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Ninth Circuit denies en banc review of DADT case:

Last May a panel of the Ninth Circuit called into question the constitutionality of "Don't Ask, Don't Tell," the federal law under which the military discharges personnel known to be gay. The panel did not actually hold DADT unconstitutional but announced a heightened scrutiny standard applicable to the policy based on the Supreme Court's decision in Lawrence v. Texas. It then remanded the case to the district court for further fact-finding to determine whether the policy could survive the heightened scrutiny. Orin, Eugene, and I offered some thoughts about the decision in a series of posts at the time.

Now the Ninth Circuit has refused to hear the case en banc, with six judges dissenting. In his dissent, Judge O'Scannlain emphasized the narrow context and reach of Lawrence. Judge Kleinfeld, in a separate dissent, emphasized the traditional deference due to Congress and the President in military matters. Finally, Judge Kozinski pronounced himself agnostic on the merits but believed the case was important enough that it should be heard by the full court.

The question now, as back in May, is what happens next. At this point, the case would go back to the district court for factual development and final decision on the merits. Alternatively, the Supreme Court could accept review of the case if the Bush and/or Obama administration decide to press it.

Left to its own devices, I doubt the Obama administration would pursue the case at this point, but would prefer to preserve its options -- political and legal -- for the future. Obama himself opposes DADT and might like to see it held unconstitutional, but I'm guessing he'd rather not have the issue take center-stage via a showdown in the Supreme Court in the immediate future. I also doubt the current court would hold DADT unconstitutional, and a ruling in favor of it might actually politically entrench it for a few more years. Others have also expressed doubts about the Obama Justice Department pushing the case to the Supreme Court.

On the other hand, if the Bush administration decided to file a cert petition the Obama DOJ would be put in the difficult position of having either to defend the constitutionality of a policy the President opposes on the merits or withdrawing the petition in the early weeks of his presidency. The latter course would also present public-relations problems reminiscent of the early days of the Clinton administration. But withdrawing a cert petition might not be as politically risky as it seems because the Ninth Circuit hasn't actually held that DADT is unconstitutional.

Indeed, some factual development in the district court showing the weaknesses, inconsistencies, and harm caused by the policy might be helpful in laying the groundwork for a legislative repeal of DADT in Congress before the Supreme Court ever has a chance to hear the case -- years down the road. Additionally, Obama will need time to establish his bona fides as a tough Commander-in-Chief -- for example, by bombing a country or two, or by supporting the limited use of "enhanced interrogation" techniques or broader domestic surveillance, or by delaying his 16-month timetable for Iraq withdrawal -- before he can push legislatively for what will be a controversial change. He will need the acquiescence if not the support of the Joint Chiefs of Staff for such a change and he won't get that until he establishes some credibility with them. The Ninth Circuit's decision to kick the can back to the district court, rather than address it with the weight of the full court, may buy some needed time.

OrinKerr:
Kozinski opinions sometimes rub me the wrong way, but I thought his dissent here was excellent.
12.5.2008 12:47pm
DG:
I think DADT is perfectly constitutional - the courts should not be deciding qualifications for military service. Lawyers have already insinuated themselves too deeply in military decision making, to our national detriment. They are the new political officer, the new High Priest.

That being said, DADT is deeply foolish and the vast majority of the military simply doesn't care. The military's top leadership still does, but thats mostly a generational thing. The people who would actually need to deal with these changes - the squad leaders, company commanders, division officers, and leading petty officers - are of a different generation than the brass. While openly serving homosexuals will introduce certain problems, it will also remove certain other problems like the possibility of blackmail and the ability of some to utilize DADT to effect a discharge during their obligated period of service. That latter issue is far more prevalent that almost anyone realizes - I never knew anyone to be legitimately discharged for DADT, but did know a couple obvious fakers.
12.5.2008 1:22pm
einhverfr (mail) (www):
DG: Since we don't live in a society where many benefits are tied to military service (compare to, say, Israel), I would generally agree with you on all points.

However, if the draft were re-instituted, would you think that exempting gays from the draft would be constitutional?
12.5.2008 1:36pm
MJG:
Orin,

Sort of off topic, but what circuit judges, in your view, tend to write the best opinions? (majority and otherwise) I wouldn't take you for one to fawn over the breezy essays of a posner or easterbrook.
12.5.2008 1:43pm
Randy R. (mail):
DG: "he military's top leadership still does, but thats mostly a generational thing."

And even that is changing. Many retired officers and top brass have come out against it.

My own gut feeling is that even many of the top people have realized it isn't working and makes no sense, but that they can't really be vocal about it so long as it's official policy. No criticism here for that, though, as I know it's not reallly the job of military officers to question Congress.
12.5.2008 1:48pm
Crunchy Frog:
einhverfr (please tell me that's a witty acronym for something): Once again, it needs to be explained that sexual orientation is not a protected class under the U.S. Constitution (as defined by SCOTUS, of course). Until such time as it is, legal challenges to DADT, DOMA, and other legislation on the Gay Rights Hit List will go absolutely nowhere.
12.5.2008 1:52pm
gattsuru (mail) (www):
I don't think DADT is a good policy (it seems like it only strengthens the concerns about blackmail and/or harassment over perceived sexuality, while still being offensive to those opposed to homosexuality).

