Patterico's Pontifications

9/9/2010

Federal Judge: Don’t Ask, Don’t Tell Unconstitutional

Filed under: Dog Trainer,General — Patterico @ 7:16 pm



As with Prop. 8, I oppose the policy but can’t imagine the decision is legally correct.

The L.A. Times has more here.

UPDATE: That L.A. Times blog entry has the following dubious claim:

Despite Obama’s criticism of the policy, the Justice Department vigorously defended “don’t ask, don’t tell’’ and even tried to undercut the case with a technical legal challenge over whether the named plaintiffs were dues-paying members of the organization that filed the lawsuit: the Log Cabin Republicans.

Mmmmm, re the supposedly vigorous defending, not so much. The paper’s news article does a better job of explaining what the decision made clear: DoJ rolled over on this one.

The sole evidence presented by the Justice Department was the legislative history of the ban, which federal government lawyers argued showed the policy was properly adopted by Congress though a deliberative and reasoned political process. No witnesses were called.

Vigorous!

139 Responses to “Federal Judge: Don’t Ask, Don’t Tell Unconstitutional”

  1. of course the american dream bounty hunting and the death of 1 million with gattling guns and repeater rifles and vietnam and hiroshima  nagasaki is the way of psychotic delusional money minting america. we all know that the lord jesus and eternal life is absolute truth but all hail to that pastor that wants to burn the qoran but he has forgotten to include the new testament and all other religious texts dogmas and creeds. he is just too narrow minded for me. belief in the lord jesus big money greed piece of the pie peace and freedom is how it should be american style. you better believe it as the us declines and falls to be replaced by china india latin america and karl marx the new rock star. yesterday i saw a film with lyndon johnson and his wonderful disertation on the glorious vietnam war to get rid of the gooks and the anti-christ. horseshit and bullshit american style is so wonderful and mind body soul and planet polluting. sick sick sick just like dog shit which we all smell love and hate

    adam rosenblatt (c65b07)

  2. The judge is a Clinton appointee, recommended by Feinstein and Boxer.

    beer 'n pretzels (3d1d61)

  3. First Amendment or not, America does not have classes entitled to bear arms and others that do not.

    Second Amendement or not, every able-bodied, adult American has the right to take up arms in defense of our country.

    It’s an easy decision. Unfortunately, precedents are against it. Maybe this case will make certiorari.

    nk (db4a41)

  4. Probably thinks that it violates a fundamental right to privately go public with one’s sexuality/gender identity.

    Icy Texan (d61420)

  5. DADT is not about “I’m gay and I’m proud” shouted loudly. It’s about any indication that you’re a boy that does not like girsl or a girl that does not like boys.

    In any case, so what? If they’re walking through a minefield in Afghanistan to keep me safe, what do I care where they did their wicks?

    nk (db4a41)

  6. “dip their wicks”

    nk (db4a41)

  7. nk, “Don’t Ask Don’t Tell” is a prohibition on behavior, not class.

    beer 'n pretzels (3d1d61)

  8. As many things, I assume this thread will be divided into a discussion of the policy itself as well as the legal arguments involved.

    As far as the policy goes, I’m going to share a few thoughts and hopefully others will give thoughtful responses.

    Years ago I had an unnerving experience visiting friends at another university. As I was standing at the sink brushing my teeth in the men’s bathroom, two women walked in, unannounced. As far as I was concerned, I was glad I was brushing my teeth and not in the shower or standing at a urinal, and I finished brushing my teeth quickly. Being a single heterosexual did not make me eager to see exactly what these two young women were going to do in this circumstance.

    In general, unless one is in the habit of hanging out (no pun intended, but I thought I’d leave it anyway) in a nudist colony, I think most people would find it uncomfortable to have such exposure. Maybe I’m wrong; what percentage of you heterosexuals wouldn’t mind being in a group shower when a few members of the opposite sex walk in? (Now, I’m assuming that “privacy” in the military is akin to being on a dorm floor at best- limited privacy. Correct me if I’m wrong.)

    MD in Philly (3d3f72)

  9. Ironic that a Republican group filed the suit that led to this court decision on this Democrat enacted legislation.

    daleyrocks (940075)

  10. Daley, I believe the Log Cabin Republicans are largely gay who agree with most of the fiscal and government issues of the Repubs. I never thought of them as “infiltrators” or the like, just people whose political views were conservative/libertarian on many issues even though other aspects would generally put them with the Dems.

