Court to hear arguments on gays in military (the ultimate in "lose-lose")

Reuters ^ | Sep 1, 2011 | Mary Slosson

[markomalley]

Obama administration lawyers will ask a federal appeals court on Thursday to vacate a judgment declaring "Don't Ask, Don't Tell" unconstitutional now that the ban on openly gay men and women in the military is about to be repealed.

But attorneys for opponents of the ban argue that the court decision striking it down should be left intact, preserving a legal precedent for anyone discharged under the policy who is seeking reinstatement, back pay or other recompense.

President Barack Obama in December signed a repeal of the 17-year ban into law, and he announced last month that the repeal would take effect September 20 following months of preparation by the Pentagon to implement the policy change.

The administration has argued that the legal case against "Don't Ask, Don't Tell" is therefore moot and that the landmark judgment won last year by a gay rights group, the Log Cabin Republicans, should be vacated.

More than 13,000 gay men and lesbians have been expelled from the armed services for revealing their sexual orientation since the policy went into force in 1993 under then-President Bill Clinton.

Their circumstances vary, and no one knows how many might seek to reenlist or change their discharge status, said attorney Dan Woods, representing the Log Cabin Republicans.

[markomalley]

Can one root for both sides to lose in a case?

[dila813]

this is going to be interested, the military discharged people under this policy since Clinton and similar discharges occurred since WWII, could we have people making claims for back pay that go back 40 years?

Gay reparations?

[Boogieman]

So we can say Obama was for DADT after he was against it?

Oh, and PS: Thanks Log Cabin Republicans for fighting for true Conservative principles in this case. /sarc

[Lucky Dog]

At issue is the repeal of Section 654 of Title X of the U.S. Code. This law, on the books since 1993, states (in part):

"The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

Repeal of the 1993 law noted above did not repeal the Uniform Code of Military Justice (UCMJ).

The UCMJ was passed by Congress on 5 May 1950, signed into law by President Harry S. Truman, and became effective on 31 May 1951.

Uniform Code of Military Justice [excerpted]:

Article 125.

“(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. Penetration, however slight, is sufficient 
to complete the offense.

(b) Any person found guilty of sodomy shall by punished as a court-martial may direct.”

The oath taken by every president on first entering office is specified in Article II, Section 1, of the Constitution:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States. [emphasis added]

US Constitution [excerpted]

Article I

Section. 8.

Clause 14: [The Congress shall have Power] To make Rules for the Government and Regulation of the land and naval Forces;

Note that Congress has prohibited sodomy in the military through the UCMJ. All of the extraneous uproar concerning the repeal of the 1993 law is just that unless Congress takes the additional action of changing the UCMJ. Military commanders, including the “Commander-in-Chief,” are obligated by their oaths of office to enforce the rules and regulations made pursuant to laws (UCMJ) promulgated by Congress for the US military.

Without a change to the UCMJ eliminating the prohibition on sodomy, it appears the policy will revert to that which existed before 1993. Homosexual practitioners, if discovered (provably) engaging in sodomy, will be subject to court-martial. Consequently, the only way this situation can be averted is for the Commander-in-Chief to violate his oath to support the Constitution and issue illegal orders not to enforce the UCMJ.

[StonyBurk]

IMO those who have chosen the homosexual orientation have already lost.

[freedomwarrior998]

I wish it were that simple, and I wish you were right, as these perverts will absolutely destroy the military with their immoral acts, but the military appellate courts have all but said that Lawrence v. Texas will control in cases of consensual sodomy. See; e.g; United States v. Marcum, 60 M.J. 198 (C.A.A.F.2004). In essence, the court came up with a complicated three part analysis in regards to sodomy within the military:

“First, was the conduct ... of a nature to bring it within the liberty identified by the Supreme Court [in Lawrence]? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” United States v. Hartman, 69 M.J. 467, 468 (C.A.A.F. 2011).

Marcum was convicted because he engaged in forcible sodomy. The court hinted that if it had been a prosecution for consensual non-forcible sodomy, the “liberty interest” in Lawrence would control.

The Supreme Court destroyed a lot when it handed down Lawrence. I personally don’t think much of anything in America is salvageable, absent a whole-scale change in the law.

[Lucky Dog]

I wish it were that simple, and I wish you were right...

In the past, the courts have been deferential to the power granted to Congress to regulate the military. Additionally, there has been a recognition that civilian "rights" are limited in the military environment.

I agree with your analysis that sodomy within the ranks will seriously degrade our military capability. I hope that this travesty can be stopped.