Court rules against "Don't Ask, Don't Tell"

[Lost Soal]

Court's ruling stands on 'don't ask' doubts

Bob Egelko, Chronicle Staff Writer

Friday, December 5, 2008

(12-04) 17:47 PST SAN FRANCISCO -- A federal appeals court refused Thursday to reconsider a ruling that raised doubts about the constitutionality of the "don't ask, don't tell" policy for gays in the military, a decision that could give President-elect Barack Obama a chance to act quickly on his promise to repeal the policy.

The Ninth U.S. Circuit Court of Appeals in San Francisco denied the Air Force's request for a rehearing of a May 21 decision reviving a suit by a female officer in Washington state who was discharged because she had a relationship with another woman.

The three-judge panel in that decision said the U.S. Supreme Court's 2003 ruling overturning state laws against gay sex established a new level of constitutional protection for gays and lesbians. Under that standard, the appeals court said, the military can't automatically discharge all openly gay soldiers, but must prove in each case that dismissal would promote troop readiness or unit cohesion.

Five conservative judges dissented from Thursday's decision not to rehear the case before an 11-judge panel. One, Judge Diarmuid O'Scannlain, wrote that the Supreme Court ruling affected only laws against private conduct, "did not announce a new fundamental right" for gays and had nothing to do with the military.

Fourteen votes on the 27-judge court are required for a rehearing. The court did not provide the vote total in rejecting the Air Force's request.

The Air Force has 90 days to appeal to the Supreme Court or allow the ruling to become binding on federal courts in the Ninth Circuit, which includes California and eight other states. Even if the Bush administration appeals before leaving office, Obama could withdraw the appeal.

"Don't ask, don't tell," approved by Congress and President Bill Clinton in 1993, replaced a ban on gays in the military. It bars the armed services from asking members about their sexual orientation but requires the military to discharge those who acknowledge being gay or who engage in homosexual activity.

During the presidential campaign, Obama said gays and lesbians should be allowed to serve openly in the military.

In an April 2008 interview with the Advocate, a gay publication, Obama said there was "increasing recognition within the armed forces that this (policy) is a counterproductive strategy."

He added that the nation is spending "large sums of money to kick highly qualified gays or lesbians out of our military, some of whom possess specialties like Arab-language capabilities that we desperately need."

Obama would need congressional action to repeal the policy. But he could move in that direction on his own by deciding not to appeal the Ninth Circuit ruling, which could encourage challenges to "don't ask, don't tell" elsewhere. Other circuits have upheld the policy, but only one, the First Circuit in Boston, has done so since the 2003 Supreme Court ruling.

"It seems to me that Obama would want to have Congress on board, but ... the timing may not be ideal," said Carl Tobias, a University of Richmond law professor. Allowing the Ninth Circuit ruling to stand, he said, would be a cautious step toward repeal.

Brooke Anderson, a spokeswoman for Obama's transition team, declined to comment. Justice Department spokesman Charles Miller said the department was reviewing the ruling.

James Lobsenz, a lawyer for the discharged officer in the case, said he wouldn't be surprised if the Obama administration asks for an extension of the 90-day deadline to give Congress time to change the law.

Lobsenz's client, Maj. Margaret Witt of Spokane, a decorated flight nurse, was suspended without pay in 2004 and discharged in 2007 - two years short of the 20 years she needed for retirement benefits - after the Air Force learned of her longtime relationship with a civilian woman.

In its May 21 ruling, the appeals court said the Supreme Court's 2003 decision on gay sex meant that a court can no longer accept the government's claim that all openly gay service members weaken the armed forces.

Although the ruling left "don't ask, don't tell" in place, Lobsenz said it would allow opponents to "unmask the lie" behind the policy.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 2 of the San Francisco Chronicle

Come on the US. Do something right for a change
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[CmdrWilkens]

given that several folks in Congress are already signing up for the legislation to repeat DADT I think the lawyer is absolutely correct. Obama will ask for a delay to that Congress can act to make this universal, then withdraw the appeal and have the ruling stand while the new legislation vacates any action against other members of the Armed Forces.

[ray245]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

[Alyrium Denryle]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

Just because the military doesn't ask, doesn't mean they don't try to find out... In other words, they do an inquisition thing.

