Obama DOJ Moves 9th Circuit To Stay DADT Ban

Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than simply that. The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

And in the meantime, Obama should help the effort along, and set a positive example, by issuing an executive order under his crystal clear stop loss authority pursuant to 10 USC 12305 stopping all discharges from the United States Military under the pernicious DADT policy. The President has that power and should have the courage to use it.

Obama is doing none of the above and, instead, is paying cheap political lip service only by hiding and trying to frame everything in terms of Congressional repeal. When asked about the court rulings by Phillips in the LCR DADT case, by Tauro in the DOMA case, or by Walker in Perry, the response is always in terms of legislation repealing things in place. legislation affirmatively protecting something in the future, studies to see what is appropriate or some other mealy mouthed baloney.

On the other hand, not a lick of the above described baloney matters if the discrimination at issue is flat out unconstitutional. If it is unconstitutional, and DADT absolutely is, then studies are irrelevant. What generals and servicemembers wives think and respond to in answers to ginned up surveys is irrelevant. Legislation by Congress is irrelevant. Public opinion, for that matter, is irrelevant. None of that matters because it is a fundamental right for such citizens to be treated equally under the United States Constitution and not be discriminated against. End of story. Seriously, it either is or it is not.

However, the filing by the Obama DOJ speaks for itself as to where we stand today. (And here is a just posted article by Gerstein on the stay attempt in the 9th). As an attorney, I am inclined to agree with their position that the injunctive order by Judge Phillips is of questionable validity in its extension worldwide against the US military. As the government’s brief argues, the standing granted in the Log Cabin Republican case was limited and restricted; it is hard to see how it serves as a proper foundation for the extraordinarily broad injunction she issued.

That said, Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct and, as cited above, there is nothing to stop the government from voluntarily complying with the spirit of that finding or, indeed, President Obama from mandating evisceration of DADT pursuant to his stop loss authority under 10 USC 12305. What is needed is a profile in courage instead of another example of rank political triangulation.

  1. Teddy Partridge says:

    I think we know what Obama and his close-in team (Valerie Jarrett et al) think about Teh Ghey. Has Holder ever made any statement in support of LBGT Americans?

  2. Teddy Partridge says:

    What is needed is a profile in courage instead of another example of rank political triangulation.

    Then we will need to look elsewhere.

  3. Phoenix Woman says:

    Advocatus diaboli here (just to keep the Booster Clubbers happy):

    What if the reason Obama and/or the DoJ didn’t make the argument that DADT was unconstitutional on its face was because they don’t actually think that it is?

      • Teddy Partridge says:

        Obama and his spokesmen seem to go out of their way to avoid using the ‘unconstitutional’ word whenever referring to DADT. I’m pretty sure Kerry Eleveld of the Advocate has asked Gibbs repeatedly, only to have him brush the word aside with his standard non-answer answer.

  4. bobschacht says:

    Isn’t it the *Court’s* job to determine what is Constitutional and what isn’t? Perhaps this is just a rare example of administration restraint?

    Thanks for covering this.

    Bob in AZ

    • bmaz says:

      It is the Court’s duty to make the final determination; it is completely appropriate for a party to argue what they believe it should be and why to the court. From all appearances, Obama is of the belief that Congress should repeal the law, but does NOT consider the rights of LGBT citizens to be constitutionally infringed on by it. That is very distressing, but at this point, from their own words and conduct, it is hard to not make that conclusion.

        • Margaret says:

          I would agree with that except he has done nothing but stand against LGBT civil rights. Come on. Obama knows that Congress is set to become more conservative, not less so. Imagining the next Congress is going to repeal DADT is almost delusional enough to warrant a 72 incarceration for psychological examination in my opinion.

      • Teddy Partridge says:

        I can’t imagine anyone who considers himself our Fierce Advocate would not believe DADT is an unconstitutional infringement on LGBT rights. Therefore, Obama must believe it’s unconstitutional and hardly needs to actually SAY so.


      • BoxTurtle says:

        You’re giving ObamaLLP too much credit. The constitutionality of the law has probably never entered the discussions on repeal. Those have centered around three questions:

        1) Whom do we make happy?

        2) Whom do we piss off?