That said, I'm not so sure about the unconstitutionality of it. I think it's a pretty clear violation of the right to freedom of speech, but as things go it's a small straw in a very large bail of hay that has been seen as constitutional.

That said, Kozinski makes a good argument for making a trial, even if it ends up as a show trial. This is a law, an important one, and that means it is rather relevant for the judicial branch to pay attention to in light of any changes in other similar cases.

As an aside, I'd expect Obama to be smart enough to leave DADT the statute alone. It's far, far easier to put out a rule -- executive order or through less official channels -- to simply have enforcement go to nil.
12.5.2008 1:58pm
Patrick216:
Obama himself opposes DADT and might like to see it held unconstitutional, but I'm guessing he'd rather not have the issue take center-stage via a showdown in the Supreme Court in the immediate future.

Here's a thought. Our Glorious Leader is the President, the Messiah reborn, and the Lightbringer all rolled into one. DADT is a DoD regulation. If He opposes DADT, rather than merely pining to have it held unconstitutional, why not kindly ask SECDEF to reverse the reg?
12.5.2008 2:01pm
Patrick216:
My smartassedness serves me right -- DADT is a statute, not a DoD reg. So our Glorious Leader, the Prince of Peace Himself, can ask Pelosi &Reid &the boys to repeal it.
12.5.2008 2:03pm
JNHeath (mail):
The 9th has ruled on DADT before in a Nat. Guard case.:
http://andy-holmes.com/dadt/index.htm

AG Lockyer simultaneously and contradictorily argued in _Silveira_ that the 2nd Am protected only state authority to designate militia despite federal interference, and in the state-level _Holmes_ case that Cal. lacked authority to designate militia in contravention of federal law.

The 9th's position then was that they would not second-guess federal military standards. If not, then what of their gun-case dicta that the 2nd Am allows the states to designate their militia despite federal interference? At what point would the 9th enforce the 2nd Am as a protection of state militia if they won't second-guess federal military policy?
12.5.2008 2:09pm
gattsuru (mail) (www):
That being said, DADT is deeply foolish and the vast majority of the military simply doesn't care. The military's top leadership still does, but thats mostly a generational thing. The people who would actually need to deal with these changes - the squad leaders, company commanders, division officers, and leading petty officers - are of a different generation than the brass.


I've encountered more than my share of relatively younger individuals who care (and care in a "ewwwwwwwwww" sort of reaction). A number don't, and another number do care but have been sufficiently trained to follow orders on the matter of social interactions with other troops, but the remaining portion is neither a distant minority nor of a different generation. Even at Hanscom AFB, MA, there were a good number of 22-year-olds squicked very heavily by it. Head to the Midwest and it's more common.

They're soldiers, and they're overwhelmingly good people at heart; the worst I'd expect from 99.9999% of situations is simply a bit of distrust or ill ease. But stuff that's trivial in an office building is not for people getting shot at or keeping a supersonic jet in one piece.

That doesn't make DADT a good idea, but "most people don't care" is far from a good or entirely truthful argument.
12.5.2008 2:10pm
Cornellian (mail):
Presumably if even a gender discriminatory draft passes constitutional muster, then DADT probably would as well.

But DADT is bad policy, the military knows it, and it will end, possibly before SSM is legal in California and certainly before SSM is legal in Alabama.
12.5.2008 2:12pm
Crust (mail):
Obama will need time to establish his bona fides as a tough Commander-in-Chief -- for example ... by delaying his 16-month timetable for Iraq withdrawal
That would be an unusual move, establishing toughness by flip flopping.
12.5.2008 2:12pm
cmr:
DG: "he military's top leadership still does, but thats mostly a generational thing."

And even that is changing. Many retired officers and top brass have come out against it.

My own gut feeling is that even many of the top people have realized it isn't working and makes no sense, but that they can't really be vocal about it so long as it's official policy. No criticism here for that, though, as I know it's not really the job of military officers to question Congress.


That's what you'd want them to think.


Anyway, I really don't see why DADT is a big issue. I mean, this should be something most people would do on their own. Not because they're ashamed, but...read a room. Why intentionally ostracize yourself if you know you're around a bunch of young dudes who may not be cool with it? That seems unnecessarily self-defeating in a setting where you're supposed to conform to the norm.
12.5.2008 2:16pm
DG:
{That doesn't make DADT a good idea, but "most people don't care" is far from a good or entirely truthful argument.}

I strongly disagree. Perhaps my military experience was simply different, but the comfort level is much higher now than in 1990, when I enlisted. There is the standard discomfort with homosexuality that is emblematic of all late adolescent males. But don't be confused - just because they call everyone a "fag" and refer to everything stupid as "gay", it doesn't mean they have problems with homosexuals. That sounds deeply weird, but there's a big difference between generalized grousing and not being able to get along with the guy next to you.

