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Court blocks don't ask don't tell -- and I'm angry

If you believe in fairness, then you cannot help but be overjoyed by the worldwide and immediate injunction against enforcement of the shameful ban on gay men and lesbians serving openly in the military issued this afternoon by a federal judge in California. We have seen too many heroes drummed out of the armed services because they were honest about who they are.

But this ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.

The House overturned the prohibition in May. The Senate failed to do so in a vote held last month. As a result, whether "don't ask don't tell" will actually be repealed is now in doubt. I'll save for another time my fire breathing about the misguided procedural tactics employed by Senate Majority Leader Harry Reid (D-Nev.) that caused pro-repeal Republicans such as Sen. Susan Collins (Maine) to vote against the Defense bill to which the repeal was attached.

The case was brought by the gay group Log Cabin Republicans. Judge Virginia Phillips ruled last month that the 17-year-old ban on gay men and lesbians serving openly in the military was unconstitutional. The Justice Department has 60 days to appeal today's injunction. But don't be surprised if DOJ asks the Ninth Circuit Court of Appeals for a stay of that ruling. This might give the Senate enough time do the right thing and overturn "don't ask don't tell" in a lame duck session of Congress after the midterm elections. Otherwise, we should all get comfortable with the federal courts doing what Congress can't -- or won't.

By Jonathan Capehart  | October 12, 2010; 4:21 PM ET
Categories:  Capehart  | Tags:  Jonathan Capehart  
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Comments

Does "serving openly" also mean cross-dressing in military uniforms too?

Posted by: lindalovejones | October 12, 2010 5:00 PM | Report abuse


Whether you're for the ruling or against it, it's still judicial activism. No doubt a result of Congress' cowardice towards doing the right thing, which is repeal.

Nice to see gay Republicans act up once there's a Democrat in the White House, I guess.

Posted by: tony_in_Durham_NC | October 12, 2010 5:01 PM | Report abuse

Jonathan, I share your disgust at the Senate's refusal to end this travesty once and for all. But at this point, if it takes what the GOP will no doubt denounce as "judicial activism" to get it done, then so be it. Frankly, all the arguments for letting the democratic process work its magic have completely lost their appeal.

Posted by: DCSteve1 | October 12, 2010 5:01 PM | Report abuse

DA/DT was created by executive order by President Clinton -- it wasn't a piece of legislation in the first place, just the stroke of a President's pen. So if it has now been challenged in court as unconstitutional and enjoined -- so be it.

Posted by: fmjk | October 12, 2010 5:14 PM | Report abuse

Yippee. This move will save the Navy money, since it removes justification for separate sex berthing and heads (showers/tiolets) onboard ships, always an expensive addition. If a female sailor is "uncomfortable" sleeping and showering with males, she is just another man-hating bigot uncomfortable in her own sexuality who failes to trust the professional demeanor of the men who would be sleeping, dressing and showering next to her. Judge Phillips, you go girl!

Posted by: feslop | October 12, 2010 5:15 PM | Report abuse

For all of those decrying this as judicial activism, please keep in mind that the purposes of the court is to interpret the laws and strike down those it deems as violating the law of the land.

After all... the courts are a separate and equal branch of government under the American system of government. Since this is the way our constitution set up our system of governance, we need to take the good with the bad in terms of judges decisions.

I am vehemently and to the core of my being opposed to discrimination in any guise or form, including 'don't ask-don't tell'. To me, my own sexual orientation as a healthy heterosexual male has nothing to do with this principle.

However... I am a bit uneasy about this ruling on a number of grounds. The first and foremost is that the military doesn't exactly function as a constitutional democracy. In the military, you can be severely punished for what in free society are established rights like freedom of speech, even freedom to dress as you choose. Indeed, many of the ordinary functions of the military break down if the same rules are imposed on it as on the rest of society.

So, while I totally agree that this policy needs to go, I am uneasy that a judge would interfere with the military like this. Lets say that someone wanted to dress just like they wanted while on duty. Could a judge require the military to stop imposing a uniform on people because it violates peoples right of free expression?

The mind boggles at the possibilities...

Posted by: reussere | October 12, 2010 5:16 PM | Report abuse

So if this ruling is a bad idea, I guess the Court ruling separate but equal was unconstitutional was a bad idea also.

Posted by: LisaJain1 | October 12, 2010 5:16 PM | Report abuse

How does a federal district judge in CA have any jurisdiction over the entire country? Seems like a lot of power to give to one person not beholden to the people.

Posted by: cleancut77 | October 12, 2010 5:16 PM | Report abuse

I appreciate justice no matter which branch of government it comes from - judicial, legislative or executive.

Posted by: wmaindependent | October 12, 2010 5:20 PM | Report abuse

The arrogance of the judiciary. What kind of "democracy" do we live in when ONE person can decide how 300 million will live?

Social policy is the purview of the elected representatives, NOT a judge. This is dangerous stuff.

Posted by: silencedogoodreturns | October 12, 2010 5:21 PM | Report abuse

Not judicial activism. Sound application of Constitutional law.

Posted by: dennob | October 12, 2010 5:21 PM | Report abuse

Jonathan,

First of all, lets not confuse the issue. The prohibition against gays in the military dates back to before World War I, not 17 years. DADT was the compromise adopted by Clinton when he tried to remove all prohibitions and faced overwhelming opposition in Congress. DADT, as the title implies, means that gays in the military who don't declare their sexual preference or openly display it by their conduct cannot be investigated and discharged, as was the policy before 1993.

I applaud you condemnation of Harry Reid for the measure failing in the Senate. That is precisely where the blame lies for the failure of the Congress to modernize a rather obsolete personnel policy. His arrogance speaks volumes about why the Democrats are going to have a very bad day on November 2.

Posted by: hisroc | October 12, 2010 5:25 PM | Report abuse

Does "serving openly" also mean cross-dressing in military uniforms too?

Posted by: lindalovejones
************
Is there a SHTFUP button somewhere on you?

Posted by: LABC | October 12, 2010 5:28 PM | Report abuse

The courts have usually taken the lead when the legislature(s) are unable to act. In the case of DADT, procedural rules in the Senate allowed a minority to stop legislation. Do you really think the Congress or state legislatures would have overturned separate but equal? To require indigent defendants be provided with counsel? To declare evidence seized without court approved warrants inadmissible at trial? To prevent federal and state governments from banning the sale of contraception? To declare it illegal to ban inter-racial marriages? The courts offer protection from legislators who don't want to address "hot button" topics or want to impose their beliefs on others.

Posted by: blpeyton | October 12, 2010 5:29 PM | Report abuse

Please fill me in, FESLOP, as to how this ruling will have any impact on the Navy's (or any other branch of the military's) separate shower facilities for men & women. We understand your sarcasm, but it appears to be mis-directed.

Posted by: bigfish2 | October 12, 2010 5:30 PM | Report abuse

Congress is too dysfunctional to run the country, and it has been for years, and it is only going to get worse. Its great a court could step in and set things right.

Until we have a viable third party don't look for Congress to accomplish anything much.

Posted by: Maddogg | October 12, 2010 5:30 PM | Report abuse

It's humorous to read the comments of those bemoaning the action of the US District Judge as if the order were something extraordinary in scope. The US Supreme Court has original jurisdiction in very few cases so almost every case inwhich a law is challenged starts at the level of the trial court (the District Court). The trial judge hears the evidence and issues an order. If that order concludes that a law is unconstitutional as applied, it is usually accompanied by an injunction on enforcement. The government can then appeal to the US Circuit Court and sometimes directly to the Supreme Court. The appeals court can dissolve the injunction or allow it to remain in place pending appeal. This is the way our system of justice was designed and it really works quite well. The only objections usually come from those who don't understand it or who have an axe to grind so they attack the "activist" courts.

The idea that a court should not have the authority, indeed the duty, to overturn in unconstitutional law or executive order is absurd. Otherwise, there would be no need for a judicial system or a constitution for that matter. Congress could just make the rules as they go along with no boundaries whatsoever.

Finally, we don't live in a "pure democracy" in which every decision is made and controlled by the emotion and caprice of the vocal majority of the day. The dangers of a pure democracy are as great as a pure theocracy. This country's government was designed with a series of checks and balances to prevent the most fundamental rights of the minorities from being overrun and what you are now witnessing is that system in action. In the end, the Administration can choose to challenge the injunction or it can just let the Executive Order that created DADT die a natural death. If Congress doesn't like it, it can codify DADT and the Courts can then deal with it from the perspective of a law as opposed to an EO, which might change the outcome.

Those opportunistic purists who call the courts activists when displeased with a ruling but embrace the courts when they favor the outcome ought to take a serious look inward and challenge their own moral bearings.