        3) Which one gets more votes in congress that he doesn’t already have?

        Obviously, this would cost him some senators he feels he can’t live without.

        Boxturtle (In short, this is a political decision, not a legal one)

  5. Teddy Partridge says:

    Does this DoJ action put you in a quandary, bmaz? “Yes, they must appeal, but not THIS appeal, damnit!”

    • bmaz says:

      Teddy, that is really hard and complex to answer. I think folks who advocate that the DOJ can simply not appeal and everything will be groovy are nuts. Just leaving a single district level decision in place is not sufficient. That goal could perhaps be attained by entering a consent judgment, but no way they will do that. So, my real preference would be to appeal under the guise of duty to do so for properly enacted statutes, but take the position with the court that the law is presumptively unconstitutional and then let the court (9th Circuit) determine exactly that. With that record, not only would the 9th make the finding, it is hard to see how SCOTUS would set it aside and you have the deal done and over. Problem is, the Administration does not seem to believe the oppression is truly of a Constitutional nature.

      • BoxTurtle says:

        ObamaLLP can appeal without trying to void the DADT ban during the appeal. But he has chosen politics over justice.

        Boxturtle (I’m sure we’re all shocked at that. Nobody could have predicted, etc…)

      • JDM3 says:

        No, it’s not nuts. If Obamco agrees with the decision, they don’t appeal it. If conflicts develop within the circuit, the circuit will decide it. If conflicts develop between the circuits, the SCOTUS will decide it. The “appeal” you’re recommending is a bad faith effort to place the matter before the circuit and I think the circuit would bounce it for want of jurisdiction. There’s no duty to bring appeals just to vindicate acts of congress or of prior executives – there just isn’t, not in the federal legal system.

        • bmaz says:

          That is just not right. If you want the decision to mean anything outside of CACD, you do not just blithely leave it there. And, no, I do not think Phillips’ grand sweeping “World Order” is particularly enforceable outside her jurisdiction if it were seriously challenged either. While there may be no absolute duty to defend statutes properly enacted by Congress, that sure is the presumption. I think you are giving very short shrift to how things really work.

        • econobuzz says:

          While there may be no absolute duty to defend statutes properly enacted by Congress, that sure is the presumption.

          Stupid question from a legal dunce: Can Congress “properly enact” a law that is unconstitutional?

      • southof says:

        I think folks who advocate that the DOJ can simply not appeal and everything will be groovy are nuts.

        Putting aside the merits of what is or is not a correct legal strategy to end DADT, virtually every gay military group is pushing for Obama to not ask for a stay on Judge Phillips’ decision. So I think you owe these groups an apology for the pejorative word “nuts.”

        In the meantime, I’ll take my cues as to what strategy to follow from the those most affected by this unconstitutional and discriminatory policy — i.e., the gay men and women in the military.

        • bmaz says:

          Heh. Certainly always a good plan to get your legal strategy on constitutional appellate issues from lay military troops rather than professional attorneys.

        • southof says:

          Arrogant smugness aside. I left out a phrase.

          In the meantime, I’ll take my cues as to what strategy to follow from the those most affected by this unconstitutional and discriminatory policy — i.e., the gay men and women in the military, and their legal representatives.

        • bmaz says:

          Fair enough. But the points I have made do not have anything whatsoever to do with what the LCRs (and it is not “servicemen” in this case, it is the Log Cabin Republicans of the Southern California area) that are the plaintiffs. My points have to do only with what the obama Administration, by and through its DOJ, is doing and should be doing. So your haughty puffery is far off the mark either way.

  6. revisionist says:

    Just throwing this out there… This is beyond my legal scope of understanding… But….

    Doesnt a judicial ruling, especially one related to constitutionality, open up the governement to litigation that a congressional repeal would not.

    What I am saying is that gays effected would be able to sue for pay, diress, loss of earnings etc etc if the court strikes down the law. Where as a simple repeal doesnt open up any issues with the past enforcement of the policy.

    • bmaz says:

      No, because it was passed by Congress, the law is presumed Constitutional until declared otherwise so there is no back liability at issue.