Assume that at least some of us commenting have done things (much) more stress-inducing than sitting in an office building during our military service. One of the best leaders I ever knew in the military was (I'm almost entirely sure) gay. Everyone suspected, no one cared, everyone was willing to follow his orders - enthusiastically, because he was extremely adept at his job and a really great deckplates leader.
12.5.2008 2:21pm
cmr:
Assume that at least some of us commenting have done things (much) more stress-inducing than sitting in an office building during our military service. One of the best leaders I ever knew in the military was (I'm almost entirely sure) gay. Everyone suspected, no one cared, everyone was willing to follow his orders - enthusiastically, because he was extremely adept at his job and a really great deckplates leader.



That's great and all, but generally speaking, picking out the better examples of how someone has overcome DADT doesn't make the case for why it should be repealed. Was he a good leader because he was (almost entirely surely) gay, or was it something else?
12.5.2008 2:28pm
Gopherstate (mail):
Having federal district courts develop a factual basis as to what behavior and activities by gay and/or allegedly gay servicemembers is "detrimental to unit cohesion and good order and discipline" may be one of the best methods to eventually having DADT overturned. What you would see is a trumpeting of gay stereotypes by the military or the military would have to parade out a bunch of homophobic servicemembers to explain why a gay soldier made them feel uncomfortable. This would do more than anything to expose that there really is no rational basis for the law.
12.5.2008 2:34pm
gattsuru (mail) (www):
Perhaps my military experience was simply different, but the comfort level is much higher now than in 1990, when I enlisted.


That's certainly true, but it's not what you or I said. Responses to Jewish folk were better in the 1920s as opposed to back when Shakespeare wrote Shylock into existence, but they were still far from great.

But don't be confused - just because they call everyone a "fag" and refer to everything stupid as "gay", it doesn't mean they have problems with homosexuals.


No, I'm referring to people who'd consider gay men a rather disgusting violation of the laws of nature, and had either shunned or at least made pariahs of individuals who had been 'outed'.
12.5.2008 2:38pm
gattsuru (mail) (www):
And, as to the potentially gay commander, how many of your compatriots took longer to believe he was a great commander than the average stereotypical one?
12.5.2008 2:49pm
Der Hahn (mail):
Don't ask, don't tell is the common term for the policy about homosexuality in the U.S. military mandated by federal law Pub.L. 103-160 (10 U.S.C. ยง 654). (from here)

Curious. Why do Obama and the Democrat majority in congress need to wait for a court ruling to reverse this policy?

If it is such a bad policy and having such a negative impact on our armed forces, they should be voting to remove it on Jan 21, 2009. If they don't, why not?
12.5.2008 3:20pm
einhverfr (mail) (www):
Crunchy Frog:

einhverfr (please tell me that's a witty acronym for something): Once again, it needs to be explained that sexual orientation is not a protected class under the U.S. Constitution (as defined by SCOTUS, of course). Until such time as it is, legal challenges to DADT, DOMA, and other legislation on the Gay Rights Hit List will go absolutely nowhere.


First as to the name, it is from the Old Norse meaning "The Determined One."

Secondly, even if homosexuality is not a protected class, it seems to my mind that there may be reasons not to allow such discrimination and these may cut to rational basis review considerations. For example, here you are exempting some individuals from the draft on a basis which is largely invisible and which objective tests cannot determine eligibility regarding. Furthermore, the process by which this is reviewed and verified could well end up being both arbitrary and capricious.

If there was a genetic marker for homosexuality, then maybe they could make that the test. Otherwise, you end up with someone makign a decision based on a "compelling interest" based on an arbitrary and capricious standard.
12.5.2008 3:39pm
Houston Lawyer:
"There is the standard discomfort with homosexuality that is emblematic of all late adolescent males. But don't be confused - just because they call everyone a "fag" and refer to everything stupid as "gay", it doesn't mean they have problems with homosexuals."

If DADT is repealed would the aforementioned conduct result in a soldier getting disciplined? I'm guessing that it would. So we go from a situation where an infitesimally small minority has their freedom of speech curtailed to a situation where a much larger group has its speech curtailed. So society gets a little less free.
12.5.2008 3:41pm
Steve:
If DADT is repealed would the aforementioned conduct result in a soldier getting disciplined? I'm guessing that it would.

That sounds like a very bad guess. Just because DADT is repealed, suddenly the military is going to waste its time disciplining soldiers who use "gay" to mean "stupid"? Some people really stretch to find a reason to support this policy.
12.5.2008 3:59pm
Grigor:
Some of us are pretty heavily squicked by evangelicals and would react with a great deal of hostility to being proselytized. I'm confident that there are effective ways to discipline unwanted proselytizing in the military while telling those of us who think "eeeeewwwwwwwww" about evangelicals to, um, suck it up and do our job and work with the others in the unit.
12.5.2008 4:13pm
Cornellian (mail):
First as to the name, einhverfr, it is from the Old Norse meaning "The Determined One."

Sadly, despite their determination, those Old Norse guys were never able to locate those missing vowels.
12.5.2008 4:20pm
ForWhatItsWorth:
Houston Lawyer: "...If DADT is repealed would the aforementioned conduct result in a soldier getting disciplined? I'm guessing that it would....."

