappointed, but my sense is the Obama Administration wants to do things by the book. In other words, let the law and the consitution work itself without favoritism to a particular group and eventually it will be repealed. Remember he didn't start the "fire" another Democratic did (Clinton) and by the way Clinton also signed DOMA as well. Obama is a constitutional lawyer who I assumes believes that the system works without interference. My take on this. I personally don't want to be looked at as a special interest group I am an American due all rights under our Constitution.

    Posted by: Diaz | Jul 16, 2011 10:31:18 AM

  4. Once again, so glad I'm Canadian... god, what a gong show the US is these days.

    Posted by: Bravo | Jul 16, 2011 10:45:32 AM

  5. Damn this is frustrating - I really feel bad for the gay men and women in uniform who are suffering right now. Certification should have happened weeks ago. Why does our military - the best trained in the world - need over 6 months to teach its soldiers "don't hate on the gays". Its ridiculous. According to the DOJ, certification will happen in late July or early August. How much you want to bet we will have to wait until after the August 2nd debt ceiling deadline? Of course if those idiots in Washington (both the Repubs and Democrats) can't agree on a solutions, I'm sure repeal of DADT will be the last thing on Obama's mind.

    Posted by: KP | Jul 16, 2011 10:55:49 AM

  6. Dear Diaz, the problem is that the Obama Administration is NOT "doing things by the book" and the Constitution is NOT "working itself out." We are not supposed to be a Military Junta or an autocracy where Government officials decide when and how constitutional rights are recognized and exercised. As Judge Phillips found, and the Government has admitted, and anyone with half a brain and honesty could see, DADT violates the constitutional rights of Gay people. Therefore, it is NOT "by the book" or Constitutionally "working" to continue DADT even a second longer.

    Your position that Obama should control when Gays can enlist, because you "personally don't want to be looked at as a special interest group" and "I am due all rights under our Constitution," is specious. Under your own position, you are NOT due Constitutional rights, because you are saying that Obama determines when and how you can exercise those rights. That is not being "due" anything.

    Obama is no more a "constitutional lawyer" than the Three Stooges. All Obama is a bigot and an enforcer of discrimination. But don't take my word for it. Take Dr. Martin Luther King, Jr.'s word for it. Presidents used the same argument on MLK, Jr. when he demanded an immediate end to federal and state laws allowing discrimination against Blacks. MLK, Jr.'s famous response--which he repeated over and over again in his writings and speeches--was that it simply is morally wrong to continue enforcing discrimination under the theory that democracy requires discriminatory laws to be followed by the Government until they are duly repealed. MLK, Jr. famously reminded people that, technically, under German law at the time, everything that the Nazis did to Jews and others was legal--even though as a matter of moral law, international law, and justice, it was completely wrong and evil and reprehensible.

    People have suffered tremendeously and continue to suffer because they are denied their constitutional rights under Obama's continued enforcement of DADT. First and foremost are the 14000+ people who were discharged under DADT and who are waiting to get their lives back. Second are the millions of otherwise eligible Gay Americans who want to newly enlist but cannot.

    Clinton certainly deserves heaps of shame for his creating DADT, but he hasn't been in office for more than a decade. The person enforcing DADT now is Barack Obama. He is responsible for EVERY discriminatory act against Gays that has taken place during his Presidency. He has no excuses for his discrimination. My only consolation is that he will go down in history as George Wallace did.

    All Obama's obtaining this partial reinstatement of DADT shows is that we don't have a Constitution, a constitutional democracy, or rule of law. All we have is a system where we all are indeed "special interest groups" vying and jockeying for power. Equality and rule of law are gone, if we ever had them.

    And, by the way, I have the same condemnation of Obama as I do for everyone else who has ever enforced DADT or stood by silently, including other Democrats and Republicans, and particularly the Supreme Court, who could have ended legal discrimination a long time ago by enforcing the Constitution through a court decision.

    Bottom line: Obama could have stopped enforcing DADT a long time ago, and made DADT's demise permanent. Diaz you should stop providing cover for Obama with your defense of him.

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 11:16:28 AM

  7. I'm not enamored of Obama and disappointed in some ways, but I'm sure as hell NEVER going to vote for a republican. By not voting for Obama in 2012 will be giving your vote to a republican, no matter how much it pains you to vote for Obama. I don't want a republican in the White House, ever because that means DOMA will NEVER be overturned and marriage equality won't have a chance in any more states. Ask yourselves, just exactly what do any of the republicans have lined up for gays if they take the White House? Voting for them is voting against yourselves.

    Posted by: robert in nyc | Jul 16, 2011 11:27:17 AM

  8. "I don't know how else to put this but it pains me deeply to support Obama for a second term."

    I got over that pain by choosing not to.

    I'll never again vote for any candidate who does not accept that I'm as much of a human being as they are.

    In the 21st Century, in the United States of America, that is NOT too much to ask.

    Posted by: ohplease | Jul 16, 2011 11:35:30 AM

  9. "Voting for (Republicans) is voting against yourselves."

    As opposed to voting for Obama?

    No, voting for ANY candidate who doesn't accept that you're as much of a human being as they are is obviously voting against yourself. Obama is squarely in that bigoted corner.