  7. khiva says:

    Keep that change we can believe in rolling, Big O! Guantanamo closed, US troops out of Iraq, no more secret prisons, rolling back the unconstitutional Patriot Act, no more spying on Americans, protecting the environment, getting tough on bankers…. Oh. Wait. Never mind.

      • knowbuddhau says:

        LOL! First good laugh I’ve had all day, TYVM

        It’s hard to imagine what they imagine we imagine we want out of life. I imagine that they imagine that when they want our opinion, they’ll just implant it with weapons-grade PR. We’re supposed to believe it because they say it.

        Too bad they’ve gone to the flashy thing (as in Men In Black) way too often.

        Your quip nails their MO: Substituting manufactured opinions for native ones, getting people not just occasionally to act a little against their interests, but to believe wholeheartedly in the world that keeps them down. They usurped the power of the American dream of homeownership, used it to power the bubble, and now they need to “manipulate the media narrative” (ie, fuck with our sense of reality, that’s all) to get us to blame ourselves for it.

        Brilliant! The fatal flaw in this strategy is historical: now that we can bust their BS in real-time, we’re getting harder and harder to dupe.

        I don’t, however, expect them just to give up. I expect them to go ever madder every day, making more blatant power grabs all the time like cornered animals.

  8. endtimesgal says:

    Between this and Obama’s other radical positions, indefinite detention,inability to honor habeas corpus- I think that his understanding of the essence of constitutional law is not really any deeper than Christine O’Donnell. Certainly he is just as worthless at defending the basic rights of man as she is of understanding them.

    • Margaret says:

      I gotta agree. I don’t see any daylight between Holder’s DoJ and Ashcroft’s or Gonzales’. Meet the new boss…. same as the old boss.

  9. danw5 says:

    The Senate will never repeal DADT. It is also pretty clear that Obama understands that clearly.

    If Obama can’t keep his promise, and I really doubt he has any intent any longer of repealing DADT, the courts should do it for him!

  10. kall says:

    How wonderful that Obama stipulates that he favors legislative repeal, now that he’s been so ineffective, and has disgusted so many people by his reversals and cozying to special interests in office that Congress is about to be replaced by a crew that will never repeal it.

    Kind of like saying that you’re going to take a firm stand for vegetarianism when you’re on the plane to the 68th Annual Butcher’s Convention.

    Is he going to axe the filibuster and wave a magic wand and get a Democratic House after the midterms? Because that’s the only way that legislative repeal would ever happen.

  11. Margaret says:

    And no doubt Ed Schultz will expound upon the need to give Obama more time tonight and I predict this topic won’t even be mentioned.

  12. roknich says:

    It is a matter of control. O’bama did not promise us a “Profile in Courage”.

    He did not promise to wrest control from the Minions of Doom who ran the US government before he was elected. He has appointed the lawyer for Chiquita Bananas to head the DOJ, and expects that he can obtain some measure of justice, in time, by negotiating with these assholes by bringing them inside the tent.

    Johnson was wrong about Hoover, and O’bama is wrong about Gates and Holder.
    Together, they represent the dark side of the CIA and military.

    So the real question turns to the previous article –
    “When Will Clarence Thomas Apologize for Being a Liar and a Creepy Asshole?”
    because this will go to the Supreme Court where it will likely be shot down.

    Then it will go back to the Senate, where it will be hogtied JUST LIKE the Poll Tax was until JFK used a contitutional ammendment to solve the problem.

    We need to take hold of Heavy Tools to fix this system, and they are available.

    Key words: Judicial Recall, Constitutional Amendment

    • BoxTurtle says:

      Johnson was wrong about Hoover, and O’bama is wrong about Gates and Holder.

      Gates and Holder are doing EXACTLY what Obama tells them to do. Don’t think for a moment that they aren’t.

      Boxturtle (*sound of dead horse being beaten*)

        • BoxTurtle says:

          Dunno there. My knowledge of that history is lacking. But I keep beating the point that Obama is in charge, and all the folks who say holder or gates or rahm or whomever is working behind Obamas back so Obama isn’t really responsable are not seeing reality.

          Boxturtle (Disclaimer: I have not lost my grip on reality so much as reality has lost it’s grip on me)

  13. roknich says:

    Obama is defending a decision made by the military, and he claims we should wait until they’ve completed a study of the matter.