Posted by: MdLaw | October 12, 2010 5:39 PM | Report abuse

To lindalovejones: what does cross-dressing have to do with homosexuality?

Posted by: mebutle | October 12, 2010 5:39 PM | Report abuse

Nobody cares.

Just get over yourselves and move on.

It's the 21st Century and it was only you old people who had problems with gay people in the military, anyway.

Canada and other NATO countries have had openly gay military for so long that people signed up, served a full highly-decorated career, fought in Afghanistan, and retired with full military pensions after multiple decades of service. They even got legally married and all that stuff.

Seriously, it's over. And from the perspective of the actual soldiers on the ground, it's a GOOD thing.

Posted by: WillSeattle | October 12, 2010 5:40 PM | Report abuse

Fair enough, but the commentary might be missing the point. Congress isn't going to act. So let the ruling stand without appeal. Then, the Administration can issue executive orders to implement changes after DOD's report is released in early December. The whole thing is SO ridiculous. Openly gay and lesbian soldiers already serve in the armed forces of our principal allies, including the United Kingdom, Australia, and Canada. And for heaven's sake, Alexander the Great had a male lover and the Greek army attended the lover's funderal in Persia. Gays in the military? The already are and always have been.

Posted by: Aurellano | October 12, 2010 5:42 PM | Report abuse

Hopefully congress (the Senate) will also do their duty and pass it into law so that the perception amongst the troops is not that some activist judge is interfering with the military. The true reality is that the military IS ready for the change, just not a small (the naive and/or bigoted) portion of the American public.

Posted by: greenling | October 12, 2010 5:42 PM | Report abuse

Don't you get it, Mr. Capehart? Members of the Senate are DELIGHTED that the federal court has issued this decision. In doing so the court has relieved the legislative branch of the political burden of taking action, and taking action via a recorded vote is precisely what the Congress, in this case the Senate, does not want to do. Allowing the court to intervene serves two purposes, it deals with the substantive issue that DADT is an absurd, now unconstitutional policy, and it allows the pols to gripe about activist judges! From the perspective of those courageous souls who occupy the Senate's ornate chamber, this is the best of all worlds.

Posted by: top2dogs | October 12, 2010 5:43 PM | Report abuse

Yes, that is the only good reason to be disappointed by this decision. It should never have been necessary.

That said, I'm glad the ruling was handed down. Sometimes Congress is too cowardly to follow the Constitution.

Posted by: bigbrother1 | October 12, 2010 5:44 PM | Report abuse

When will they ban idiots and loudmouth braggarts from the military?

Posted by: blackmask | October 12, 2010 5:46 PM | Report abuse

Johnathan, I have one thing to say to your anger. BROWN V. BOARD OF EDUCATION!!! The Brown court was correct to strike down separate but equal when the Congress and the President did not have the political will to do so. Courts are suppose to be above politics, so the Judge got it right by striking down "don't ask, don't tell."

Posted by: kevltrlaw | October 12, 2010 5:48 PM | Report abuse

oops, my previous entry said I was a 'healthy' heterosexual male. Bad choice of words. I meant that I was happily heterosexual. I hate reading one of my posts and wincing at it. Anyone offended please accept my apology.

Posted by: reussere | October 12, 2010 5:49 PM | Report abuse

I resent a California judge making any rules for the military. I would resent any hard wired civilian judge making rules for the military. If you have served or are serving in the military you may speak to military issues. If not military, then leave things military to the proper US Gov. authority. Lawyers have this country so tied in knots, nothing gets done the way it should.

Posted by: oldbb | October 12, 2010 5:51 PM | Report abuse


Silencedogood?

I knew Silence Dogood, and YOU'RE no
silence dogood.
You're just another fetid, whinning right wing know-it-all who knows nothing.

Who HASN'T, OBVIOUSLY heard of the constiutition, which has something to say about the courts. And how they work.

Posted by: whistling | October 12, 2010 5:55 PM | Report abuse

For those lamenting the issue of a single judge overturning any law, please remember that whether you agree of not with this judges stance - we live in a Republic, not a Democracy. That aspect of our government is enshrined in the Pledge of Allegiance.

Posted by: alt3 | October 12, 2010 5:56 PM | Report abuse

To those expressing an opinion on DADT, on the recent "ruling to overturn" or any other matter that you feel strongly about, I'd ask:

How is it that you feel involved, or that you have "standing" in the matter ?

Have you worn the uniform ?

What percentage of men and women presently serving would you say are gay, lesbian, by-sexual ...or anything other than "just straight" ?

Nearly any law or rule we enact that effects hundreds of thousands of people, their families, their work-day, their morale, ...you get the point... -- should include the feelings of those people, people who've gone before them and their families.

Including Mr. Capehart, Judge Phillips and anyone else expressing glee at over-ruling DADT ... How many would you guess have served in the armed forces and DO HAVE STANDING ..???

Posted by: lavellemh | October 12, 2010 5:57 PM | Report abuse

It is a great day when our justice system finally gets it right. But will they allow the soldiers that were unfairly dismissed back into the service of our land?

I for one would like to see Lt.Choi apart of a gov't task force to correct the attitude of the council

http://ourscenetv.com/posts/465/breaking-the-chains-on-don-t-ask-don-t-tell

Posted by: chrisatlier | October 12, 2010 6:01 PM | Report abuse

The Senate had it's best shot to repeal the law. With the 60 vote threshold, it will be an impossibility after the November election, lame duck session notwithstanding. In his State of the Union earlier this year, Obama promised that DADT would end this year; ergo, it is important that Obama signals his DOJ to NOT appeal this decision, because the Executive and Congressional branches of government refuse to act. If he does not, he will permanently lose his progressive base.

Posted by: dozas | October 12, 2010 6:01 PM | Report abuse

What a surprise! Jonathan sells out the gay community and parrots whatever the administration says. I guess skin color is thicker than sexual orientation, huh?

Posted by: uh_huhh | October 12, 2010 6:01 PM | Report abuse

Seems like they would wait for the results of the Pentagon study.

Instead, a lot of activists are trying to jump ahead and take "credit" for the change.

This is more about politics than policy.

Posted by: Benson | October 12, 2010 6:03 PM | Report abuse

To reinforce the point, DA/DT and its origin as an Executive Order is not at issue. The problem is that sodomy is against the law in the Armed Forces, as codified by the Congress in the Uniform Code of Military Justice (UCMJ):

"Punitive Articles of the UCMJ
Article 125—Sodomy
“(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy."

It's this law, not the DA/DT policy, that must be changed, and that can be done by only the Judicial or Legislative Branches. So Mr. Capehart has put his finger on the question: this decision must be made by one or the other.

Posted by: qtrfoil85 | October 12, 2010 6:11 PM | Report abuse

Another case of a liberal appointed judge from california making laws they have no background of information on, certainly no personal, in this case military background, and making a law instead of Congress going through their deliberations in their usual ramshackle way. Term limitations for appointed judges should go along with term limitations for Congress so we can get rid of the SOB's.

Posted by: GordonShumway | October 12, 2010 6:14 PM | Report abuse

Another case of a liberal appointed judge from california pinko commie blah blah blah blah

Posted by: GordonShumway

-

Whoa! Alf is a teabagger?

Posted by: popkultur | October 12, 2010 6:29 PM | Report abuse

Yeah, I'm 'angry' too.

The 'Judge'.

A female. California born, Californa raised. California educated. A Californian.

Now, she never served in the military and never will. But, she wants to protect the interests of her 'sisters' and thus has grandstanded with this ruling.

She should be a home-maker, washing diapers, and serving her husband as a good wife. But, that won't happen either.

Posted by: mosthind | October 12, 2010 6:29 PM | Report abuse

I'm disgusted both by discrimination on the basis of sexual orientation and by legislation without representation.

Posted by: politbureau | October 12, 2010 6:31 PM | Report abuse

DCSteve1
The courts are part of the democratic process.
tony_in_Durham_NC
If you define judicial activism as any action by a judge, then you are correct.

Posted by: veritasinmedium | October 12, 2010 6:32 PM | Report abuse

Of course many of us were forced to join the military or be drafted anyway. So the whole psychology of joining is different. The modern soldier is a mix of those who want to make a career in the military and those who just need the job to get a meal and clothing. So it will be interesting to see how this pans out. I just remember basic training in the army and barracks which could be hell for a non-conformer at night. Also the pressures on a recruit are very different between services. Physical stress was a big factor in he army but a relative joined the Air Force as an EM and they didn't do it that way.

Posted by: band | October 12, 2010 6:32 PM | Report abuse

Congress AGAIN failed to address the matter in a reasonable and timely way. The Republicans had the chance to do their jobs AND do the right thing by repealing this discriminatory law. But, no. They chose to turn it into a political stunt and shut the issue down. They have NO right to be screaming about "activist judges", though they will. If they won't do the job they're elected to do, don't complain when someone else does.