    MD in Philly (3d3f72)

  11. the interesting thing is that, according to Gabe over at AoS, the Feds made no real effort to defend the case, which virtually served it up on a platter for the judge to make a political decision.

    a deeper question to discuss is why are these sorts of cases apparently always given to someone with a demonstrable bias one way or the other?

    redc1c4 (fb8750)

  12. Volokh has a link to the opinion. It is particularly damning that it takes until the 82nd page, out of 86, for the judge to even notice that gee, maybe these things are different when the military is involved.

    Seriously, has this judge never heard the phrase: “We are here to preserve democracy, not practice it”?

    The whole thing is crap. It is a judge very arrogantly substituting his views of what is the best policy over military’s. I will also note that the district court doesn’t even address Goldman v. Weinberger, which said that the military could restrict a jew from wearing a yarmulke in the name of uniformity. I believe since then congress has voluntarily chosen to remove any anti-yarmulke rules, but that doesn’t change the validity of the constitutional analysis. Citation for Goldman: 475 U.S. 503.

    Indeed, this appears to be another case of no one in the government willing to even defend the law. The judge writes, “Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” Disgusting, if true. But after judge Walker’s deception on this point, and still being heavily medicated, I am reluctant to trust this new judge.

    NK

    Are you on drugs? The second amendment doesn’t grant the right for anyone to serve in the military. I mean a guy in a wheelchair can carry a pistol. Does that mean he has a right to serve?

    And actually, I am critical of some of the military attitudes on the subject of handicapped. My father almost washed out of the marines because he is bowlegged. But the thing didn’t actually impair him in any significant way. By comparison O.O. Howard, the head of the Freedman’s bureau had lost his arm in the war at seven pines. He went on to fight in just about every major battle in the civil war, including Gettysburg, Antietam, Chancellorsville. Apparently they didn’t think two arms was a bone fide occupational requirement of being a general. And I remember learning about what sonar guys do on subs, the deep listening and I thought, “why not bring blind people in for that? They won’t need as much training because they are ALREADY using their ears better than most of that.” So I would encourage the military to lighten up a little on this stuff. But I would never pretend the constitution presumed to make the military subservient to the judges.

    Aaron Worthing (f97997)

  13. red

    yeah, the judge claims they barely put up a fight. see my last comment above.

    Aaron Worthing (f97997)

  14. “I never thought of them as “infiltrators” or the like”

    MD in Philly – Neither have I and I did not mean to imply such.

    daleyrocks (940075)

  15. Homophobes.

    JD (8ded14)

  16. I skimmed the decision a bit earlier today before getting distracted by the news about the fire.

    The argument appears to be a first amendment argument – basically, DADT interferes with the free speech rights of soldiers.

    The implications of that are rather bizarre – if DADT interferes with their free speech rights, doesn’t (say) the firing of Gen. McChrystal, too?

    aphrael (fe2ce4)

  17. Re: #1
    Preach on, Brother Beavis!

    Icy Texan (d61420)

  18. apparently always given to someone with a demonstrable bias

    well, when one side simply declines to put up a fight, it’s hardly a surprise that the resulting decision has the appearance of being really biased.

    i mean: a non-biased judge, when presented with evidence coming entirely from one side, is highly likely to end up biased towards the only side that made any effort to convince him.

    aphrael (fe2ce4)

  19. aphrael – If it took him 82 pages to even acknowledge that things might be different in the military, I find it borders on suspending disbelief to think that he simply went that way because one sides arguments were more compelling.

    JD (8ded14)

  20. JD: could be.

    i might get back to reading it tomorrow. at the moment, i’m watching local TV news (which I *never* do) for more information about the San Bruno gas explosion.

    It’s been a bad night in the bay area.

    aphrael (fe2ce4)

  21. I served nine years on active duty (1956-1965) and I know that there were “gays” in some of my units. It did not bother me, I grew up in New York and worked on Broadway before entering the service.
    I think that “don’t ask, don’t tell” is a reasonable solution to a cultural problem.

    As to having blind persons serving on submarines – think – how quickly can a blind person move around in an emergency situation aboard any ship – much less a submarine?

    Under those circumstances, blind persons are a danger to themselves, their shipmates and, possibly, to the ship.