[Kitsune]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

There are some military people and / or politicians who feel threatened by soldiers being openly gay. Before this, they were likely threatened by women in uniform and blacks in non segregated units. It has to do with religion and prejudice.

Much of the same reasons why creationists keep having to be fought over and over again. Periodically, there have also been government leaders who think that Wiccans should not be allowed in the Military either.

[ray245]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

Just because the military doesn't ask, doesn't mean they don't try to find out... In other words, they do an inquisition thing.

Oh...does this mean those homosexual personal cannot marry for instance? Oh well, no wonder I lost a debate round when I tried to attack the don't ask, don't tell policy, when the other side said that those policy is to protect homosexuals.

Although trying to argue in favour of a homosexual unit in the military is a hard thing to do.

[Base Delta Zero]

Although trying to argue in favour of a homosexual unit in the military is a hard thing to do.

Umm... not a homosexual unit. Homosexuals in the military at all, which for the record, really does not matter.

Oh...does this mean those homosexual personal cannot marry for instance?

Seriously? Have you been living under a rock or something?

[ray245]

Umm... not a homosexual unit. Homosexuals in the military at all, which for the record, really does not matter.

You think I have a choice in regards to that motion? I'm in a formal debate, where you don't get to choose your personal stance. Debating for that stance in a debating club and debating competition does not mean I support that stance you know.

Seriously? Have you been living under a rock or something?

Given that I lived in Singapore, where homosexuality issues has never really been tackled by the public, I am ignorant about these kind of stuff. And I think I need to rephrase my sentence if you are misinterpreting it.

What I meant was, if the don't ask don't tell policy is in place, doesn't that means homosexual personals cannot declare themselves as married? If they do declare themselves as married to another homosexual partner for instance, doesn't that mean they violating that policy and have to be discharged?

[Alyrium Denryle]

What I meant was, if the don't ask don't tell policy is in place, doesn't that means homosexual personals cannot declare themselves as married? If they do declare themselves as married to another homosexual partner for instance, doesn't that mean they violating that policy and have to be discharged?

Yes

[Coyote]

Ray, they cannot even declare themselves as gay, much less married.

What it means is that if a person in a military unit is suspected of being gay, no one has the authority to ask them about it. However, if they just happen to stumble across evidence of it, then they can be kicked out of the military.

On the other hand, there are also people who decide they don't like military life and tell people they're gay so they can get out; whether they actually are gay or not may or may not be the truth.

[Cecelia5578]

On the other hand, there are also people who decide they don't like military life and tell people they're gay so they can get out; whether they actually are gay or not may or may not be the truth.

I was wondering how long it'd take for someone to bring this up. Every single DADT thread in the history of SDN has to have someone mentioning this.

For the record, one of the reasons I came out as transgendered to the Army was exactly that-I needed to transition, and transitioning openly means getting discharged so I could do something as simple as grow my hair out (as well as no longer hide the fact that I was on hormones, for example, and up my dosage for more drastic effects).

Ideally, perhaps not what I would do, but necessary given the circumstances. And its sorta moot, as gender identity isn't included under DADT, and integration of transsexuals is a whole other issue entirely.

[Dargos]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

Just because the military doesn't ask, doesn't mean they don't try to find out... In other words, they do an inquisition thing.

Since Iam a qualified EO rep/SVA I'll try to answer this question.

How Do Investigations Proceed?

When the commander has credible evidence of a soldier committing homosexual acts, the commander must consult with their trial counsel prior to initiating any investigation. Prior to advising the commander to initiate an investigation into alleged homosexual conduct, the Trial Counsel will involve the installation level Staff Judge Advocate. Proper coordination and thorough documentation will be necessary to proceed when administrative separation is required.

What Is Not Credible Evidence?

Rumors that a soldier is homosexual

Others opinions that a soldier is homosexual

Going to a homosexual bar, reading homosexual publications,

Associating with known homosexuals or marching in homosexual rights rally in civilian clothes

Reporting threats or accusations of being homosexual


What Is Credible Evidence?

A statement by a reliable person that the soldier has engaged in a homosexual act, heard the soldier state that he or she was homosexual or that the soldier had married or attempted to marry a member of the same sex

A statement by a reliable person that they had observed or discovered a soldier saying or putting in writing a statement acknowledging a homosexual act or the intent to engage in a homosexual act

What Is Considered Grounds for Investigation?