Posted by: jaynashvil | October 12, 2010 6:36 PM | Report abuse

I agree. This ruling makes me angry. I thought that DADT was dumb when it was passed in the 1990s, and I have no problem with Congress ditching it. For a court to invalidate the policy, though, perturbs me for two reasons:

1) This should be done by Congress. Congress and the president are spineless. They've had every opportunity to vote on DADT, and they probably have the votes to do so. But Congress chose not to act. It would have been better if the courts did nothing and forced Congress to finally do something.

2) The precedent of courts setting military policy is dangerous. When some other group decides to challenge a military operational policy for any reason, does this set precedent that civilian courts have jurisdiction? I believe in civilian control of the military, but that control is given to Congress and the president, not to courts. Courts may be able to invalidate military actions if they involve quartering troops in homes or something similar, but court oversight of the military seems highly questionable in most cases. Courts simply aren't in the position to evaluate combat operations decisions.

Posted by: blert | October 12, 2010 6:36 PM | Report abuse

It sure worked for Brown vs. Board, now, didn't it?

Posted by: piotrorloff | October 12, 2010 6:39 PM | Report abuse

"Otherwise, we should all get comfortable with the federal courts doing what Congress can't -- or won't."

I don't understand this or I think your anger is misplaced. It's not the federal courts "doing" what Congress can't or won't - it's the federal courts telling the Congress what it CAN'T do when it comes to constitutional rights. That's the whole purpose of the federal courts isn't it? They're doing their job. Your anger should be at Congress for thinking that they can pass laws and infringe on rights in the first place - not at the federal courts for enforcing the Constitution.

Posted by: hohandy | October 12, 2010 6:42 PM | Report abuse

I thought that a decision by a district judge was valid only in their district and not binding on any other district. The next higher court, The Court Of Appeals decisions are binding on the states or area that they have jurisdiction over and again not binding on any other appeals court area. And that the only court that has binding jurisdiction over the entire US justice system is the Supreme Court. If this is correct then how can this judge issue an world-wide injunction?

Posted by: rchayes | October 12, 2010 6:44 PM | Report abuse

If you think the American taxpayers are going to pay for on-base housing for Corporal Lance Jones and Sargent Harry Smith you are totally out of touch!

Posted by: thornegp2626 | October 12, 2010 6:45 PM | Report abuse

Excellent decision - I applaud the judge and the Log Cabin Republicans for making this happen. Obama and the Democrats continue to disappoint & they will pay.

Their mistake? Thinking they could work w/ the asswipes who support DADT. Ignore DADT supporters, just look beyond them as the country at large does. Setbacks do occur in politics, but ultimately the line of progress continues forward. It will take time, but we will break past this weak mindset and those who hold it will be relegated to the dustbin of history.

Posted by: thesack | October 12, 2010 6:47 PM | Report abuse

Honestly? The only people that should have a say are the one's that are immediately affected. Too many American's have big mouths about things that don't concern the, or that they've never considered being involved in. Why is it that the minority always has the biggest mouth. How is it that those who make the biggest noise are the smallest part of the population. The same way that a man shouldn't be voting on how women should act, or groom themselves (and visa versa) non-military people should keep their opinions to themselves. Does this mean that I'm anti-gay. Heck No! But there's a time and place for everything and the United States Military, as it stands has kept our country safe for 2 centuries. The heroes/alpha males that charge the hill and risk their lives should be the only ones that matter in this vote.

Posted by: nickfleming1 | October 12, 2010 7:00 PM | Report abuse

Honestly? The only people that should have a say are the one's that are immediately affected. Too many American's have big mouths about things that don't concern the, or that they've never considered being involved in. Why is it that the minority always has the biggest mouth. How is it that those who make the biggest noise are the smallest part of the population. The same way that a man shouldn't be voting on how women should act, or groom themselves (and visa versa) non-military people should keep their opinions to themselves. Does this mean that I'm anti-gay. Heck No! But there's a time and place for everything and the United States Military, as it stands has kept our country safe for 2 centuries. The heroes/alpha males that charge the hill and risk their lives should be the only ones that matter in this vote.

Posted by: nickfleming1 | October 12, 2010 7:00 PM | Report abuse

Defines judicial activism. doesn't it.

Is there no way out for a judge? Can he/she not say.... this is nonsense... back to the drawing board?

Why not?

Or was this by choice? Guess you'd have to know the judge.

Posted by: docwhocuts | October 12, 2010 7:04 PM | Report abuse

What do you mean "get comfortable?" And why must the repeal be enacted by Congress? The judicial branch is a check on the other two branches. It is acting exactly as it should, under the frameowrk established by our founding fathers. Congress and the Executive pass bills and sign laws into effect, and the courts strike them down where they are deemed to be in error.

This is not something new or a change in direction of the courts.

If you mean "get comfortable" with the courts acting where Congress won't. Yes, well that is a sad but accurate statement on the current legislative logjam, not a statement on the courts. No reason to be angry at the judicial branch. Every reason to be angry with the Congress.

Posted by: johnnycomelately1 | October 12, 2010 7:06 PM | Report abuse

Yeah, more hate speech form ignorant folks.

Posted by: bobbarnes | October 12, 2010 7:08 PM | Report abuse

feslop, exactly how does this remove the need for separate showering and bunking facilities? DADT related to expulsion from the military based upon sexual orientation, not separation of sleeping and bathroom facilities based on gender. You are, to use a technical term, "an idiot".

Posted by: johnnycomelately1 | October 12, 2010 7:13 PM | Report abuse

One more comment with respect to unconstitutional vs accepted military behavior. Men who are focused on the enemy in battle shouldn't be worrying about their male lover (who may be sitting next to them), the same way that I shouldn't be distracted by a woman that I love sitting next to me in a foxhole. Dumb arguments like... well, if we were free to admit it, blah, blah, blah means that now the military has to worry about who to pair up with who because of emotional attachment. WAKE UP GUYS! This is not what the military is about.

Posted by: nickfleming1 | October 12, 2010 7:16 PM | Report abuse

Maybe a judge with an ounce of military expertise would have been reasonable.

Or a jury of military peers.

Seems the constitution has a few view points on this.

If the law were so discriminatory... so unconstitutional... did so much damage.... should it not have gone to criminal court?

then a military jury would be in order.

I wonder what 12 randomly selected soldiers would have to say.

Posted by: docwhocuts | October 12, 2010 7:17 PM | Report abuse

The arrogance of the judiciary. What kind of "democracy" do we live in when ONE person can decide how 300 million will live?

Social policy is the purview of the elected representatives, NOT a judge. This is dangerous stuff.

Posted by: silencedogoodreturns

+++++++++++++++++++++++++++++++++

silencedogood returns: the scary thing about this is your misguided opinion. The judicial branch is intended as a check of the other two branches. Its a backstop to prevent either one from overreaching, as they are prone to do. The legislative and executive branches are subject to political whims, and, thanks to idiots like you, force one or both of those branches to make bad decisions.

The found fathers were very smart and, knew that just because the majority rules does not mean that they are right. And in fact, the majority often acts like a mob of fools.

Posted by: johnnycomelately1 | October 12, 2010 7:22 PM | Report abuse

The arrogance of the judiciary. What kind of "democracy" do we live in when ONE person can decide how 300 million will live?

Social policy is the purview of the elected representatives, NOT a judge. This is dangerous stuff.

Posted by: silencedogoodreturns

+++++++++++++++++++++++++++++++++

silencedogood returns: the scary thing about this is your misguided opinion. The judicial branch is intended as a check of the other two branches. Its a backstop to prevent either one from overreaching, as they are prone to do. The legislative and executive branches are subject to political whims, and, thanks to idiots like you, force one or both of those branches to make bad decisions.

The found fathers were very smart and, knew that just because the majority rules does not mean that they are right. And in fact, the majority often acts like a mob of fools.

Posted by: johnnycomelately1 | October 12, 2010 7:22 PM | Report abuse

lindalovejones posts, "Does "serving openly" also mean cross-dressing in military uniforms too?"

Gee, was that snarky, or just plain ignorant?

Please note: Klinger was well-loved heterosexual cross-dressing fictional serviceperson.

Posted by: beargulch | October 12, 2010 7:23 PM | Report abuse


Nothing is goin to happen in a "lame duck session" of Congress. The Democrats could not get it done today. Harry Reed adjourned the Senate to focus on his losing Senate campaign. In three weeks there will be many fewer Democrats and maybe a Republican majority. The Supreme Court will strike down this ruling.