    Longwalker (4e0dda)

  22. One other idiotic thing about the ruling. Part of it was based on Lawrence v. Texas. The judge says this:

    > Plaintiff claims the Don’t Ask, Don’t Tell Act violates its members’ substantive due process rights, identified in Lawrence as rights associated with the “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

    Mmm, yeah, let’s read that passage in full:

    > Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

    You know, because that is what service in the military is ALL ABOUT, don’tcha know? Its about liberty of the person.

    Complete hogwash, obviously. Joining the military at this time is a voluntary act by which you submit yourself to treatment that rivals prison in its toughness. It is not about individuality, but about making each one uniform in look and thought.

    And notice of course the judge says that the policy makes it harder to recruit because of the schools that block out the military (I wonder if they are still doing that, since Rumsfeld decision said that the military could take away their funding of said school if they did). But the judge never once asks whether it would be harder to bring in heterosexuals, yes, even homophobic ones, into the military.

    Again, pure crap.

    Longwalker

    Well, first let me say this. I am not going to order the military to use blind people, even if I ever had power they were bound to recognize. Second, when exactly does a sonar operator have to move around? And in fact if the sub loses power, that blind person might be the only person who can move around.

    I am humble enough to admit I could be wrong. But I feel like the military has never really considered that in any seriousness, and that, I think, is a mistake. I believe its actually a very close call whether the natural gifts blind people would enjoy as sonar operators, would outweigh any danger to the remaining crew. I mean a sonar operator is the “eyes” of the submarine, especially in silent running. You say that if there is an emergency the blind person might get in the way. But what if the result of using a blind sailor is that there are less emergencies like that?

    As for danger to themselves, well, if they are willing to take the risk then we shouldn’t stop them “for their own good.”

    But whether I am right or wrong about that point, I think you would agree that generally we should defer to the experts actually in the military. If I was president, I would probably order my secretary of the navy to consider my POV, but if the guy seemed to take it seriously, and said, “no” then that would be the end of it for me. We have civilian control of the military, yes, but we civilians should know better than to substitute our judgment for theirs on most matters.

    Aaron Worthing (e7d72e)

  23. For those thinking they’re maybe pitching in a little towards the group understanding the opinion, it would probably help your credibility if you stopped referring to the judge who wrote it as “he”.

    Yes, Virginia, there are women judges.

    shooter (32dc25)

  24. And approved by the likes of Lott, back in ’99, Scalia was prescient about this, as he has with practically everything else in this train of thought. Yes a ‘blind’ sonar operator seems a bit
    wide of the mark, but not with these judges, I wouldn’t take that chance

    ian cormac (6709ab)

  25. Hey, it’s shooter, last seen making a bogus claim which I soundly refuted, only to see shooter disappear.

    Patterico (c218bd)

  26. Patterico,

    If you look through my first comment you will see where the opinion itself says that the government rolled over. I’ll email you a link to the opinion itself shortly. it is actually really outrageous in its sheer arrogance.

    But given that Judge Walker said something similar, i guess i’m once bitten twice shy in crediting that claim.

    Shooter

    You are indeed correct sir, it is Virginia Phillips.

    Aaron Worthing (e7d72e)

  27. On the merits, I think it maybe worthwhile to point out that the threshold for maintaining a Congressional intrusion into the exercise of personal liberties in the workplace is relatively easy to defend, but probably requires something more than this (from page 84):

    Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.

    So, I notice there are some here saying the DOJ went through the motions, or maybe even took a dive.

    Which leads to a question one on which I plead total ignorance:

    Is there any evidence anywhere, that actually exists, that would be capable of being seen by a court of law of supporting this law?

    Despite my liberal bent, I am not trying to be sarcastic here. I know there are opinions, some of which Ive heard; but opinions aren’t evidence; indeed, even expert opinions, which is the only kind of opinions courts allow into evidence (except to explain state of mind), have to be supported by SOME actual evidence: a study, a poll, a reliably-constructed demonstration, testimonial anecdotal descriptions of actual incidents.

    There were gays at least some phases of my indoctrination and training (for all I know, all of them), and there certainly were gays in the offices I served and at least some of the bases I visited. It seems unreasonable to me that with all the several thousand showers I took there wouldn’t be some gay soldier present, but I have no memory of any incident.

    However, I didn’t serve in combat, nor was any of that training or service oriented much towards active combat duty.

    Functional blindness is a disqualifying disability so forget that an analog, but surely at least some analog can be found, something out there that actually happened or some expert can extrapolate from.