Repealing DADT would, in effect, put it back the way it was. I COULD ASK (and investigate and find out), for example as a person doing investigations for clearances. If you lied and said you weren't, and I found out you are, you go to jail for lying in an official investigation. The DA part of DADT means what it says..... *I* cannot ask, for any reason whatsoever.

If, on the other hand, you said you were gay..... out the door you go..... with a BCD, at best. DADT prevents the asking and investigating UNLESS you "tell." Not someone else telling on you, but you yourself telling.

Repealing DADT isn't the answer. Replacing it with a law or regulation that states homosexuals are no different than any other soldier, sailor, airman or marine is the ONLY thing that will improve the lot of homosexuals in the military. They would have to follow the same rules...... anyone caught performing a sexual act while deployed on a ship, for example, will be hammered...... and I do mean hammered if they are caught. This applies now, to heterosexual activities in ships that carry both sexes.

Some of you may have been in when women were going to be permitted on ships. I was and I was in a senior leadership position. I was actually tasked with discussing the impending event with all the junior folks on a rather large ship. Letting them ask questions and trying to answer their concerns as best I could. Questions were all over the place, to include things like, "WHere are they going to live? Are their living spaces going to be better than mine just because they are women and need to ...... yadda, yadda, yadda." Lots of concern. Then a, thank god, black guy asked a question that opened the door, concerning work inequities and such...... and I answered with this:

"You know, there was a time when white guys were sitting where you are and asked the very same questions about living with black people because integration was on the way..... period.... no choice. They were going to do the same jobs as the white guys, they were going to live with, share duties with and do everything the same as you. Now.... I ask you, how did that turn out?"

I made it clear, in a non-threatening way, that this was the exact same thing..... unfounded fears and concerns. Yes, there are going to be some interesting growing pains since ships and other commands weren't originally designed for privacy or co-ed use. But, we were going to get there. There were challenges. In fact, the co--ed thing was much harder than dealing with interracial or the likely inclusion of sexual orientation into the picture.

The fear: "What if one of 'them' tries to approach me or I see them..... yuck?" The answer: "Even if 'they' had the inclination and were consenting, what happens when a sexual encounter occurs now between two heterosexuals?" Can you say BUSTED? Sure you can!

Kinda long..... but my point is that DADT doesn't need to be repealed, it needs to be replaced.
12.5.2008 4:20pm
einhverfr (mail) (www):
Cornellian: I know this is off-topic, but:

Sadly, despite their determination, those Old Norse guys were never able to locate those missing vowels.


ein- meaning "one" + hverf (meaning "determined") + nominative r ending. Hv is one consonantal sound. Rf is self-explanatory. -r is a semi-vowel anyway, so I am not sure it matters whether one goes with the Modern Icelandic -ur spelling or not. If you think about it, the e in "driver" is silent anyway, is it not?
12.5.2008 4:48pm
ForWhatItsWorth:
einhverfr,

It just struck me while looking at your explanation of the nordic name. Ein is pretty easy, given the familiarity of the germanic. But I wonder, do you know if the hverfr is the source of the english word, fervor? It seems a big time coincidence if it doesn't. It would seem to pronounce almost exactly the same, when I look at it.
12.5.2008 5:11pm
hazemyth:
"My point is that DADT doesn't need to be repealed, it needs to be replaced."

Could it be replaced, and the necessary new measures introduced via executive order?
12.5.2008 5:19pm
hazemyth:
Whoops, sorry. Should read:

Could it be repealed, and the necessary new measures introduced via executive order?
12.5.2008 5:20pm
ForWhatItsWorth:
hazemyth: "...Could it be repealed, and the necessary new measures introduced via executive order? ..."

Hmmmm. Well, I don't think so. The reason being that the issue with homosexual participation is based upon a law, not an executive order. I don't think an executive order is allowed to trump an existing law.

Another negative is that an executive order can be undone as easily as it was done. A new president can just "tear it up" and its gone.

Passing a law really is the way to go. I know that is alot harder to accomplish, but it is also just as difficult to undo. In fact, with something like this, it would be nearly impossible to undo, for all intents and purposes.

You know, the one thing I REALLY appreciate about VC is that many of you guys are lawyers and, as such, you understand that the military leaders don't decide these things. Yes, they certainly have major input into the process, but the contents of the UCMJ, for example, aren't their fault...... or anyone else in the military.

I bring that up because picketing a military base and yelling at military people, even the "brass," does no good.... they cannot fix it, all they can do is recommend. The US military, as you all certainly know, is subject to what the civilians in charge say, not the other way around :)
12.5.2008 5:37pm
Cornellian (mail):
It just struck me while looking at your explanation of the nordic name. Ein is pretty easy, given the familiarity of the germanic. But I wonder, do you know if the hverfr is the source of the english word, fervor?