    Bill Clinton tried to end the ban on gays, and was stared down by Colin Powell – thus the current compromise remains the decision of a general. Through most of US history, the orthodox position has been to leave to military alone to judge it’s own needs. Not that I agree with this, but the fact is that Obama is merely acting in a manner that is consistent with our legal history.

    • revisionist says:

      what exactly are they studying? That study is just a delaying tactic and has no value. There is nothing for the military to actually do to integrate gays. The only loose ends are those being prosecuted or those already thrown out. The gays are already there. And reasonably open in some cases. There are already codes of conduct in place that cover any situations that might arise.

      I was wondering the other nite what would happen if this all important “study” said NO WAY TO THE GAYS… what does O do then? Just shelve it because some old brass thinks gays have cooties?

    • PJEvans says:

      Big exception: Truman issuing his order to integrate the military, over the objections of a lot of generals.

      I see no reason why Mr O couldn’t issue an executive order. He certain claims enough power to do whatever he pleases, regardless of courts and laws.

      • bmaz says:

        That is precisely what I was talking about in 10 USC 12305. The executive stop loss order. The power and legitimate basis is crystal clear and right there. Just waiting. It would be so easy it is ridiculous.

  14. pdaly says:

    It is ironic that we’re talking about military issues, during a time of war, and the super all-powerful Commander-In-Chief suddenly has his hands tied by Congress.

    Maybe Obama is afraid once he declares DADT unenforceable via Presidential Signing Statement that any military officer continuing to follow DADT will have to be fired for insubordination. With reports of the Christianist wing taking over parts of the military, that might result in lots of Dept of Defense vacancies. Then again, that sounds like a win win option. Too bad Obama doesn’t see it that way.

  15. jonathangelling says:

    Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct

    Policies can be unfair, unjust, and unintelligent without being unconstitutional. DADT is one such law.

    For some reason we feel the need to make legal arguments over policy in this country when practical and moral arguments are more than sufficient. Let democracy work, even if it’s often ugly. Don’t rely on lawyers in black robes to pull magic words out of the Constitution that aren’t there (e.g. there isn’t even an Equal Protection Clause that applies to the federal government – judges have just transposed it into the Fifth Amendment’s Due Process Clause).

    Whatever magic words the lawyers find to limit Congress’ ability to regulate the military one day, they can find to limit Congress’ ability to regulate corporate electioneering the next.

    • bmaz says:

      Well, if that hypothetical law you are talking about infringes on a protected class’ rights, then that will will appropriate to knock down too. Interesting, I suspected you were of the curious opinion that LGBT rights were not constitutionally protected the last time you reared your head here. At least you admit it now.

  16. roknich says:

    We’re stuck with this situation for at least 2 years, and it may get worse.
    There is time to get to work with Heavy Tools:

    Key words: Judicial Recall, Constitutional Amendment

    I have mentioned the 24th amendment numerous times because it took only about 18 months to get it enacted vs. decades of stonewalling and obfuscation, and I am warming up for another full scale post.

    • revisionist says:

      We’re stuck with this situation for at least 2 years, and it may get worse

      My prediction is that even if congress does repeal it they will tack on some future sunset date. Like 2016 or something. To give the military, you know, time to prepare.

      But then again Harry Reid couldnt even pass gas after a bean and brocolli eating contest

  17. PatrickD says:

    The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

    Yeah, they certainly should, but I wouldn’t hold my breath waiting for it to happen. The most consistent trait of this administration has been it’s complete disdain and ridicule for any principled stance. How very unserious of the hippies to think that merely because a law is unconstitutional, the President should use every means at his disposal to change it. You clearly just don’t get it. Everyone here should be drug tested.

  18. georgeofwashington says:

    What are the odds that the current Supreme Court would find DADT unconstitutional? You really think a bunch of elderly Catholics will support teh gay?

    Therefore it is constitutional. That is just the way the world is, alas.