Posted by: screwjob21 | October 12, 2010 7:31 PM | Report abuse

Yes the congress should repeal DADT but the republikkkans will never vote publicly to do so. This way the liberals get what they want and the republikkkans can blame it on 'activist' judges.

Posted by: fudador | October 12, 2010 7:33 PM | Report abuse

In every war, from the Civil War, two world wars, the Korean and Vietnam Wars, and in Afghanistan and Iraq, gay Americans have served their country and shed blood for their country. On 911 they perished at the Pentagon and at the World Trade Center, and one of the people who tried to wrestle the hijackers in the plane that went down over Pennsylvania was gay. From the beaches of Normandy to the hills of Saigon, to the ruins at Ground Zero and to the streets of Baghdad the sacrifice gay members of the military silently made to their country lies hidden, except to their closest friends and family members.

Gay Americans are our sisters, brothers, friends, aunts, uncles, and neighbors. They are doctors, teachers, lawyers, judges, policemen, firemen, construction workers, chemists, accountants, athletes, and assembly line workers. They are and always have been willing to die on the battlefields our country fought on because they loved their country but it seems our country prefers to treat them as though they were dangerous aliens from another planet rather than see them as patriots who love their country who deserve to be treated just like we ourselves would like to be treated - with dignity and respect, not with hatred or discrimination. Is that too much to ask for?

Posted by: mjkoch* | October 12, 2010 7:37 PM | Report abuse

So does Judge Virginia run the entire country now? Yet another example of what a total mess our nation is in these days.

Posted by: LuckyGrad68 | October 12, 2010 7:42 PM | Report abuse

So does Judge Virginia run the entire country now? Yet another example of what a total mess our nation is in these days.

Posted by: LuckyGrad68 | October 12, 2010 7:42 PM | Report abuse

The judge's point of stopping speech about yourself making DADT unconstitutional is very valid since DADT does not forbid being gay, only being open about it. SCOTUS in my view will abide with the decision even with the power of provide for the national defense. Don't think Obama will have Holder contest it and judging by the housecleaning like Jones, Emanuel, Obama may have set the plate for it's repeal. Judging by her demeanor after the resignation the Hillary faction of security has won. She wants Palestine and peace there like Carter's Egypt accord as the feather in her cap.

Posted by: jameschirico | October 12, 2010 8:00 PM | Report abuse

The judiciary interprets our laws and not Congress. The court ruled it is unconstitutional. Obama sworn to uphold the constitution and his obligation is to tell the military stop discriminating to American citizens. But with with this ambivalent president we never know.

Posted by: rappahanock | October 12, 2010 8:00 PM | Report abuse

It is interesting to see all these so called "constitutional conservatives" screaming about the fact that the judiciary actually has the power to overturn unfair, unjust or (in this case UNCONSTITUTIONAL laws).

Last time I checked the judiciary was the third branch of government, the coequal of the executive and legislative branches, and by design apolitical (i.e. not elected). Which is exactly how it is written in the Constitution. Apparantly all cases are supposed to be decided exactly how the Republicans want them to be decided and the actual FACTS dont seem to matter a whole lot. (DADT was determined to violate the First Amendement, which last time I checked was definitely in the Constitution).

Posted by: MarcMyWords | October 12, 2010 8:02 PM | Report abuse

Most people join the military for a job with good benefits and with hopes not to get killed before they can get out.

If discussing your sex life is not required to join, just keep you personal business to yourself, shut up and just do the job you're getting paid for.

Posted by: leybrabear | October 12, 2010 8:12 PM | Report abuse

Quote: So, while I totally agree that this policy needs to go, I am uneasy that a judge would interfere with the military like this.

Or like Harry Truman did when he ordered integration? The UCMJ will prevent the other issues you try to equate. This is the equivalent of a civil rights act, and, if you're too young to remember the Fifties and Sixties, the judiciary was the beginning of that transformation too.

Quote: Social policy is the purview of the elected representatives, NOT a judge. This is dangerous stuff.
No. As I said above, the judiciary -- whether it's Brown versus Board of Education or Loving versus Virginia -- has the duty to rule on civil rights issues.
Quote: Nearly any law or rule we enact that effects hundreds of thousands of people, their families, their work-day, their morale, ...you get the point... -- should include the feelings of those people, people who've gone before them and their families.
If that were the case, my father would have served in a segregated military with women relegated to the WACs. Feelings have little or no place in the military.


Posted by: Fabrisse | October 12, 2010 8:18 PM | Report abuse

America is ruled by unelected, unaccountable public officials and being bled dry by "legislators" whose only real priority is feathering their own nests.

That pretty much explains why the "democracy" it transplanted to Iraq turned out the same way.

Posted by: politbureau | October 12, 2010 8:19 PM | Report abuse

Capehart, we know that most of those in Congress; especially, those GOP representatives are not even qualified to interpret the law or be judges. They are nothing but a bunch of "partisan" hacks elected to Congress by their "partisan" hacks.

Posted by: lcarter0311 | October 12, 2010 8:22 PM | Report abuse

This is NOT judicial activism. This is the SC doing its job of protecting our rights. The Constitution doesn't exclude gays from having the same rights as everyone else.

This ruling should have also been based on the second amendment.

Posted by: timothy2me | October 12, 2010 8:27 PM | Report abuse


There is no constitutional right to join he U.S. military.

Posted by: screwjob21 | October 12, 2010 8:42 PM | Report abuse

Serving in the military is not a right. For example, the opportunity for military service is denied to citizens with countless medical conditions (despite the Americans with Disabilities Act) and to citizens if they are above a certain age (despite prohibitions against age discrimination in other fields of employment). Entrance to the service academies is forbidden to anyone who is married or pregnant. Each of these restrictions -- and the current DA/DT policy -- may or may not make sense from the perspective of national and/or military policy, but discriminating against any group of people when it comes to military service is fundamentally different than discrimination when it comes to the exercise of constitutionally guaranteed rights. Of which the right to serve in the military is not one. Therefore, the proper forum for setting policy regarding military servcie rests with the legislative and executive branches. Furhermore, it seems inappropriate to justify judicial policy setting on any particular issue just because one is dissatisfied with current legislative or executive branch policy.

Posted by: aangleman | October 12, 2010 8:45 PM | Report abuse

silencedogoodreturns: "The arrogance of the judiciary. What kind of "democracy" do we live in when ONE person can decide how 300 million will live?

Social policy is the purview of the elected representatives, NOT a judge. This is dangerous stuff."

The US isn't a democracy. It is a Constitutional republic. The word "democracy" isn't found in the Constitution.

Posted by: timothy2me | October 12, 2010 8:45 PM | Report abuse

You know, if all the religious bigots would stop being angry all the time, and dragging our military into foreign wars of adventure in countries that don't actually have enemies of America in them (cough *IRAQ*), maybe we could actually accomplish something.

17 wasted years, just because old people have a problem with gay soldiers and the rest of us don't.

Time's Up!

Posted by: WillSeattle | October 12, 2010 8:46 PM | Report abuse

This is most unfortunate. Policy decisions on such sensitive matters must not be decided by unelected Federal judges imposing their own policy preferences on the American people. Mr. Capehart enjoins us to become "comfortable" with the court ruling. No, this just ensures a very protracted and bitter debate, similar to what resulted from the 1973 Roe v Wade decision, when the "Supremes" took it upon themselves to act as legislators and overturned many states' laws dealing with abortion. Almost 40 years later, the very bitter consequences of that act of folly are here to stay. Although it's increasingly tempting for liberals to try to make end runs around the legialative process when they can't induce elected representatives to implement their agenda, it's an extremely shortsighted approach that merely adds to the poisonous, divided political atmosphere in which we live.

Posted by: msgrowan | October 12, 2010 8:58 PM | Report abuse

This is most unfortunate. Policy decisions on such sensitive matters must not be decided by unelected Federal judges imposing their own policy preferences on the American people. Mr. Capehart enjoins us to become "comfortable" with the court ruling. No, this just ensures a very protracted and bitter debate, similar to what resulted from the 1973 Roe v Wade decision, when the "Supremes" took it upon themselves to act as legislators and overturned many states' laws dealing with abortion. Almost 40 years later, the very bitter consequences of that act of folly are here to stay. Although it's increasingly tempting for liberals to try to make end runs around the legialative process when they can't induce elected representatives to implement their agenda, it's an extremely shortsighted approach that merely adds to the poisonous, divided political atmosphere in which we live.

Posted by: msgrowan | October 12, 2010 8:58 PM | Report abuse

...Those opportunistic purists who call the courts activists when displeased with a ruling but embrace the courts when they favor the outcome ought to take a serious look inward and challenge their own moral bearings.