    But … maybe not.

    shooter (32dc25)

  28. Shooter

    I am not arguing that the military should be required to admit blind people as sonar operators. I am saying I believe that might be a good idea to given an example of how i ultimately defer to military judgment.

    If you think I am trying to argue in favor of this idiotic ruling, you have not been paying attention.

    Aaron Worthing (e7d72e)

  29. Patterico – Indeed. It has proven itself to be an aggressive sophist, that scurries away when called on its mendacity. To paraphrase, so much of what it knows just isn’t true.

    JD (ff08c4)

  30. This idiotic decision just confirms my belief that the November elections won’t come soon enough.

    The only regret I’ll have on Election Day will be that I don’t live in Chicago…where I’d be able to “vote early and vote often” against everything the Obama clique represents.

    MarkJ (42fe5b)

  31. Shooter

    Btw, i always liked a joke i read in a robarcheck (sp?) column. It was a letter (paraphrasing):

    “Dear New York Times,

    “I have told been told that there is a state between Maryland and North Carolina. I believe it with all of my heart, but the elves at my toy factory tell me that state is a myth and they laugh at me. Can you tell me the truth?

    “Signed

    “Santa Claus”

    And the reply? “Yes, Santa Claus, there is a Virginia.”

    Aaron Worthing (e7d72e)

  32. The judge needs to read the Cnnstitutinn. ARticle I, Secion 8 gives Congress the power to raise armies and to establsh the rules for their conduct.

    Anybody always had the right to say “I am a homosexual.” So what. HOwever there is no right to serve, and you can violate a right does not exist.

    DavidL (2a854d)

  33. My classmate, from grade school to high school to law schoool, now a judge, lost his appointment to West Point (honors student, JROTC) because he had pins in his ankle from a childhood accident. He was appointed but a doctor cut him. It was 1975 and we did not need cannon fodder as much. Those pins would not have saved him from the Vietnam draft. I do not trust military policy anymore than I trust any other government policy.

    As for my Second Amendment theory … maybe that’s why I’m not a judge. I would combine the Second Amendment with the Privileges and Immunities Clause to find that there is a right in every able-bodied, adult citizen to bear arms in defense of his country. The counter-argument, about morale and piss-shy recruits, would not be compelling enough for me. This same stuff was said about black soldiers .

    nk (db4a41)

  34. nk

    The comparison to black soldiers is inapt, because every step toward racial equality in the military has been voluntarily adopted. The inclusion of black soldiers was voluntary (and indeed constant in American history), and the desegregation of our military was done by Truman, not the Supreme Court.

    The courts have rightfully taken a very hands off approach to this. Even Stevens did in the Goldwater case. i write in more detail about that point at my own blog.

    Aaron Worthing (e7d72e)

  35. Now, now, A.W. … voluntary? You mean the military voluntarily allow? Like they have a right to?

    They don’t. The military is under civilian control and every citizen is a soldier if he wants to be one.

    I agree that the military is an institution — one of the pillars of the State. But not an all-powerful or infallible one.

    nk (db4a41)

  36. The comparison to black soldiers is inapt, because every step toward racial equality in the military has been voluntarily adopted.

    Aaron is making a distinction without a difference. Unequal treatment under the law is what is at issue here, and that issue applied to black soldiers (in its day) just as much as it applies to gay soldiers today. A violation of constitutional protections is just that: a violation of constitutional protections. And the fact that the executive branch remedied the situation (as opposed to the judicial branch) has no bearing in the analysis.

    The government didn’t meet its (lowered) burden.

    Kman (d25c82)

  37. Democratic run DOJ defending a Democratic policy, and they still can’t do their constitutional duty.

    Despicable.

    SPQR (26be8b)

  38. Maybe Kman can quote for us where the Constitution outlines who is eligible for service in the US military. Clearly, allowing judges to determine who the military chooses to keep in their ranks is the best way to provide for the national defense.

    JD (ff08c4)

  39. Nk, you misunderstand me, but then i am heavily medicated so maybe i wasn’t clear.

    i am saying that the president and/or congress has led the way on racial progress in the military. So i am saying that admission of black people into the military and desegregation was done voluntarily by the popular branches, rather than by judicial fiat. There is no court case, for instance, that desegregated the Military. Truman did it, by executive order. So when i am talking about it being a voluntary decision, i mean that Truman wasn’t forced to do it. Of course the soldiers were required to comply, like it or not.

    and no, the military is not infalliable. But judges in particular should be loathe to substitute their judgement for that of the military’s. Read Stevens’ concurrence in the Goldwater case. The man pretty clearly thought that the uniformity justification was overblown, but nonetheless sided with the military. so even that highly liberal justice recognized that he shouldn’t second guess them, even when he had misgivings himself. And indeed if wikipedia can be trusted, Stevens was himself a military vet, so he was in a better position to speak than most people. But he chose to defer and rightly so.