Merriam-Webster says the word comes from Middle English "fervour" which in turn comes from the Latin "fervor" which suggests a non-Germanic origin.
12.5.2008 5:46pm
Randy R. (mail):
" Why intentionally ostracize yourself if you know you're around a bunch of young dudes who may not be cool with it? That seems unnecessarily self-defeating in a setting where you're supposed to conform to the norm."

Yeah, I know. I said the same thing to my black friends. they should just wear white pancake makeup so that the ones who are uncool with blacks would be more comfortable.

After all, protecting the comfort level of idiots is the highest priority of our military.
12.5.2008 5:48pm
ForWhatItsWorth:
hazemyth, I forgot to mention, as part of the overall discussion everyone is having here, that military people will follow their orders. I am not saying that gays coming out of the military closet is going to be easy or without bumps in the road. However, military people, especially now, are professionals in every sense of that word. If they are told it is going to happen and "you will" get with the program..... that is what happens.

Actually, and this is to all here, I wish it would happen RIGHT NOW! The reason is one that some of you may not have considered. The very thing so many of you "hate about Bush" is a real godsend, as it were..... the war! I know, heinous isn't it? Let me shplain......

There is nothing that proves the meddle of a warrior better than war. In other words..... there are certainly a fair number of gay guys and gals in Iraq and Afghanistan, RIGHT NOW, proving their worth to their fellow warriors. But nobody knows they are gay. So, what better time to change the law that right now?

If they were permitted to "come out of the closet" their compatriots would realize in about a microsecond that orientation doesn't matter..... a guy watching my six, in a very real way, is still watching my six.... my life depends on and has depended on that very same individual. NOTHING, and I mean nothing compares to the real "band of brothers." To this day, there is nothing that I wouldn't do for anyone with whom I shared the combat experience...... NOTHING! I wouldn't give a crap what his sexual orientation was..... Why would that matter? He saved and/or covered my ass! (Pardon the expletive, but it is the only word that really fits there).
12.5.2008 5:50pm
einhverfr (mail) (www):
ForWhatItsWorth:

Going to Zoega for more info (hadn't done this, just accepted the interpretation of the one who gave me that nickname)....

Hverf- in this case seems to come from the verb hverfa, so it seems to be a little stranger than I had thought. Hverfa seems to have a root meaning "to turn" or "to change" and it has a transitive and an intransitive form....

I.e. I could be the one who turns around, or the one who turns others around. In the context, I think it probably was intended to mean the latter.....
12.5.2008 5:50pm
Randy R. (mail):
Forwhatits worth: "I bring that up because picketing a military base and yelling at military people, even the "brass," does no good.... they cannot fix it, all they can do is recommend."

I tend to agree. However, I don't think it does a bit of good nonetheless. It can push the brass to realize that DADT is a PR disaster for the very people they are trying to recruit, and it reminds people -- especially gay people -- what the policy is in case they do sign up.

It also reminds people that thousands of perfectly good soldiers and other military people have been ejected from the military for no good reason, especially in critical areas such as languages.

Futhermore, it isn't exactly true that all they can do is recommend. The officers implementation of the policy widely varies throughout the military. Some pursue DADT with a vengeance, even to the point of violating the don't ask part. Others know that there are openly gay servicemen and women under their command, and they simply look the other way.

However, I still agree that protesting would probably not have much influence on the way any individual officer chooses to implement the policy.
12.5.2008 5:55pm
einhverfr (mail) (www):
Cornellian is correct about the Latin roots of fervor via French. Of course that does not preclude a shared Indo-European root, but I don't see reason to assert one at the moment.

The Indo-European root behind fervor is bhreue (final e being actually a schwa) according to Calvert Watkins (The American Heritage Dictionary of Indo-European Roots). The Oxford English Dictionary does not list any further etymologies. However this would make "fervor" cognate with "brew" and this would suggest a fundamentally different root than the Icelandic hverfa.
12.5.2008 5:58pm
Randy R. (mail):
"military people, especially now, are professionals in every sense of that word. If they are told it is going to happen and "you will" get with the program..... that is what happens. "

Bravo. You hit the nail on the head.

Several years ago, the Army Navy War College conducted a study of the militaries most similar to ours that allow gays to serve openly, including Canada, Australia, New Zealand, Israel and G. Britain. In all cases, there were officers who said that they would quit beforet the served alongside gays. So they braced themselves when they implemented the new policy. Britain allowed any military person the right to quit honorably, and a total of three did.

But the real conclusion was exactly the same as your -- the people acted as professionally as was expected, and the policy, with a few bumps (and perhaps, grinds), was smoothly implemented with no detriment to morale or fighting ability.
12.5.2008 6:00pm
ForWhatItsWorth:
Cornellian, thanks. Yeah, I could have looked it up, but the coincidence seemed glaring to me..... Still, it is an interesting one, isnt' it? At least from the standpoint of the meaning of the word and its pronunciation. I would have almost bet money it was the source.

Randy R: "....After all, protecting the comfort level of idiots is the highest priority of our military...."

Randy, I know this is a sensitive subject for you, but I think you are overreacting a little. The vast majority of military people aren't "idiots," they are professional warriors of the highest possible caliber. And no, I never cared about the comfort level of idiots in my midst.