    So what you're really saying is vote for the candidate who wants to destroy you slightly less or not as quickly, and I refuse to play that game -- which is the only way real change will occur.

    Posted by: ohplease | Jul 16, 2011 11:42:10 AM

  10. You people are getting all worked up into a tizzy over nothing. Don't you realize that the people pushing this injunction are doing so in order to embarrass the current administration? They are repubs for god sake. Let the agreed-upon route to repeal run its course, and if it not successful, then you can have a fit. As for voting republican, obviously many of you are not old enough to remember the Reagan/bush years. This current batch of crazies is about 100 times that bad. So good luck with that.

    Posted by: patron | Jul 16, 2011 11:53:07 AM

  11. Note that I just posted a proper comment to Towleroad on this article and it was not published. Is Towleroad censoring?

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 11:59:26 AM

  12. Just to be clear: the only reason that Obama continues to enforce discrimination against Gays is because he believes that there is no consequence politically. He knows that he can squat over the faces of a significant percentage of Gays and defecate directly on them and they will say, "thank you, Lesser of Two Evils." In fact, if those Gays and Straights who collaborate with President Obama DESPITE the fact that he discriminates against Gays, simply told him that they would not vote for him BECAUSE he discriminates against Gays, he would stop discriminating.

    The bombshell here is that what these collaborators do not realize is that by compromising the principle of equality and rule of law by supporting and defending a Lesser of Two Evils, they are actually ensuring the lack of equality and rule of law forever. Even if the Government stops enforcing DADT, they can and will--in the absence of a court order or overwhelming public condemnation against discrimination--simply discriminate against Gays as a matter of "military discretion"--which is what the Government did in the Military before DADT was enacted in 1993.

    MLK,Jr. must be spinning in his grave knowing that the Nation's first Black President is enforcing discrimination against a minority, and excusing that discrimination with such a lame excuse as "the law made me do it." It's sad to say but the Nazi defense of "I'm just following orders [the law]" has been successfully used by President Obama and his collaborators. President Obama and his collabators have remarklably managed to validate both Segregation and the Holocaust with their enforcement/justification of discrimination.

    I wonder what it would be like to have a President who is not bigoted and has the courage to do what is right?

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 12:15:15 PM

  13. @James E.--Excellent post!

    The courts are part of our system of government. They don't have to defer to the congress and the President. They are most valuable when they leap over the foot draggers and the bigots and set things right. If it goes against the wishes of the President and the Congress, too effing bad.

    Posted by: StillmarriedinCA | Jul 16, 2011 12:18:14 PM

  14. Ari Ezra Waldman said this might happen, he even expected it, but I'd still like to hear his take on it. Perhaps after the DOJ responds on Monday? Pretty please?

    Posted by: Abel | Jul 16, 2011 12:37:54 PM

  15. You can register your displeasure with the Chosen One without going to the extreme voting for a repug or not voting at all.

    1) In the Democratic primary, write in the candidate of your choice. Obama will still win your state's dim primary and be the dim's candidate in the general election, so you're not helping the repugs at all, but you still show Obama he's not your Chosen One.

    2a) DO NOT GIVE ANY MONEY to the Obama campaign, nor to your state or county Democratic party. Donate to individual dim candidates if you must, but not a cent that would help the Obama campaign.

    2b) When the dims contact you for donations, make sure you tell them why you don't support Obama. They'll get the message.

    Posted by: Anastasia Beaverhausen | Jul 16, 2011 1:21:30 PM

  16. Since the gay community is a wholly-owned subsidiary of the Democrat Party, Obama knows he has nothing to fear. All Democrats are our friends, and all Republicans are evil. Repeat.

    Posted by: LincolnLounger | Jul 16, 2011 1:32:06 PM

  17. Thanks STILLMARRIEDINCA!!! :)

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 1:55:23 PM

  18. Patron, thank you for a logical comment.

    There is no political reason for the Obama administration to keep enforcing DADT. What they want to do is have control of the transition, and they want to do it on theirs and the military's terms. (Too slowly, in my opinion, but it's not because they want to hold onto the policy--that's a ludicrous idea.) This shouldn't be so difficult to fathom.

    And it also shouldn't be so hard to fathom that the Log Cabin Republicans are using this opportunity to criticize the administration since they obviously don't want to see him reelected. (They'd prefer a truly anti-gay Republican, and notice their criticisms rarely extend to the Republicans who want to permanently reinstate DADT.)

    This really isn't a story. It's a press release for the LCR's.

    Posted by: Ernie | Jul 16, 2011 1:56:47 PM

  19. Here's the ultimate refutation of the Obama collaborators' argument:

    The collaborators (and I'm referring to those who say they are against discrimination but won't hold Obama accountable for his) say that we must just be patient because repeal will happen under Obama as he said. Well, if Obama is going to repeal DADT anyway on his own, why would anyone still need to vote for him?

    The truth is, any progress the civil rights community has made on DADT is because some of us started demanding equality and forced his hand. He didn't do anything because Gay Inc. people showed up at his cocktail parties and happily gulped down his cocktail shrimp. He didn't do anything because his syncophants and collaborators said they would vote for him as a Lesser Evil. He did so because he felt he might lose political support among the greater Gay community and our Straight allies.