Commanders can only begin an investigation or fact-finding inquiry if credible evidence of possible homosexual conduct exists. This means that before an investigation begins, a commander must have a reasonable belief that a soldier has:

engaged in a homosexual act;

stated that he or she is a homosexual or otherwise indicate a propensity to engage in homosexual conduct; or

married or attempted to marry a person of the same sex

That means I can be seen comeing out of a gay club on the way to going to a gay rights rally(while off duty in civilian clothes (going to any protest/rally while in military uniform is generaly frowned appon/against regulations) During which the 1SG found mountains of "Play Girl" mags laying around my barracks room and the army can't "legaly" do jack shit. If I am a victim of harrasment because of my actions, the Commander is bound by regulations to protect me and to processicute the harrasers.
However, if I was witnessed by others having homosexual physical contact or I openly declare to the world that I was gay I would be throughly screwed.

As you can also see, the Commander is the be all end all. The Alpha and Omega. He/She has the final say so on what is credible evidence and what is not. The commader can (and I have seen this happen) turn a blind eye to all "evidence" prior to deployment, during deployment and keep a soldier in. Then turn around kick a good soldier out as soon as the deployment has been completed due to "credible evidence"

In most cases, when a soldier freely admits to being a homosexual, investigations are not needed in order for a separation to occur. An admission by a soldier that he or she is a homosexual creates the rebuttable presumption that the soldier has an intent to engage in homosexual acts.

The "Tons of Money" spent on seperating homosexual soldier is money wasted on throwing out fully trained and qualified soldiers and court costs when the soldier fights against the discharge.

I will be glad when DADT is taken off the books. Too many good soldiers have been shafted already

[EarthScorpion]

Yes, it's about time that bloody stupid rule was gotten rid of. I'd honestly suspect that a lot of the fans of DADT believe that gay servicepeople will, if they're allowed to be open about it, transmit "teh ghey" to good Americans. Certainly, it would have to be gone by the time that (hopefully) there are widespread permitted civil partnerships, as it would be practically the same as only allowing single straight individuals in.

I really hope Obama comes through.

[General Zod]

A statement by a reliable person that the soldier has engaged in a homosexual act, heard the soldier state that he or she was homosexual or that the soldier had married or attempted to marry a member of the same sex

A statement by a reliable person that they had observed or discovered a soldier saying or putting in writing a statement acknowledging a homosexual act or the intent to engage in a homosexual act

Define "reliable person".

[Samuel]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

Just because the military doesn't ask, doesn't mean they don't try to find out... In other words, they do an inquisition thing.

Oh...does this mean those homosexual personal cannot marry for instance? Oh well, no wonder I lost a debate round when I tried to attack the don't ask, don't tell policy, when the other side said that those policy is to protect homosexuals.

Although trying to argue in favour of a homosexual unit in the military is a hard thing to do.

Gays in the US can't marry except in a few states (out of 50). And the marriages are not recognized on the national level. And they face a good amount of discrimination.

As for homosexual military units...

Can someone say Sacred Band?
http://www.fordham.edu/halsall/pwh/sacredband.html
http://en.wikipedia.org/wiki/Sacred_Band_of_Thebes

They were the elite of the Thebean army.

A statement by a reliable person that the soldier has engaged in a homosexual act, heard the soldier state that he or she was homosexual or that the soldier had married or attempted to marry a member of the same sex

A statement by a reliable person that they had observed or discovered a soldier saying or putting in writing a statement acknowledging a homosexual act or the intent to engage in a homosexual act

Define "reliable person".

It has a similar definition as "True Christian"- it means whatever you want it to mean within an extremely wide latitude.

Anyone get the urge to download gay porn and post it all over a military base?

[Lonestar]

I was wondering how long it'd take for someone to bring this up. Every single DADT thread in the history of SDN has to have someone mentioning this.

For the record, one of the reasons I came out as transgendered to the Army was exactly that-I needed to transition, and transitioning openly means getting discharged so I could do something as simple as grow my hair out (as well as no longer hide the fact that I was on hormones, for example, and up my dosage for more drastic effects).

Ideally, perhaps not what I would do, but necessary given the circumstances. And its sorta moot, as gender identity isn't included under DADT, and integration of transsexuals is a whole other issue entirely.