    Aaron Worthing (e7d72e)

  40. That’s a bug not a feature, SPQR, is this another Carol Williams special (didn’t check the byline)

    ian cormac (6709ab)

  41. ________________________________________

    The comparison to black soldiers is inapt

    Even more so since racial characteristics are pretty much immutable. IOW, you don’t choose to have inherently dark or light skin, or various innate facial characteristics. By contrast, sexuality is greatly linked to the two dynamics of personal behavior and free choice.

    My cynicism about the “GLBT” agenda — which is primarily a leftwing-driven agenda (Log Cabin Republicans, Dick Cheney, Patterico, etc, notwithstanding) — has increased over the years because there apparently is quite a bit of “B” among “Gs” and “Ls.” So this appears to be not exactly uncommon:
    <blockquote>dailymail.co.uk:

    And while the convention for film actors is to be ostentatiously keen on women while hiding gay relationships, [British actor Rupert] Everett does the reverse. He talks elaborately about his boyfriends and then discreetly mentions the fact that he has had affairs with a series of high-profile women, including the actresses Beatrice Dalle, who he briefly thought was pregnant with his child, Susan Sarandon and the late Paula Yates.

    ‘I am mystified by my heterosexual affairs, but then I am mystified by most of my relationships,’ he says.

    Everett vividly describes in his book the cocky vulnerability of Paula Yates and how her life tumbled into chaos and death. He had an affair with her, on and off, for about six years during her marriage to Bob Geldof.

    Mark (3e3a7c)

  42. Aaron is making a distinction without a difference. Unequal treatment under the law is what is at issue here, and that issue applied to black soldiers (in its day) just as much as it applies to gay soldiers today. A violation of constitutional protections is just that: a violation of constitutional protections. And the fact that the executive branch remedied the situation (as opposed to the judicial branch) has no bearing in the analysis.

    The case was not decided on equal protection grounds.

    I wonder if this means bigamists can no longer be excluded.

    Michael Ejercito (249c90)

  43. Maybe Kman can quote for us where the Constitution outlines who is eligible for service in the US military.

    Silly game. Maybe JD can quote for us where the Constitution outlines who isn’t eligible for service in the US military. Wheeee… that was fun!

    Kman (d25c82)

  44. Bah, an embarrassing mental f-rt on my part. I kept talking about the Goldwater case. its actually Goldman. can i plead that i am under the baneful influence of constant benedryl?

    Aaron Worthing (e7d72e)

  45. Michael

    That must be kman. Don’t bother with him. he is mendacious in the extreme. That is why I put him on ignore.

    My point in citing the voluntary desegregation of the military etc. is not to prove it has to be voluntary, but to refute the assertion by NK that this is an example of the courts rightfully intruding. Whether the courts could rightfully intrude or not, they didn’t, so the precedent has not been set.

    And bluntly, they shouldn’t be able to. Bolling v. Sharpe was a ridiculous decision. Mind you, I like its result, but its not enough to do the right thing, but to do the right thing the right way. if the supreme court had not discovered a right to equal protection implied in due process, then for all we know, the people might have risen up and amended the constitution accordingly. I mean they did ban poll taxes on their own, right?

    Aaron Worthing (e7d72e)

  46. Kman, its in Art I sec 8.

    SPQR (26be8b)

  47. My point in citing the voluntary desegregation of the military etc. is not to prove it has to be voluntary, but to refute the assertion by NK that this is an example of the courts rightfully intruding. Whether the courts could rightfully intrude or not, they didn’t, so the precedent has not been set.

    This has to be one of the silliest statements on this thread.

    Forget the specific issue of DADT; forget whether you are for/against the outcome of this case. Plaintiffs brought a lawsuit TO THE COURT alleging various constitutional violations and the court is supposed to say, “Uh, no. We’re just a court of law. We can’t rule on constitutional issues. There’s no precedent for it. It involves the military, you say? Yeah, no precedent for us getting involved.”