However, we are talking a "sea change" in attitudes and culture for many of these folks. We get people from every walk of life in the United States. From people who grew up in rural locales in Alaska, to people who grew up in the paradise that is Hawaii, to folks from the most "sophisticated" cities in the country. You cannot assume their feelings about this subject any more than I can determine your race from what I have seen you write.

They will, I guarantee, follow the orders as given..... whenever that happens to be. Those that cannot handle it will leave when their time is up. That will likely be an amazingly small number. Like I said in my previous post, all of these people are fighting a war together at the moment and THAT means something to them, trust me.

On the other side of the coin (and said somewhat tongue in cheek), what he said has some merit depending on the circumstance, but not necessarily for the reasons he mentioned. Did I share the sexual exploits of me and my wife with my fellow warriors? Uhhhhh, not if I wanted to live when I got home. Keeping the "sex talk" to a minimum in the wrong company is a wise move...... That advice would apply no matter your orientation. :) :)
12.5.2008 6:04pm
ForWhatItsWorth:
Randy, I wrote the one above while you were apparently responding to my others..... I guess I needn't have bothered with the "idiots" comment you made because it is incredibly clear you already understood that...... THANKS for that!

I really appreciate your comments, too. I am one who is definitely heterosexual, just so you know where I am coming from. You probably knew that, but still..... :)

I will tell you straight up, I would NEVER turn down anyone who feels so strongly about serving their country, with the distinct possibility of losing their own lives in the process. That is wasteful of a valuable resource! That is how I felt about females serving in combat, although I had some very real reservations for other reasons (potential for heinous abuse as a POW), if they are aware of those and accept those risks to do a duty they feel the need to perform, then so be it!

I will say this, the finest Corpsman on the planet was a gay guy I knew. You probably know why I would say that he was the finest, so I won't go into detail. Suffice it to say, he saved my sorry ass. This guy kept me from being a paraplegic. Does anyone here or elsewhere think I give a s__t what his sexual preferences were or are? And nobody but nobody will hear his name...... not now, not ever.... in a form anyone would be able to identify. Lots of corpman have saved lots of folks from being paraplegics, so that doesn't and won't ever tell anyone who he is :) :)

Oh, and he gave injections and took blood in so perfect a manner, I never felt the slightest pain. He was with my team for a long time. I kept him with my team for a long time after, as well :)

But, now you know why I speak with the fervor I do about it. It is, likewise, a place where I have made recommendations to the people who can do something about it. I'll continue to do so until it changes or I go tango-uniform.... whichever comes first!
12.5.2008 6:24pm
Crunchy Frog:
FWIW:


Then a, thank god, black guy asked a question that opened the door, concerning work inequities and such...... and I answered with this:

"You know, there was a time when white guys were sitting where you are and asked the very same questions about living with black people because integration was on the way..... period.... no choice. They were going to do the same jobs as the white guys, they were going to live with, share duties with and do everything the same as you. Now.... I ask you, how did that turn out?"


One question - did your black guys have a history of getting pregnant on ship?

Didn't think so.
12.5.2008 6:48pm
ForWhatItsWorth:
Crunchy Frog: Indeed, that is something that happens now that didn't happen in the past. There are, however, strict rules against having sexual relations aboard ship..... even if you happen to be married to that person.

I am not sure you got why I was happy about the individual asking the question. The fact that the person in question, just a few years earlier (well a decade or two anyway) would have been the one having questions asked of the same variety was the point. There was no reason to believe a black person couldn't do their duty aboard ship or anywhere else for that matter. There was none with females either. THAT was the point. Groundless/baseless fears..... nothing more, nothing less.

With today's professional military, much easier to overcome, too. As Randy and I both said, there will be some bumps.... it won't be glass-smooth. But it will work because the folks will make it work. Then they will realize their concerns were baseless and there won't be anything "to work out."

I did say, if you noticed, that integrating females into the military was alot harder, in my opinion, than other races were or homosexuals will be. Some of the reasons are obvious. Women cannot sleep in the same quarters as men. Junior women walking a deck watch have to knock before entering a living space inhabited by males.... and vice versa. Showering..... heads..... everything on a ship was designed for a single sex compliment. So on and so on. If that could be dealt with, dealing with whatever happens when homosexuals are finally "officially" permitted would be a piece of cake. They are already there for pete sake...... it is already dealt with..... there is nothing but perceptions to deal with.
12.5.2008 7:16pm
Waldo (mail):
FWIW:

Actually, whether or not permitting homosexuals to serve openly will be easy depends on how it's done.

If you treat integrating homosexuals more like integrating females, it will go far more easily. Respecting privacy where needed to reduce friction (as I believe the Royal Navy does), showing common courtesy (knocking before entering), and applying the same sexual harassment standards that heterosexual males have to follow regarding females will in all likelihood make it a "piece of cake."