I...I...Goddamnit, I've been through MEPS, you've been through MEPS, all God's Children have been through MEPS, so why did you join the service if you didn't think you could persevere under DADT?

Personally, I'm against DADT just for that very reason: To prevent shitbirds from using it to bounce.

(which is to say, ban it completely and allow folks to serve openly)

[The Duchess of Zeon]

I was wondering how long it'd take for someone to bring this up. Every single DADT thread in the history of SDN has to have someone mentioning this.

For the record, one of the reasons I came out as transgendered to the Army was exactly that-I needed to transition, and transitioning openly means getting discharged so I could do something as simple as grow my hair out (as well as no longer hide the fact that I was on hormones, for example, and up my dosage for more drastic effects).

Ideally, perhaps not what I would do, but necessary given the circumstances. And its sorta moot, as gender identity isn't included under DADT, and integration of transsexuals is a whole other issue entirely.

I...I...Goddamnit, I've been through MEPS, you've been through MEPS, all God's Children have been through MEPS, so why did you join the service if you didn't think you could persevere under DADT?

Personally, I'm against DADT just for that very reason: To prevent shitbirds from using it to bounce.

(which is to say, ban it completely and allow folks to serve openly)

Because at the time she was massively in denial and a fanatical conservative and devout Orthodox Christian. I knew her before she transitioned, and at the time that she went in I thought it was absolutely perfect for her and never once suspected she was trans, sort of like how nobody thought Haggart loved the cock before he was caught with a gay hooker. When I found out, I was seriously laughing quite hard.

Cut her some slack, Lonestar (don't take that as criticism, your response was pretty cool)--severely, severely in denial gays are the most likely to join the military regardless of orientation because it's their last ditch gamble to prove their manhood. Same is true for transwomen.

[Broomstick]

Ok, I never really understood the exact nature of the 'Don't ask, Don't tell' policy. How does this policy result in spending tons of money discharging so many homosexual personal if no one knows about their sexual peferences?

It's not just the money spent during the discharge process - some of the people dismissed received some very expensive training. If you have to replace them sooner than expected then you have to pay to train the replacement.

[Lonestar]

Because at the time she was massively in denial and a fanatical conservative and devout Orthodox Christian. I knew her before she transitioned, and at the time that she went in I thought it was absolutely perfect for her and never once suspected she was trans, sort of like how nobody thought Haggart loved the cock before he was caught with a gay hooker. When I found out, I was seriously laughing quite hard.

Cut her some slack, Lonestar (don't take that as criticism, your response was pretty cool)--severely, severely in denial gays are the most likely to join the military regardless of orientation because it's their last ditch gamble to prove their manhood. Same is true for transwomen.

It's statements like that that make me equate my perspective on the whole phenomena(as I search for an all-encompassing word) with me being chained in a cave somewhere misinterpreting shadows on a wall. I may occasionally get it right, but often times don't(My whole knowledge base being limited to a handful of coworkers).

That said, if Cecelia had posted "That reminds me of the time I got knocked up in order to get out of deployment" I would have been just as pissed and upset.

[Coyote]

On the other hand, there are also people who decide they don't like military life and tell people they're gay so they can get out; whether they actually are gay or not may or may not be the truth.

I was wondering how long it'd take for someone to bring this up. Every single DADT thread in the history of SDN has to have someone mentioning this.

There is a long-standing perception that if you don't like being in the military, you can "play gay" and get booted. I don't know if it is true, no one I know has ever tried it.

I have a feeling that DADT is used as a "guardian at the gate" for a lot of issues the military doesn't want to deal with-- transgenderism being one, but women in combat being another big one that they are too squeamish to confront. In theory, if you weren't in combat arms, there really should not have been any reason to have to get out (beyond squeamishness on the part of the command). If it's a job a man can do, and if it's a job a woman can do, then changing from man to woman should be a non-issue... except of course that some people are wierded out by it, and that's a prejudice that has to be dealt with.

[The Duchess of Zeon]

It's statements like that that make me equate my perspective on the whole phenomena(as I search for an all-encompassing word) with me being chained in a cave somewhere misinterpreting shadows on a wall. I may occasionally get it right, but often times don't(My whole knowledge base being limited to a handful of coworkers).