    Puh-lease. It’s laughable to argue that courts can’t “intrude” where there is a legitimate disagreement about the constitutionality of a law.

    Kman (d25c82)

  48. Kman, its in Art I sec 8.

    Art I, Sec. 8 doesn’t specify who is eligible for military service. At best, it only specifies that Congress can set those rules.

    But of course, Congress can set LOTS of rules. But in doing so, it can’t violate the Constitution, right?

    Kman (d25c82)

  49. Kman, that’s the point. Congress sets the rules and nothing in the Constitution overrides that power.

    SPQR (26be8b)

  50. SPQR:

    Kman, that’s the point. Congress sets the rules and nothing in the Constitution overrides that power.

    So in any area where Congress has the power to “set the rules”, it can pass unconstitutional rules? If it decided tomorrow that the Post Office can only be used by white people, there’s nothing in the Constitution which prohibits it?

    SPQR, I hate to be the bearer of bad news, but the U.S. Constitution is the supreme law of the land. It even trumps legislation passed by Congress.

    Kman (d25c82)

  51. SPQR – does the fourteenth amendment prohibit Congress from racially segregating the military?

    If not, then why doesn’t the first amendment prohibit Congress from restricting speech of soldiers?

    aphrael (9802d6)

  52. Kman, logical fallacies like begging the question don’t impress here.

    SPQR (26be8b)

  53. SPQR:

    Kman, logical fallacies like begging the question don’t impress here.

    Hey, YOU begged the question. I merely asked it.

    You seem to think that the Constitution gives Congress the power to set certain rules (and I agree with that), but somehow — in your view 00 that means Congress can even unchallengeable rules — even ones that violate the Constitution.

    Is that your position or not?

    Kman (d25c82)

  54. This is a judge conducting a stunt about as serious as that idiot minister in Florida who is going to burn all those Qurans. It will be reversed and will have no effect except to stir up the usual suspects. I have no problem with gay soldiers who are not overt about it. All of us who have served in the military know that there were gays among us. What this sort of decision, if upheld, would do is subject the military to the same harassment that other socially conservative institutions endure, like Prop 8 supporters.

    As one example of the difference between the military and civilian life, a female B 52 pilot was charged for adultery and, rather than face a court martial, she resigned..

    DADT is not about “I’m gay and I’m proud” shouted loudly.

    That’s exactly what it’s about and I think you know it.

    Mike K (d6b02c)

  55. At heart, I’m just a simple farmboy, and it just ain’t right.

    Cuff the Constitution.

    A man’s a man, and if he wants to defend his country he should.

    It just ain’t right.

    nk (db4a41)

  56. Patterico – I have no history of backing away from a fight, so whatever you infer from my not replying earlier to your meticulously crafted minutely footnoted refudiation it was not for any lack of stomach or to avoid conceding. I check in here every day or three, but if nothing about the subject catches my interest (for instance, generic polling, which I expect to start following closely shortly after voters cease voting for actual people — which Citizen United could bring about, but I doubt).

    To your point, you cannot seriously suggest I missed reading the very one of your post I was referring to i.e. lack of reading comprehension. I disagree with you; I figure from this confrontation you had with him, the penny dropped and he was able to place you more accurately in the cosmology of the blogosphere, as other than in the passing asteroid he misplaced you in.

    shooter (32dc25)

  57. BTW,

    I understand that Richard the Lionhearted, King of England, was one big queen. Not to mention Julius Caesar, “a husband to women and a wife to men”. 😉

    nk (db4a41)

  58. Aphrael

    The fourteenth amendment applies only to the states. There is no equal protection clause that applies to the federal government. However, in Bolling v. Sharpe, handed down the same day as Brown v. Board of Education and desegregating D.C.’s schools effectively conjured an equal protection component out of the due process clause of the 5th amendment.

    Its bullsh–, but its now well-settled bullsh– that is not likely to be overturned. And I admit I would be very reluctant to overturn it if I was on the supreme court. It has been on the books so long that there have been genuine opportunities to amend the constitution for that oversight that were obviously stymied by that ruling.

    As for the first amendment, it didn’t even provide a rabbi the right to wear a yarmulke in Goldman. When you disagree with a superior officer’s decisions, what do you say? “permission to speak freely” and that officer can say, “denied.” Isn’t that a restriction of free speech. They can force you to attend events with politicians you don’t like and at least be cordial to them. they can prohibit you from blogging or writing letters to the editor, or speaking on any political topic while in uniform. The idea that there is anything but an anemic right of free speech in the military is at odds with reality.