    Thus, President Obama's enforcement of DADT is dependent on one thing and one thing only: support from the collaborators. To put it another way, he won't end certify repeal because it's the right thing to do, but because it's the politically expedient thing to do.

    So, the only reason the collaborators defend Obama is because 1) they stand to benefit from his administration personally, and/or 2) they put their politics above their principles, and/or 3) they are afraid to stand up for themselves and demand equality as an inalienable right. They are afraid that if they do not let Obama continue to beat them, he will leave them altogether.

    But that is not a recipe for equality. Equality is a function of inalienable rights.

    Again, MLK, Jr. would be spinning in his grave to know that discrimination is considered "defensible."

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 2:06:39 PM

  20. FIRST: for those still pushing the meme that the Log Cabinettes just did this to embarrass Obama. They filed the lawsuit against DADT WHEN BUSH WAS STILL PRESIDENT!

    As for those still claiming that Obama must have had a good reason, that it will be good for us in the end, for fighting to keep DADT on the books [INCLUDING continuing investigations and discharge recommendations], that's like John Wayne Bobbitt thinking, "Well, Lorena must have had a good reason for cutting off my penis with a butcher knife then throwing it out the car window. It was actually good for me."

    "At what point do we say ‘ENOUGH’? At what point do we stand up and say we will not allow it to happen anymore?" - Harvey Milk. Anyone think HE would still be singing Obama's praises?

    Posted by: Michael@LeonardMatlovich.com | Jul 16, 2011 2:12:45 PM

  21. You can tell someone who's acting on political ideology when they start differentiating people based on political affiliation. They contrast Democrats v. Republicans, and vice versa. Such people have no credibility because they are not acting on principle.

    I'm speaking of those who have said, "but we can't vote for the Republicans because ...," or that "the Log Cabin case is merely an attempt to embarrass President Obama." These arguments are pure political pandering.

    Anyone--Democrat or Republican, Gay or Straight, Black or White, Male or Female--who discriminates or defends discrimination is wrong. Neither party should get our support for their discrimination.

    Moreover, there is nothing political about criticizing or complaining about a sitting Administration's enforcement of discrimination. Discrimination is discrimination, and anybody--including LCR--has a right to demand an end to it. If the LCR case looks bad on President Obama, that is his fault for discriminating in the first place.

    This partisanship in defending discrimination is exactly why we have discrimination in the first place: the lack of rule of law. People don't feel the need to treat each other under the same standard. Democrats feel they can commit or condone discrimination but then attack the Republicans for doing the same thing, all to win and hold political power. And vice versa--the Republicans doing the exact same thing. Both equally guilty.

    I realize the human condition is imperfect and that it will always be a struggle to have rule of law, but this has been ridiculous for so long--people claiming to advocate a principle but then allowing themselves or their allies to violate the principle and then attacking their opponents for doing the same thing.

    The Republicans and the Democrats are both guilty of discrimination. But only one person, a Democrat, has had the power to stop enforcement of DADT and to kill it immediately, and that is President Obama. George Bush--equally as bigoted as President Obama (both against Gay service and Gay marriage) is not in office.

    Stop excusing discrimination. There is not "but" in equality. There are no excuses for anyone. Stop talking about lesser evils and voting for whomever because of party, and start talking about not voting for anyone who discriminates. Being moral cowards to begin with, these political cowards and bigots will follow.

    Posted by: James E. Pietrangelo, II | Jul 16, 2011 2:30:44 PM

  22. BLAH, BLAH, BLAH...
    It's not like any of you are going into the service any damn way so stop playing. So sit the election out teach Obama a lesson and see what a lesson the Republicans will teach you.....Boy this will be a HOOT!

    Posted by: CHRIS DACHOCOLATEBEARCUB | Jul 16, 2011 2:50:24 PM

  23. @ JAMES E. PIETRANGELO, II: despite your lengthy posts, it's clear you have little grasp of history or Realpolitik. MLK, JR. was a civil rights leader, not the president. Clinton did things his way without considering Realpolitik and look where it got us? Obama is smart enough and enough of a supporter of our cause to make sure that doesn't happen again.

    Clinton put lots of LGBT people in his administration and Obama's put in even more and added rules and positions (think ICE, USAID) that will make a big difference ON THE GROUND.

    There has been TREMENDOUS progress under this administration and there will be more under his next.

    And Obama taught constitutional law at one of the best law schools in the world.

    Posted by: David R. | Jul 16, 2011 3:41:40 PM

  24. More: Yes, I've cringed a little at supporting Obama in 2012 because I too want more Change now. But that's just not realistic. Just look at what Ralph Nader wrought: Bush x2, a decimated economy, a messed-up war in Afghanistan (due to the dalliance in IRQ).

    Is that what you want? Backmann/Romney?

    Posted by: David R. | Jul 16, 2011 3:43:47 PM

  25. Oops, "Bachmann/Romney".

    Posted by: David R. | Jul 16, 2011 3:46:44 PM

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