That said, if Cecelia had posted "That reminds me of the time I got knocked up in order to get out of deployment" I would have been just as pissed and upset.

As it so happens, though, she wasn't even discharged under DADT; she would still have been discharged if it wasn't ever there. She was discharged as medically unfit for further service, as transsexualism is considered a medical mental condition which makes you unfit for further service in the Army, and she was discharged per medical protocols rather than for violating DADT. She specifically told me that she chose to do it that way because she didn't want to just be quickly DADT'd, she went through the system to have it done correctly even though I suspect most officers would happily kick someone who wanted to transition out under DADT since they'd see it as no different than being gay.

Anyway, everyone's different in how they transition. I'd had myself mostly figured out by the age of 12 or so but thought I could change my mind through sheer willpower (which relates to my philosophy on the board when I originally started posting)... Which utterly failed, so I woke up, realized it was foolish, and proceeded to transition. Though for the most part I've been extremely effeminate for my entire life and never tried to alter that; straight through the age of seven or so I was indistinguishable from a normal girl pretty much, and only later on because my parents made me cut my hair after that age, until puberty anyway.

[Cecelia5578]

On the other hand, there are also people who decide they don't like military life and tell people they're gay so they can get out; whether they actually are gay or not may or may not be the truth.

I was wondering how long it'd take for someone to bring this up. Every single DADT thread in the history of SDN has to have someone mentioning this.

There is a long-standing perception that if you don't like being in the military, you can "play gay" and get booted. I don't know if it is true, no one I know has ever tried it.

I have a feeling that DADT is used as a "guardian at the gate" for a lot of issues the military doesn't want to deal with-- transgenderism being one, but women in combat being another big one that they are too squeamish to confront. In theory, if you weren't in combat arms, there really should not have been any reason to have to get out (beyond squeamishness on the part of the command). If it's a job a man can do, and if it's a job a woman can do, then changing from man to woman should be a non-issue... except of course that some people are wierded out by it, and that's a prejudice that has to be dealt with.

I spent 4 years in the USAR, most certainly not in a combat arms MOS or unit.

The way things stand, I see homosexuals being tolerated openly much more than transsexuls will be, mostly because so many people will freak out at being in showers/locker rooms/etc. with people whose genitals don't match their presentations. The solution of course is to make being post-op a condition for being a transperson in the military. Goodness knows many post op trans people have tried to get medial waivers-my lawyer with the Servicemembers Legal Defense Network told me she didn't know of a successful case.

Transitioning, especially from male to female, is not something that the military I think could easily handle. Male soldiers growing their hair out, for example, would pose a problem, as well as the rather obvious breast growth that comes from hormone therapy. Transitioning in the real world is tough enough, the unfortunate reality is that its probably best to allow transpeople in only after they are post-op. Which, unfortunately, probably makes it all but impossible for transmen, as FTM bottom surgery is so much more expensive and not quite as good as the MTF equivelant.

[Tsyroc]

There is a long-standing perception that if you don't like being in the military, you can "play gay" and get booted. I don't know if it is true, no one I know has ever tried it.

My experience is that they don't just take the person's word for it.

The one guy I knew who requested to be discharged because he was gay was investigated and after NIS spoke to some old boyfriends he was discharged. This was before DADT though.

[Sarevok]

Ray, they cannot even declare themselves as gay, much less married.

What it means is that if a person in a military unit is suspected of being gay, no one has the authority to ask them about it. However, if they just happen to stumble across evidence of it, then they can be kicked out of the military.

On the other hand, there are also people who decide they don't like military life and tell people they're gay so they can get out; whether they actually are gay or not may or may not be the truth.

What if some US military personnel claims to be gay just to avoid getting shot at in Iraq / Afganistan / wherever ? Is not that a huge loophole at a time when US needs more people in uniform then ever ?

[Lonestar]

What if some US military personnel claims to be gay just to avoid getting shot at in Iraq / Afganistan / wherever ? Is not that a huge loophole at a time when US needs more people in uniform then ever ?

It happens(I've seen it) but they(TPTB) don't just take the serviceman's word for it, even if it's an Open Secret. Pshrinks are involved.

In addition, I know of at least one instance where an intepreter got out though DADT, and by the time he got to his home of Record(usually Parents' house) there was a recall order waiting for him. To the Desert.