  19. RU4862 says:

    What is so asinine about the Obama administrations repeated attempts to uphold DADT is that, on one hand you have the president telling us he’s an unwavering proponent for ending DADT. Yet in private he is ordering his Justice department to continue defending DADT. Now the Pentagon is accepting openly gay applicants….what kind of incoherent message is the president sending to the American people? He looks opportunistic and weak.

    And what happens when the Pentagon completes its report on DADT in December? What happens if DADT fails to pass in the senate again? What then? Has the president even entertained such a probable scenario?

  20. timncguy says:

    You have made the statement in prior posts that you believe this judge overreached in issuing a global injunction. But, I believe you have also stated in prior posts that the judge does have the authority to issue a ruling finding DADT “facially” unconstitutional.

    What I’m not clear on is why you believe she can rule it unconstitutional facially but you don’t believe she can issue a facial remedy.

    Additionally, Newsweek had a very good write up on this whole bungled up mess and what the White House’s options have been throughout.


    • bmaz says:

      I think she can issue the remedy to the plaintiffs in the case and controversy in front of her; I do not think she can appropriately enforce it injunctively against a far bigger target that is not in front of her. It violates the most basic constriction on injunctive relief, and that is it shouls be as narrowly tailored to the facts and parties in front of the court as possible. Furthermore, her order would have to presume to control decisions in other lateral districts and/or circuits that are contra, and that does not militate to propriety either.

      • timncguy says:

        I thought enforcing injunctions against a far bigger target was exactly the point of a “facial” ruling and a “facial” remedy. If a law is unconstitutional on it face, it’s unconstitutional for everyone. Are you suggesting that every other gay person in the country must go to the trouble of filing a lawsuit to get relief from unconstitutional laws? And, if that’s the case, what is the point in having any court lower than the supreme court issuing facial rulings?

        Didn’t the judge address the issue of limiting the ruling to the most narrow possible that would provide relief and show that there was nothing other than the injunction she issued that would provide relief?

        I think I’ve read elsewhere that the DADT cases in other jurisdictions that found for the government were not really on point here. The majority of them were decided BEFORE Lawrence v Texas. Another was decided on some sort of technicality and not on any facts of the case.

  21. timncguy says:

    Leaving aside the issue of whether Obama should or shouldn’t or must defend and/or appeal DADT for a moment.

    The reason Obama wants the legislative “compromise” which isn’t really a repeal at all, is because he handed his balls over to Gates for this. Gates wants “repeal” on his terms only. He wants it after the study is done and not before. He wants to use the study to justify his version of implementation which will take years and will end up with segregated open service for gays and lesbians. It will be segregated in both facilities and career options. Just pay attention to what they have been saying. Just last week Gates talked openly about required modifications to defense department buildings (read as segregated barracks). Just last week someone in the military leaked part of the survey results saying that some areas of the service had major problems with repeal while others didn’t (read as segregated career options). Gates said earlier this year that he would need discharges to continue for at least a year after repeal. and on, and on, and on….. Judicial action ending DADT would not allow for Gate’s plan to go forward as planned. And, the fear of judicial action will be what Obama will use to get some republicans on board for the “compromise” not really repeal during the lame-duck session of the senate.

    • sabretoothedcritter says:

      I think you missed it by that much.

      The fear of repeal is what Obama will use to get the Republicans to SAY they will support the compromise. But in the end, they will vote against it anyway, and will then proceed to call him a socialist narcissist communist terrorist sexist racist ageist gymnast pianist tromobonist secret Kenyan muslim.

    • bmaz says:

      Not sure if he can get what you suggest in the last sentence, but we do really agree on most all that before the last sentence. He did hand his balls over without any indication that there was going to be solid and meaningful followthrough. And now it is just a mess.

  22. Becca says:

    In addition to due process, equal protection, and 1st and 5th amendment rights, Phillips’ ruling drew heavily upon Lawrence v. Texas.

    My question to the Obama administration would be this: Is it the position of this White House that Lawrence was wrongly decided? Do the states and federal government have an inherent constitutional ability to create anti-gay laws?

    • sabretoothedcritter says:

      Though I am certainly not one to defend Mr. Fierce Advocate, I don’t necessarily see it that way.

      I think that the ideal chain of events, unless I have misunderstood, is that the DoJ appeals, but essentially presents no evidence.