On the other hand, if you provoke a conflict with troops' religious convictions (there are Mormons in the military), homosexual integration will be far more difficult. If comments such as those by GEN Pace to the effect that he believed homosexuality to be immoral are suppressed, then that will only breed resentment and cause religious soldiers to leave. And tolerating diverse religious beliefs shouldn't be that much of a problem. I had a sergeant who thought drinking alcohol was immoral. It never stopped me from having a beer, and as long as it didn't affect his work, it wasn't a problem.
12.5.2008 8:34pm
DG:
{If, on the other hand, you said you were gay..... out the door you go..... with a BCD, at best. DADT prevents the asking and investigating UNLESS you "tell." Not someone else telling on you, but you yourself telling. }

Are you sure? I thought it was some kind of administrative separation, I thought only a court martial got you a BCD or DD.

/not a lawyer
12.5.2008 9:51pm
ewannama:
Why my views have changed on the policy/DADT should die:

1. Experience serving in the military. In 1995 I didn't know better and bought the arguments of military leaders. Since then I grew up. I served on an exchange tour in Canada and saw no problems open gays. While it still annoys me when people wear sexuality on their sleeves, I've heard far too much heterosexual story-telling to really hold affectations against gays. If behavior is disruptive, orientation is not the real problem. If someone else gay-bashes a comrade, I won't just accept that as innate hickness. We already tolerate far too much intolerance. Soldiers and sailors can be macho and proud of their country and service without hurting or shunning a fellow citizen. The people I served with were as professional as the examples they saw in their leadership. Family, other relationships, and personal biases mattered, but not on mission.

2. Thought on the topic. Even if I did have religious views, the Christian churches I was raised in taught tolerance. Even without such judgment, I was raised in a homophobic environment (still available on many TV shows) and recognize a certain reproductive order, and admit to a bit of instinctual squeamishness. I still don't have to love all of a person's personal choices (and genetic predisposition for most gay guys) to respect and appreciate his service. Race is not a perfect analogy given that there is no behavior element or even slight possibility of choice among other things, but thankfully the military was led on that. Congress need not be led by the military in backward views. Gender is also not a great analogy, and even with remnant discrimination (e.g. types of service) mixed gender units create far more problems than open gays would. Deploying units always have issues with pregnancy and fraternization. Relatively few gays will not magically convert others and are even less likely to get or make someone pregnant. Judge on job performance.

3. I am going back into the military to serve as a lawyer. I don't want to deal with DADT nonsense. Real criminal acts and disruptions to mission effectiveness, yes. Thankfully Admiral Larson and others have changed their views like me, and it might not be long before Congress repeals DADT.
12.5.2008 10:52pm
trad and anon (mail):
Once again, it needs to be explained that sexual orientation is not a protected class under the U.S. Constitution (as defined by SCOTUS, of course). Until such time as it is, legal challenges to DADT, DOMA, and other legislation on the Gay Rights Hit List will go absolutely nowhere.
You'd think that, but then you have Romer and Lawrence to contend with. Both came stamped "good this day only" a la Bush v. Gore; as of right now they seem to be heightened rationality cases a la Cleburne, Moreno, etc. But in some lines of cases the early cases read like they were decided on heightened rationality grounds, but were retroactively reinterpreted as "really" having been heightened scrutiny cases when the Court later found a new suspect class/fundamental right.

Kennedy wrote the majority opinion in both Romer and Lawrence, so it's far from inconceivable that he could join the liberals in striking down DADT. In fact, he probably has no interest in making it a suspect classification: why else would Romer and Lawrence have had all that language limiting their holdings? The result is that as of right now there's no chance of sexual orientation being declared a suspect classification unless one of the five conservatives gets hit by a bus or caught taking bribes, but SCOTUS might strike down DADT anyway.
12.6.2008 2:11am
J_A:

If they were permitted to "come out of the closet" their compatriots would realize in about a microsecond that orientation doesn't matter..... a guy watching my six, in a very real way, is still watching my six.... my life depends on and has depended on that very same individual. NOTHING, and I mean nothing compares to the real "band of brothers." To this day, there is nothing that I wouldn't do for anyone with whom I shared the combat experience...... NOTHING! I wouldn't give a crap what his sexual orientation was..... Why would that matter? He saved and/or covered my ass!

It tends to be forgotten whenever the subject is DADT, but gay people are already serving honorably and giving their limbs and lives today. They just have to do it in secret

Do many of you know the name of the first US soldier to be injured in Iraq?

His name is Eric Alva

And he is gay



http://www.liveleak.com/view?i=7b8_1216914590
12.6.2008 9:03am
hazemyth:
ForWhatItsWorth: "There is nothing that proves the meddle of a warrior better than war."

I agree on you with this point and think ithas much broader application than you suggest. I recently read "Lost Battalions: The Great War and the Crisis of American Nationality" by Richard Slotkin, which studies the service of (still segregated) black and ethnic battalions (mainly Jewish and Chinese American) in WWI. Their performance in battle, he argues, went a long way toward not only proving their worth to millitary service but their membership in American society (as well as their value as human beings). Of course, we know how much longer it took to desegregate society.

Waldo: "I had a sergeant who thought drinking alcohol was immoral. It never stopped me from having a beer, and as long as it didn't affect his work, it wasn't a problem."