Posted by: MdLaw | October 12, 2010 5:39 PM

That is exactly the message I have been delivering to my Leftist friends who insist that Bush stole the election in Florida or that the war in Iraq is illegal.

Both actions were legal. But will they listen? As an ancient book of wisdom advises it all depends on whose ox was gored.

I think every Leftist "ought to take a serious look inward and challenge their own moral bearings".

Posted by: krankyman | October 12, 2010 9:01 PM | Report abuse

Heh heh, if you think this is bad (it is), just wait until Judge Hudson strikes down Obamacare. You're gonna really flip then.

Posted by: CaughtInAMosh | October 12, 2010 9:02 PM | Report abuse

I think every Leftist "ought to take a serious look inward and challenge their own moral bearings".
-------------------
Posted by: krankyman | October 12, 2010 9:01 PM | Report abuse

Heh heh, if you think this is bad (it is), just wait until Judge Hudson strikes down Obamacare. You're gonna really flip then.

Posted by: CaughtInAMosh
------------------

Nothing President Obama has done has been struck down by the courts. You can't sau that abuut the Bush administration can you.

Posted by: timothy2me | October 12, 2010 9:14 PM | Report abuse

I am glad that homosexuals and their supporters are openly identifying themselves.

That saves a lot of guessing later when there is an accounting.

Posted by: numbersch13 | October 12, 2010 9:14 PM | Report abuse

There is no constitutional right to join he U.S. military.

Posted by: screwjob21

That was the original intent of the second amendment.

Posted by: timothy2me | October 12, 2010 9:18 PM | Report abuse

Just heard on the news - Pentagon sources say that because of the repeal of DADT, butt plugs will immediately be issued to all service members worldwide. On a seperate note, butt plug maker Imsamol LLC, saw their stock rise 15% at the end of the trading day.

Posted by: emyers12345 | October 12, 2010 9:20 PM | Report abuse

But this ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "separate but equal" ought to be done by local school boards. Unfortunately, local school boards have failed to act.

Posted by: DoctorWhom | October 12, 2010 9:21 PM | Report abuse

Just heard on the news - Pentagon sources say that because of the repeal of DADT, butt plugs will immediately be issued to all service members worldwide. On a seperate note, butt plug maker Imsamol LLC, saw their stock rise 15% at the end of the trading day.

Posted by: emyers12345 | October 12, 2010 9:21 PM | Report abuse

Just heard on the news - Pentagon sources say that because of the repeal of DADT, butt plugs will immediately be issued to all service members worldwide. On a seperate note, butt plug maker Imsamol LLC, saw their stock rise 15% at the end of the trading day.

Posted by: emyers12345 | October 12, 2010 9:22 PM | Report abuse

Blacks have been successfully integrated into the military, but women have not. Unlike black male heterosexual soldiers, women do not bunk and bathe heterosexual males.

We do not require that a woman say or believe that all men are rapists in order for her to assert a privacy right from all men. Why do we say that heterosexual males who want their privacy from all homosexuals are homophobes that have no right to privacy?

I'm sure the question of locker rooms has been addressed in labor law, when companies sought to exclude women from some positions by claiming there weren't adequate changing facilities for them.

The supreme court has addresse the topic of a constitutional right to privacy from the eyes of the opposite sex, and ruled in favor of a person's privacy.

Posted by: blasmaic | October 12, 2010 9:25 PM | Report abuse

@numbersch13:

I am glad that homosexuals and their supporters are openly identifying themselves.

That saves a lot of guessing later when there is an accounting.

- - -

So you don't believe that your God is omniscient?

Posted by: DoctorWhom | October 12, 2010 9:26 PM | Report abuse

"The precedent of courts setting military policy is dangerous. When some other group decides to challenge a military operational policy for any reason, does this set precedent that civilian courts have jurisdiction? I believe in civilian control of the military, but that control is given to Congress and the president, not to courts. Courts may be able to invalidate military actions if they involve quartering troops in homes or something similar, but court oversight of the military seems highly questionable in most cases. Courts simply aren't in the position to evaluate combat operations decisions.

"Posted by: blert | October 12, 2010 6:36 PM"

Actually, incorrect, as the Courts have been throwing out birther lawsuits brought by military personnel saying they don't recognized Obama's authority as CiC, although they sure don't mind those govt. paychecks and taxpayer-provided health care coverage, after all, why accept govt. benefits if you don't recognize the President's legitimacy as CiC, other than pure, easily-debunked hypocrisy that is.

And last I checked, since we're NOT a military junta, I, or anyone else who hasn't served, have every right, under our Constitution, to state an opinion on this issue, unless, of course, those "geniuses" using the "only the military personnel can speak about military issues" BS also then claim it's perfectly appropriate for non-military to withhold taxes if they're not allowed to express an opinion.

Perhaps the movie "Seven Days In May" will help those pushing the above view, although do keep in mind, it's fictional, NOT a documentary or primer on how to overthrow the duly-elected President with a military dictatorship.

Homophobia, especially when we're discharging badly needed personnel voluntarily serving in a desperately-overstretched and over-burdened military, hurts this country and places us at physical risk, points that should be embraced by those bizarre conspiracy theorists so convinced our country is at physical risk of Sharia Law being implemented upon successful establishment of an Islamic Caliphate, a truly laughable assertion.

What a dilemma for extremists who hate Muslims and homosexuals, the bigots can't hate both equally in this case, one of their prize prejudices will have to be tossed onto the trash heap.

Excellent ruling upholding the rule of law for everyone, except the haters, whose whines and caterwauling are the sweetest of music to my soul.

Posted by: kingcranky | October 12, 2010 9:26 PM | Report abuse

This is nasty. I remeber being in the 8th grade and the reason they came up with something for our military-its because things were getting out of hand with the soldiers. Something had to be done.
Now as far as the don't ask don't tell was just to delay the issues at hand. How about protecting & respecting someone. Rome had the best military ever they had gay/lesbian rights-it went down from there did it not. We are a great country-to bad that Good can't be good and bad can't be seen as bad. It's that simple.
Our eyes are blinded to goodness. Everyone wants rights but nobody wants to sacrifies anything any more. When America was first establish they use to burn the witches because of the evilness it represented(not good). Humanity spoke out and said that was not right(good thing). Someone fighting and representing our country as a gay/lesbian (bad thing)read the bible. Our country without out Our Lord God is a disaster. Man leading Man leads to death and distruction. God Leading us sets a foundation. Hitler killing jews(simply
people) bad thing. Not One person wants to be the bad guy so they ralley together and form groups to see who is right and who is wrong. I fear for our country if we don't get it together.
Columbus day was on the calender but he was not the first one to discover America was he. Not even our text books want to say the truth. Freeing slaves good thing(simply people). They want to take Thanksgiving,Christmas & Easter off the calender but want to keep jewish holidays, Muslim holidays, Halloween etc..
Goodness where has it gone. Where are the American Values. I don't think we have any, any more. I Pray for mercy upon our country Lord forgive us.

Posted by: eili_07seewhat | October 12, 2010 9:27 PM | Report abuse

Blacks have been successfully integrated into the military, but women have not. Unlike black male heterosexual soldiers, women do not bunk and bathe with heterosexual males.

We do not require that a woman say or believe that all men are rapists in order for her to assert a privacy right from all men. Why do we say that heterosexual males who want their privacy from all homosexuals are homophobes that have no right to privacy?

I'm sure the question of locker rooms has been addressed in labor law, when companies sought to exclude women from some positions by claiming there weren't adequate changing facilities for them.

The supreme court has addresse the topic of a constitutional right to privacy from the eyes of the opposite sex, and ruled in favor of a person's privacy.

Posted by: blasmaic | October 12, 2010 9:28 PM | Report abuse

...Those opportunistic purists who call the courts activists when displeased with a ruling but embrace the courts when they favor the outcome ought to take a serious look inward and challenge their own moral bearings.

Posted by: MdLaw | October 12, 2010 5:39 PM

That is exactly the message I have been delivering to my Leftist friends who insist that Bush stole the election in Florida or that the war in Iraq is illegal.

Both actions were legal. But will they listen? As an ancient book of wisdom advises it all depends on whose ox was gored.

I think every Leftist "ought to take a serious look inward and challenge their own moral bearings".
Posted by: krankyman | October 12, 2010 9:01 PM | Report abuse

A fair reading of my comment will show it wasn't meant to be partisan, left or right.

Posted by: MdLaw | October 12, 2010 9:35 PM | Report abuse

I hadn't realized this before but it is obvious from the postings. A majority of Americans are gay! :)

Posted by: rjpal | October 12, 2010 9:42 PM | Report abuse

This should have been enacted by Congress. Unfortunately the US Congress is populated by craven corrupt cowards. So what's a Federal Judge to do when the legislative body violates the Constitution and lacks the fortitude to correct itself?