      The judge says “It’s your turn to present your case, DoJ” to which the DoJ responds “No further evidence”. Rinse and repeat until a high enough level court, with enough jurisdiction to make it apply nationally, has ruled.

      • bmaz says:

        There is no evidence; that is over it is only legal arguments on appeal and they have already staked out their position just in this brief for stay. As much as it would be nice, the pattern you suggest will never happen and it does not really work that way.

  23. jonathangelling says:

    Interesting, I suspected you were of the curious opinion that LGBT rights were not constitutionally protected the last time you reared your head here. At least you admit it now.

    No, I am of the “curious” opinion that the Constitution means what it says, and I oppose any voodoo substantive due process doctrines invented by the courts as a usurpation of the democratic process.

    This decision is Fifth Amendment substantive due process, and it goes out of its way to ignore Article 1’s explicit delegation to Congress of authority to provide for the regulation of the national military. It’s also really dangerous to have federal courts dictating military policy, or ruling directly on matters of national defense, and issuing global injunctions affecting all military officers everywhere in the world.

    I know fellow progressives love decisions like this when they go our way. But the lawyers can just as easily redefine “speech” to mean “money” and “persons” to include “corporations” and to allow unlimited corporate electioneering. Or what may be worse, I can see SCOTUS reviving some horrifying economic substantive due process in the course of this health care litigation, trying to define some latter-day “economic liberty” or “freedom to contract” to overturn that legislation. Then the courts will sit as legislatures over a cowed people.

    This federal judge cared nothing for the “law” in reaching her decision. She wanted to make a political decision on the eve of a major election, and went out of her way to issue the broadest possible decision she could have. Then she even refused to issue a stay pending appeal, which shows how completely biased she is. Her decision has nothing to do with the “law” and everything to do with her own political beliefs.

    You can’t trust unelected officials to sit as censure of the legislative process, defining the “rights” of the American people however they choose to. When Congress makes a bad decision, we can fire the bums. We generally have to wait for the bums in black robes to die.

    • bmaz says:

      There is not a shred of evidence to support your wild factual assertions about Phillips timing or motive. None. In fact, if you had studied the docket in this case, you could see a progression over nearly five years that led to this point; no evidence whatsoever of the scandalous bullshit you have pitched. Furthermore, you appear not to really understand the scope of the decision as it is firmly rooted in First Amendment law as well as Fifth; not to mention that if something is constitutionally prohibited conduct against protected persons/classes, certainly is appropriate for the court to so hold and it is now way, shape or form and impingement on separation of powers of

      Congress and neither Congress or the military takes precedence over such fundamental rights. Calling it an infringement of the democratic process is freaking ludicrous. You are nothing but a troll at this point.

        • bmaz says:

          I have no issue with my nerves, the scurrilous unsupported allegations you made about the timing of the case and Judge Phillips motivations, however, I find disturbing and dishonest, and your legal assertions, um, bogus.

  24. knowbuddhau says:

    They’ll have to elbow aside the other PTB that are milking us for all we’re worth, and then some, to do it.

    Since the military is so damn all-important, and since the other two lesser branches just keep getting in the way (those stupid effing know-nothing silly-vilians), why don’t we go ahead and have a open dictatorship? Those damn judges have no business meddling in military affairs, right? Unlike having no control over our Exec, that would be dangerous.

    O brother, my Brother. If terror is at the base of your very awareness, if you’re existentially afraid of your own Shadow, then you just won’t have the nerve for an open society, you’ll want security at all costs.

    What are you so afraid of?

  25. Teddy Partridge says:

    So now that the Ninth Circuit has enjoined Judge Phillips’ ruling, will the Pentagon change its policy again? What about any gay or lesbian recruits accepted yesterday? What about Dan Choi? What about any servicemembers who came out yesterday?

    What an utter clusterfuck. I’m so embarrassed, seeing the only superpower’s mighty military, costing more than all other military spending on the planet, stumbling over its gay and lesbian servicemembers this way.

    Way to step on yer own dick, Gates. Obama too.

  26. Teddy Partridge says:

    He can assassinate American citizens but he can’t order his generals to allow gays and lesbians to serve openly? Please, Mary.