This comparison trivializes the seriousness of anti-gay prejudice. I'm not so worried by the insensitivity of it, which I suspect was unintentional, than it's naivete. anti-gay prejudice is a serious problem, for gays, for society-at-large and definitely for military cohesion.

Unfortunately, homosexuality is not an issue over which a gay man or woman can comfortably agree-to-disagree. After all, you're talking about something that's integral to your life and your identity. Something that shapes some of your deepest feelings and most important relationships.

Moreover, such attitudes are not merely opinions, any more than white supremacy was just a question of a bunch of white people's opinions about blacks. These things are social and legal structures that dis-empower the targeted minorities, ranking them as inferior and interfering with the free exercise of their rights.

This is why gay rights activists make comparisons to issues of race.

Following racial integration, how did the military handle racism in the ranks? Undoubtedly, verbal abuse (like calling another service member a n-----) was officially proscribed and punishable, under general rules of military conduct. Whether officers actually did this tho...? What about those servicemen that denounced miscegenation etc.? What about officers that expressed such views? Would that have made their treatment of black subordinates suspect?

ForWhatItsWorth: "Did I share the sexual exploits of me and my wife with my fellow warriors?"

Don't make the common mistake of simply equating homosexuality with sex because it's in the word. As I'm sure you already appreciate, there's a lot more to it than that... Borrowing from your example, I would guess you DID talk a lot about your wife, how much you loved her, how much you missed her, what plans you had together, etc. A homosexual serviceman would have similar feelings about his husband or boyfriend. If those feelings met with scorn from his fellow unit members, it would be detrimental to hi and the cohesion of the unit. Likewise, if he were required to be silent about these important things, while his heterosexual counterparts were not.

And lastly...

ForWhatItsWorth: "Women cannot sleep in the same quarters as men. Junior women walking a deck watch have to knock before entering a living space inhabited by males.... and vice versa."

Hey, just go unisex. Works on the Galactica. ;)
12.6.2008 12:28pm
hazemyth:
Sigh...

"I agree WITH you ON this point..."

You know, I DID proofread.
12.6.2008 12:29pm
Waldo (mail):
hazemyth:

Unfortunately, homosexuality is not an issue over which a gay man or woman can comfortably agree-to-disagree. After all, you're talking about something that's integral to your life and your identity.

Ageeing to disagree is at the heart of tolerance, though. From Webster, tolerate: "2. to recognize and respect (others' beliefs, practices, etc.) without sharing them."

If homosexual integration requires the military to be intolerant of religious belief, then it will harm unit cohesion and recruiting far more than the current policy.
12.6.2008 5:07pm
Randy R. (mail):
"If homosexual integration requires the military to be intolerant of religious belief, then it will harm unit cohesion and recruiting far more than the current policy."

I don't see why integration would *require* the military to be intolerant of religious beliefs. The only requirement is that the military says that every soldier must treat all other soldiers with respect. THAT might go against some religious beliefs (as no doubt it did when blacks were integrated), but that's a problem with the religioun, not the military.

If, on the other hand, the military were to say to Mormons that well, we know you guys have a special hatred towards gays, so we will accommodate your beliefs and not make you work with any gays, then you would be treated one class differently from the other, and that would result in problems.

The military doesn't require that you like everyone you work with, just that you treat them with respect. If you can't live with that, than don't join the army. Simple as that.
12.6.2008 7:41pm
Waldo (mail):
Randy R:

"I believe homosexual acts between two individuals are immoral." Pace

Should a soldier, sailor, airman, or marine be disciplined for that statement, which is based on religious belief?

If so, how do you reconcile that with this law regarding religion?

Congress shall make no law ... prohibiting the free exercise thereof ...

Lastly, can homosexuals live by this rule when it comes to the religious?

The military doesn't require that you like everyone you work with, just that you treat them with respect. If you can't live with that, than don't join the army. Simple as that.
12.6.2008 9:05pm
Randy R. (mail):
"Should a soldier, sailor, airman, or marine be disciplined for that statement, which is based on religious belief? "

I don't really care what a soldier says. It's his actions, and he is required to treat all other soldiers with respect.

If, on the other hand, it is okay for a soldier to say what Pace said, then it should be perfectly fine for a gay soldier to say that Mormons are going to hell for their bigotry towards gays. Free speech, right?

"Lastly, can homosexuals live by this rule when it comes to the religious?"

I don't know. You would have to ask every single gay person who is or plans to be in the military.

It's as silly as me asking you, Can you heterosexuals live by this rule too? Can you answer for all of them?
12.7.2008 12:11am
Randy R. (mail):
I DO get a little sick and tired of this hiding behind religion to justify bigotry, though. No one should get a free pass to discriminate against any one just because it's their religious beliefs. Again, you don't have to like everyone, but you have to treat everyone equally, whether it's in the military or not. It's sort of a Christian principle, but then, who said that all Christians actually follow their principles?

You will also recall that Pace quickly backtracted right afterwards and stated that he would treat all gays with respect. That's all I'm asking. If that's too much for some people, then they should consider another career.
12.7.2008 12:16am