It is also unfortunate that this is such a political football and now we will hear the ranting from the republicans and the whining from the democrats and more outrage from the tea baggers. Pretty tiresome stuff. What if people just exercised common sense and did the right thing...that which promotes health and well being.

Posted by: greeenmtns | October 12, 2010 9:49 PM | Report abuse

A few other points

"I'll save for another time my fire breathing about the misguided procedural tactics employed by Senate Majority Leader Harry Reid (D-Nev.) that caused pro-repeal Republicans such as Sen. Susan Collins (Maine) to vote against the Defense bill to which the repeal was attached."

Mr Capehart, why do you give cover to such a rightwinger like Sen. Collins when she so clearly put loyalty to her party's obstructionism far above doing what's right by those wishing to serve?

She put herself on the wrong side of history with this vote, she deserves no tears or spin to the contrary, only scorn and ridicule.


Quoting myself

"And last I checked, since we're NOT a military junta, I, or anyone else who hasn't served, have every right, under our Constitution, to state an opinion on this issue, unless, of course, those "geniuses" using the "only the military personnel can speak about military issues" BS also then claim it's perfectly appropriate for non-military to withhold taxes if they're not allowed to express an opinion.
Posted by: kingcranky | October 12, 2010 9:26 PM"

Besides, that kind of elitist, anti-intellectual attitude-not being allowed to talk about something one has no personal connection to/with-would sure shut up Sarah Palin, Michelle Bachmann, Glenn Beck, or any of the other blithering, irrationally irate, extremist teabagging knuckle-draggers so in abundance on the far-right these days.

Hmmm, on second thought, I may have to rethink my opposition to such an attitude if that's the outcome.


"Most people join the military for a job with good benefits and with hopes not to get killed before they can get out.
If discussing your sex life is not required to join, just keep you personal business to yourself, shut up and just do the job you're getting paid for.
Posted by: leybrabear | October 12, 2010 8:12 PM"

I'm pretty sure every woman serving in the military, who gets hit on by her male counterparts, and gets insulted or denigrated with labels like "man hater" when she turns them down, agrees with every word of your comment.


"@numbersch13:
I am glad that homosexuals and their supporters are openly identifying themselves.
That saves a lot of guessing later when there is an accounting.

- - -

"So you don't believe that your God is omniscient?
Posted by: DoctorWhom | October 12, 2010 9:26 PM"

Excellent point, this ruling obviously meets with God's approval, otherwise it wouldn't have been issued.

I'm wondering what the word "accounting" refers to with that particular post.

Posted by: kingcranky | October 12, 2010 10:00 PM | Report abuse

Hoorah for Mr. Capehart. His articulation is wonderful. As for the far right, Christians, and hard nosed Republicans, the alternative could be, it sounds to me, another striking option. Allow only proven heterosexual males and females, thereby protecting homosexuals from harm's way. Does that sound fair? You bet it ain't, but you can't have it both ways.

By the way, what's wrong with The All American Red Blooded He Man? Fairies must sace these big men to death!!!!!

Posted by: ray17 | October 12, 2010 10:00 PM | Report abuse

Hoorah for Mr. Capehart. His articulation is wonderful. As for the far right, Christians, and hard nosed Republicans, the alternative could be, it sounds to me, another striking option. Allow only proven heterosexual males and females, thereby protecting homosexuals from harm's way. Does that sound fair? You bet it ain't, but you can't have it both ways.

By the way, what's wrong with The All American Red Blooded He Man? Fairies must scare these big men to death!!!!! Wow, I wonder if we're better lookin', have better bodies, better lookin' genitals, and just plain better brains. Wadda ya thinkin'?

Posted by: ray17 | October 12, 2010 10:04 PM | Report abuse

If it weren't for "judicial activism", we would still have segregated schools, coerced confessions, and back-alley abortions. Sometimes the courts have to step in when the legislatures/congress fail to act.

Posted by: rstephenw | October 12, 2010 10:16 PM | Report abuse

How does a federal district judge in CA have any jurisdiction over the entire country? Seems like a lot of power to give to one person not beholden to the people.

Posted by: cleancut77

====================================

Pick up any Civics book and you'll learn the answer to that question.

Posted by: damascuspride04 | October 12, 2010 10:19 PM | Report abuse

I can understand, from Capehart's perspective, why he is angry at Harry Reid. Reid likely could have had the repeal of Clinton's policy passed in the Senate as a stand alone bill with only Democratic votes - what he did makes it look like either A. Reid doesn't really want it repealed for his own reasons and yet wants to make it look like Republicans stopped it so as to give himself, as a Democrat, political cover for a private agenda as such that he knows his voter base would dislike or B. Reid was trying to score political points against Republicans by attaching it to the defense bill and getting them to vote against that.
I can see why Capehart and others who favor repealing DADT would be angry at the Democrats, because they could have done so already if Reid wasn't playing political football with the issue instead.

Posted by: SCOTSGUARDS | October 12, 2010 10:31 PM | Report abuse

I'm disgusted when a judge believes all pet legal theories can be turned into law by calling it "unconstitutional" to live without those legal novelties. What is the judge saying, that the founders of the country wrote this into the Constitution and he/she is just "reading" what is written? Of course not, there is no such language in the Constitution as we have all read. Then is the judge saying that the Constitution means what he/she WANTS it to say, and everyone else has to just ACCEPT that Orwellian interpretation where words no longer have an agreed upon meaning? This seems the case, and should be immediate grounds for impeachment, and even felony charges brought for this judicial arrogance. Point to the exact words in the Constitution that back up the argument, don't just say "The Constitution means what I say it does regardless of the words our forefathers wrote." That is bringing us to judicial anarchy, and is treason against the Constitution. A judge like deserves both impeachment and treason charges to restore the Constitutional order by defending it against usurpers.

Posted by: DMBicksler | October 12, 2010 10:33 PM | Report abuse

Nobody cares.
Just get over yourselves and move on.

It's the 21st Century and it was only you old people who had problems with gay people in the military, anyway.

Canada and other NATO countries have had openly gay military for so long that people signed up, served a full highly-decorated career, fought in Afghanistan, and retired with full military pensions after multiple decades of service. They even got legally married and all that stuff.

Seriously, it's over. And from the perspective of the actual soldiers on the ground, it's a GOOD thing.

Posted by: WillSeattle | October 12, 2010 5:40 PM
-------------------------------------------
I take exactly the opposite view.
I might agree "that it's over."
That judge has just ruined the Best Military, in the World.
The Administraiton, failed to heed the warnings from Gen. James T. Conway, Commandant of the Marine Corps.
General Conway has said that if, and when Congress repeals the don't ask, don't tell " law, "we will obey the law."
Many Marines, who've had family traditions of Military Service, will simply walk away.
The same will occur, in the other services. Perhaps, this is O'bama's ultimate aim. Defeated, again, by a Trojan Horse.
Dennis

Posted by: Shadowsmgc | October 12, 2010 10:34 PM | Report abuse

If it weren't for "judicial activism", we would still have segregated schools, coerced confessions, and back-alley abortions. Sometimes the courts have to step in when the legislatures/congress fail to act.

Posted by: rstephenw | October 12, 2010 10:35 PM | Report abuse

Honestly...what on earth can the Congress do? Without a clear majority, on either side, they are doomed to a session of mediocracy because of Bipartisanship, no matter who is President. Thank God, someone did something about it.

Posted by: wegirl65 | October 12, 2010 10:41 PM | Report abuse

Unfortunately, it is likely the Supreme Court will eventually overturn this order as the Court, in several rulings, has determined the armed forces are exempt from many Constitutional rights, that they and Congress are best at determining which rights apply and which do not. The Robert's Court has demonstrated a proclivity to ignore precedent so irrespectve of what the Justice Department chooses to do, I'm confident that this Supreme Court will find a way to rule on this order.

Posted by: HarryR | October 12, 2010 10:46 PM | Report abuse

Maybe a judge with an ounce of military expertise would have been reasonable.

Or a jury of military peers.

Seems the constitution has a few view points on this.

If the law were so discriminatory... so unconstitutional... did so much damage.... should it not have gone to criminal court?

then a military jury would be in order.

I wonder what 12 randomly selected soldiers would have to say.

Posted by: docwhocuts | October 12, 2010 7:17 PM
===============================

This case is a civil case, brought on by a lawsuit. That means there is no jury and there are no criminal proceedings. I'm constantly amazed by how little people know about their own government.

Posted by: damascuspride04 | October 12, 2010 10:49 PM | Report abuse

Separate bunks and showers on ships exist to provide an oasis of privacy and buffer against the inherent sexual tensions arising from sleeping or washing with men sexually attracted to women. It is a wise idea that eases tension for both sexes. An "openly gay" sailor (one who is clear he is sexually aroused by men, not women) bunked with straight males creates a double standard for privacy policies rooted in issues of such sexual tensions. Of course we can bunk gay men with the straight women and hope that none of the guys are secretly bi...?

Posted by: feslop | October 12, 2010 11:24 PM | Report abuse

It's not gays in the military that worries me, it's political correctness in the military.

Posted by: reston75 | October 12, 2010 11:24 PM | Report abuse

you are right damascuspride04, now, here is a a situation for you...Article 125 of the UCMJ SPECIFICALLY prohibits sodomy, and is a Court Martial offense, whats next, are we to change and rewrite the entire UCMJ when two members of the military are found in violation? This ruling has done nothing but open "Pandora's Box"!

Posted by: Frankie58 | October 12, 2010 11:30 PM | Report abuse

If Dems have the sense to pour pee from a boot their first act in the next session will be to eliminate the filibuster, to moot 'Pug obstructionism and restore the sanity of simple majority rule. Then, after the Dems regain the House in 2012 they will be able to make real progress.

Posted by: raschumacher | October 12, 2010 11:35 PM | Report abuse

The comment "we are discharging all these highly qualified personnel" and upon which part of the logic behind repeal of DADT is based on is at least partially false. We reviewed thousands of discharges in the early 2000's where the former member was requesting a change on his DD-214 from "HOMOSEXUAL/HONORABLE" to a different reason. Inevitably, the member would promise to show up with his girlfriend to prove that he had been lying (to get out service? To walk away with a big renlinstment bonus? To get out of a deployment?)....Funny that this question isn't asked very often....FOIA request would tell the tale pretty fast.

Posted by: zoomie95 | October 12, 2010 11:51 PM | Report abuse

The comment "we are discharging all these highly qualified personnel" and upon which part of the logic behind repeal of DADT is based on is at least partially false. We reviewed thousands of discharges in the early 2000's where the former member was requesting a change on his DD-214 from "HOMOSEXUAL/HONORABLE" to a different reason. Inevitably, the member would promise to show up with his girlfriend to prove that he had been lying (to get out service? To walk away with a big renlinstment bonus? To get out of a deployment?)....Funny that this question isn't asked very often....FOIA request would tell the tale pretty fast.

Posted by: zoomie95 | October 12, 2010 11:51 PM | Report abuse

The 'Don't Ask, Don't Tell' policy is unconstitutional because it violates the first ammendment of the Bill of Rights. Any opinion to the contrary is an unconstitutional opinion and does not even merit reading. There really is no longer any need for discussion.

I thank the CA judiciary for upholding the laws of this country.

Posted by: nyrunner101 | October 13, 2010 12:54 AM | Report abuse

My God, Milbank... It's not about "fairness" or "political correctness", it's about being able to field a well-trained, motivated military capable of carrying out their missions.

This decision should be left to the experts, not some cheezy politician or politically appointed egghead judge who has no idea what she's tampering with.

Posted by: r_loveland | October 13, 2010 1:01 AM | Report abuse

Lots of talk about what's Constitutional and what's not. What does the Constitution say, specifically? Article 1, Section 8, covering the powers of the Legislative Branch: "To make Rules for the Government and Regulation of the land and naval Forces"

Note that it doesn't say "except when a judge disagrees" and that most of the judge's ruling covered how she disagrees with the policy and not about where, specifically, the law passed by Congress violates a power specifically given...to Congress.

The law may be ineffective and/or wrong, but the way to fix laws is to modify or repeal them....not to ignore them because a judge prefers a different policy. Where does it all stop? Does a different judge find that the Constitutional Right to Privacy (not actually written in the Constitution, so who's to say what it covers?) protects servicemembers from being forced to share bunkrooms and showers with openly gay colleagues and thus that judge prohibits Congress from repealing DADT? That's just as legitimate as the current ruling.

Judicial restraint is important...nobody should trust total power in any one group and there is no real check and balance on the judiciary if they start to just make things up based on their own personal preferences.

Posted by: louisinva | October 13, 2010 1:04 AM | Report abuse

Lots of talk about what's Constitutional and what's not. What does the Constitution say, specifically? Article 1, Section 8, covering the powers of the Legislative Branch: "To make Rules for the Government and Regulation of the land and naval Forces"

Note that it doesn't say "except when a judge disagrees" and that most of the judge's ruling covered how she disagrees with the policy and not about where, specifically, the law passed by Congress violates a power specifically given...to Congress.

The law may be ineffective and/or wrong, but the way to fix laws is to modify or repeal them....not to ignore them because a judge prefers a different policy. Where does it all stop? Does a different judge find that the Constitutional Right to Privacy (not actually written in the Constitution, so who's to say what it covers?) protects servicemembers from being forced to share bunkrooms and showers with openly gay colleagues and thus that judge prohibits Congress from repealing DADT? That's just as legitimate as the current ruling.

Judicial restraint is important...nobody should trust total power in any one group and there is no real check and balance on the judiciary if they start to just make things up based on their own personal preferences.

Posted by: louisinva | October 13, 2010 1:10 AM | Report abuse

Well, you've done the job of getting angry for us, so I guess the rest of us will just have to use reason. Ho hum, gets the job done.

(heh - just realized how that could be interpreted lol)

Posted by: treetopflyer | October 13, 2010 1:18 AM | Report abuse

lindalovejones,

No serving openly does not entail cross dressing it is more like you showing you are moron to the entire nation and there are no repercussions.

Posted by: BobSanderson | October 13, 2010 2:43 AM | Report abuse

If only the American Left were so thoughful on a host of Court Ordered legislation. Congress has been deferring to nine presidential appoitees to pass legislation for decades.

One of the cardinal principals of representative Democracy is open debate. That means, as the author suggests, congress should be discussing and legislating on issues such as the military gay ban (or abortion, or ...).

Unfortunately open debate means much legislation desired by the American Left will not get through, so the decisions are given to men (and a few women) who's job was intended, not to write the law, but to interpret it.

Either the law is what is written or it is what you want it to be. If the latter, we do not live in a democracy, but in a country where a small number of unelected lawyers legislate for us.

The principal of original intent is meant to place legislative responsibility where it belongs. In the legislature.

Posted by: dilettante | October 13, 2010 2:48 AM | Report abuse

The militant, homosexual, activist agenda really came to life after Obama was elected. America is under full, frontal attack by the gay ACLU and all it's enablers. Same with outlaw "immigrants" and all their sympathizers. These anti-democratic, pressure groups do not give a hoot how the American majority feels about anything. They will ram their pet cuases through any way they can, fair or foul.

But, they forget one thing. Voters can punish them severely come election day. Our free elections will save America from the bedlam those special interest fringes seem to want for America.

Vote the bums out! Get America back on track.

Posted by: battleground51 | October 13, 2010 6:43 AM | Report abuse

Amazing one judge in California can toss out a U.S. military policy that applies not just in this country but all over the world. What power those judges have. After this I don't want to ever hear liberal whining about the activist Roberts Supreme Court. I wonder what other civilian laws they will force on the military: American with Disabilities Act (the military won't take you if you're disabled in any way), various gender discrimination laws (the military doesn't allow women to serve in combat roles), OSHA regulations (military personell's workplace environment would make a OSHA inspector cringe), etc. In the military your supervisor yells and belittles you constantly, they make you wear a uniform, make your bed neatly, get up early and go to bed early. They also make you fight and kill. All stuff that's not required and in some cases would be against the law in the civilian world. Once a activist judge tosses out one military rule (no matter if it's umpopular with some) they could toss any of them out. On the plus side, as someone else in here pointed out, the military can now save money on separate living quarters for men and women. I mean if your going to throw gays in with the straights what justification do you have with keeping men and women separate?

Posted by: RobT1 | October 13, 2010 8:04 AM | Report abuse

Our military used to be armed conflicts and protection of land and liberty.
Sadly, it has degenerated to whose panties/briefs do we wear today?
I know how self affected homophobian males walk.
I wonder how this is applied in the military that prides itself now on knowing the sexual agenda of all it's members.
How sick!

Posted by: tjmlrc | October 13, 2010 8:05 AM | Report abuse

Hey, battleground51 . . .

Most recent poll I saw, over 60 percent of the American people opposed DADT.

And, among us Gen X and Gen Y folks, the percentages are staggering: Almost 80 percent supported an end to DADT.

As regards "activist" courts, I'd recommend that my "strict constuctionist" friends review our Constitution. Courts are in it. The judicial is one of three branches. It's there to protect us from ourselves - from a raging majority (or a deeply entrenched minority) that might be inclined to pass unconstitutional laws like poll taxes or . . . a ban on gays and lesbians in the military. The courts, in short, are supposed to be activist when it comes to our Constitution, which happens to supersede any law any Congress or legislature or assembly might ever pass.

As a contextual sidebar, 100's of young teens every year commit suicide because they awaken to realize that they're gay, and that they live in a world where some folks still think it's just fine to hate and ridicule them for a fact of their neurobiology; for what amounts to one of the ways in which human beings happen to love one another. The fact that this sort of bold-faced bigotry is still accepted by any of us - in the form of homophobia or the racial bigotry, xenophobia and veiled classism that underlies an entire contemporary political "movement" - is an horrific footnote to a dark and lurid past that includes slavery, endemic lynchings, Jim Crow and the genocide of millions of Native Americans.

There is hope, though. And not just in the fact of this ruling. For, there is evidence that the cancer of bigotry goes deeper into remission with each passing generation. True, it's still fashionable in some circles to twist fear and hatred into the sort of "jokes" James Chaney, Andrew Goodman, and Michael Schwerner likely heard on the way to their slaughter at the hands of "activist" White Citizens Council members. But, overall, the evidence is that Americans simply don't tolerate any form of discrimination anymore: Witness the recent anti-Islamic furor, which culminated in an overwhelming majority of Americans sending the Newt Gingrich, religious bigot crowd packing.

And now this.

Thank God.

Slowly, regardless of a frothing-at-the-mouth, neocon minority, we are moving, inexorably, toward the "western civilization" Gandhi thought "would be a good idea."

Posted by: scottycamp | October 13, 2010 8:26 AM | Report abuse

To reinforce the point, DA/DT and its origin as an Executive Order is not at issue. The problem is that sodomy is against the law in the Armed Forces, as codified by the Congress in the Uniform Code of Military Justice (UCMJ):

"Punitive Articles of the UCMJ
Article 125—Sodomy
“(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy."

It's this law, not the DA/DT policy, that must be changed, and that can be done by only the Judicial or Legislative Branches. So Mr. Capehart has put his finger on the question: this decision must be made by one or the other.

Posted by: qtrfoil85 | October 12, 2010 6:11 PM | Report abuse

+++++++++++
This is the funniest response yet -- YOU BASICALLY are agreeing to kick ALL out of the military. Just what acts are defined as unnatural carnal copulation????

Your argument reminds me of those fake arguments against gay marriage saying that the purpose of marriage is procreation.

Well you haven't apparently ever had non-missionary sex. Don't forget that we live in a world where close to 60% of marriages fail, many of them due to extramarital affairs. Every service member should then be kicked out of the military.
Many men I know like oral sex. Every person practicing this should be kicked out of the military. Over 50% of NORMAL hetero couples have anal sex now.... KICK THEM ALL OUT.

That would leave us with an army full of people like yourself, who probably rode a desk as a supply sargent or pushed pens.

Posted by: racerdoc | October 13, 2010 8:57 AM | Report abuse

Having joined before DA/DT was implemented, then serving until 2002 after its implementation I can honestly say I saw no impact on how I did my job, or how I viewed my shipmates,Tailhook did more to change attitudes. Now having served and having deployed I can honestly say an openly gay male on a submarine would be problematic at best and likely to lead to violence at worst. Tight confined space long deployment and NO privacy would lead to serious issues in moral and behavior. This is an issue left to the military and to the congress to address not a judge. The decision is nothing at all like Brown vs BOE. Serving is not a right, and once in you lose many constitutional rights. The freedom of speech, freedom of assembly, right to privacy is limited. That a civilian district judge would rule it as she did does not supprise me. She obviously ignored precedent, and ruled based on 1st amendment rights. Which is rights a serviceperson loses immediately upon joining. As has been pointed out this is a legalistic nightmare presenting commanders with the difficult task of courts-marshalling otherwise outstanding personal sole based on UCMJ violations. Gay servicemembers will recieve dishonorable discharges not honorable honorable. A dishonorable discharge follows you for life preventing a person from pursuing many career fields, and any government job. The UCMJ violation is the same as a civilian felony charge. How does this advance the rights of gays or provide any protections?

On a side note it would require either the elimination of seperate berthing or creation of individual berthing based on sexual preferance and sex. Shared berthing would never be allowed of course cant have those neandertals around the poor innocent ladies. (joke if you have any humor left)

Posted by: opspwcjc | October 13, 2010 9:02 AM | Report abuse

What do you want? If the court rules the law is dead. If it is appealed and overturned, then Obama selected the wrong judges? Congress never does the morally correct thing, because it has no idea what is moral. If the Supreme Court attempts to overturn the lower courts decision, it will be time to bring charges against the right wing Jurists whose standing is borderline criminal at best. The Pentagon can still act to change its code, and that is most likely. But don't blame Harry Reid who faces the worst confederation of reactionary Senatorial amateurs in history who call themselves Conservative when they are bigots and racists and homophobes to a man.

Posted by: gronamox1 | October 13, 2010 9:42 AM | Report abuse

Slowly, regardless of a frothing-at-the-mouth, neocon minority, we are moving, inexorably, toward the "western civilization" Gandhi thought "would be a good idea."

Posted by: scottycamp |

##########################################
I read your burbling about everyone else's bigotry but your own. Strange that you who perches so, on the edge of your seat waiting to pounce anyone who might say anything negative about your heterophobia, strange that you feel no remorse at your bigotted, narrow minded statements. Probably haven't come as far as you would like to think.

Posted by: tjmlrc | October 13, 2010 10:17 AM | Report abuse

This is a big change and you don't just jump into it. This isn't just about right or wrong, it's about how the military will deal with the sexual realities that will happen after a change is made. As much as liberals don't like it the country is still religious and their being forced to choose between what a liberal says and what God says. It will alter things rather dramatically whether anyone wants to acknowledge it or not, just look at the problems integrating women into the service. There will be repercussions to a change and the military has to be prepared to deal with it properly and not be shooting from the hip on the issues involved.

Posted by: Jack83 | October 13, 2010 10:19 AM | Report abuse

Gays have always served in the military. They just could not bring out their pomp pomps.

Posted by: Robert86 | October 13, 2010 10:34 AM | Report abuse

DA/DT was not a piece of Congressional legislation to begin with. It wasn't Congress' job to tackle this issue. It was originated within the Executive Branch under President Clinton as a compromise and given to DoD to carry out. As much as it was not Congress's task to "overturn" this policy, it was even less so for a judicial activist to stick the judiciary's nose in business where it doesn't belong.
Mr. Capehart needs to recognize the military is not part of society. What sets it apart from society is what is expected of it. The military is not a tinker toy project to be "adjusted" to adapt to societal "norms." Mr. Capehart, nobody cares about your "hate" concerning this subject. Direct your hate to deficits this country cannot in the long run sustain.

Posted by: pielusztcontractor | October 13, 2010 10:46 AM | Report abuse

I read your burbling about everyone else's bigotry but your own. Strange that you who perches so, on the edge of your seat waiting to pounce anyone who might say anything negative about your heterophobia, strange that you feel no remorse at your bigotted, narrow minded statements. Probably haven't come as far as you would like to think.

Posted by: tjmlrc

##############################

Sorry if this bums you out, but it would be difficult to be straight AND suffer from "heterophobia." Interesting that you assume that anyone that believes in the equal protection clause of our Constitution must be in a minority group with which you're uncomfortable.

Believing in equal rights doesn't mean that I favor robbing you of yours. You've just confused being able to judge and exclude others from the same opportunities you've always enjoyed with a right. It's not. It's discrimination.

And it's over now. Sorry. Your time has passed. Your position is now, officially, irrelevant - though, fascinating in the same way that a dinosaur skeleton is fascinating.

God bless America! With every generation, we transcend ourselves yet again. We the people are truly great. Even the most vocal group of fear-mongering bigots cannot sway us from what we know to be the right path.

Posted by: scottycamp | October 13, 2010 11:02 AM | Report abuse

Gee, Mr. Capehart, do I get to vote on your rights too? I'm pretty angry that I can't ...

Posted by: SubRosa2 | October 13, 2010 11:10 AM | Report abuse

It's About Time. Other countries have allowed GAYS in their military for years. DADT has just been a form of discrimination which I am against in any form. They have fought and died in our wars and should be treated as equals.(period)

Posted by: livenpeace | October 13, 2010 2:26 PM | Report abuse

DADT is not an executive order if that where the case the president could overturn it with a stroke of his pen. It was legislation attached to a defense authorization bill. The congress must overturn it then the president would sign it or we need the courts to strike it down.

Posted by: charlesvilagboy | October 13, 2010 8:59 PM | Report abuse

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