    Indeed the most ridiculous part of the court’s opinion is when the judge said that there was a right of “autonomy of self” found in Lawrence that applied her. No, when you sign up for the military you are very much giving up your self-autonomy, your individuality, etc.

    Btw, i will try linking to my blog commentary in the “website” line on this post, so if you click on my name, maybe you will see what i wrote in full. or i might end up in spam blocker hell again. of course if you are reading this, i guess i haven’t been blocked. heh.

    Aaron Worthing (e7d72e)

  59. And bluntly, they shouldn’t be able to. Bolling v. Sharpe was a ridiculous decision. Mind you, I like its result, but its not enough to do the right thing, but to do the right thing the right way. if the supreme court had not discovered a right to equal protection implied in due process, then for all we know, the people might have risen up and amended the constitution accordingly. I mean they did ban poll taxes on their own, right?

    Bolling was not an issue in this case. On the equal protection claim, the court had relied on the Ninth Circuit precedent set in Witt v. Department of the Air Force.

    We next turn to Major Witt’s Equal Protection Clause claim. She argues that DADT violates equal protection
    because the Air Force has a mandatory rule discharging those
    who engage in homosexual activities but not those “whose
    presence may also cause discomfort among other service
    members,” such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was
    not disturbed by Lawrence
    , which declined to address equal
    protection, see 539 U.S. at 574-75 (declining to reach the
    equal protection argument and, instead, addressing “whether
    Bowers itself ha[d] continuing validity”). We thus affirm the
    district court’s dismissal of Major Witt’s equal protection
    claims.

    The affirmation of a dismissal of an equal protection claim on the merits is of course binding precedent in the Ninth Circuit.

    In my opinion, DADT goes too far as it disqualifies people on the basis of orientation, not conduct. I’ve no problem with the military discharging people on the basis of sexual misconduct, including sodomy.

    Michael Ejercito (249c90)

  60. From Arron Worthing @ 39:

    But judges in particular should be loathe to substitute their judgement for that of the military’s

    Read the opinion: the judge who wrote this opinion agrees with you, and included that in her opinion.

    The phrase should be loathe to is not a synonym for should not. Otherwise, all those filed challenges to RomneyObamaCare would be doomed.

    shooter (32dc25)

  61. Can we move beyond teaching Kman “Constitution 101″ please? At least nk is more entertaining, with his ‘the 2nd Amendment gives anyone the right to join the military’ theory. *step**swing**fwap!*”Oh, my nose!”

    Icy Texan (d61420)

  62. NK at 54

    That sounds like it should be set to banjo music. :)

    That’s not a criticism, more like an observation.

    Michael

    I didn’t say bolling was at issue here. But when someone asks if the courts could desegregate the military by race, bolling becomes relevant for that purpose. The answer is that bolling was a dubious decision. But as you can see by my last comment, there are good reasons to allow it anyway. But we are getting off topic because you are right, they did not consider equal protection in that case.

    Aaron Worthing (e7d72e)

  63. Just don’t like people hurt, A.W.

    nk (db4a41)

  64. Shooter

    She did say she should be deferential.

    But she was not actually deferential.

    Read my blog on the Stevens concurrence in Goldman. That is what deference looks like.

    Aaron Worthing (e7d72e)

  65. You have no right to serve in the military and you have no right to freedom of speech in the military. You can serve if we decide you’re worthy, and when you’re serving, you can speak if we grant you permission to speak, and that’s the way it MUST be.

    Like most federal judges, Ginny is a complete and utter ass, and she ought to be impeached and barred from ever again holding any position in government, because she’s too stupid to understand that the ONLY purpose of the military is to kill our enemies in the most effecient matter possible, and that the military must not EVER serve as an employment agency for poncy hairdressers looking to express their sexuality. As long as she’s a judge, she’s a danger to the existence of the United States, and she ought to be treated accordingly.

    Btw, if I was dictator of America, any judge that submitted an 82 page opinion would be sacked on the spot. We’re not paying these idiots to bloviate, just to perform neeeded judicial functions.

    Dave Surls (654c08)

  66. Dave

    It was 86 pages, el presidente.

    Aaron Worthing (e7d72e)

  67. #65

    My bad.

    Dave Surls (654c08)

  68. Dave

    NP. i think most people either pass out with boredom, or tear up the opinion in a rage by page 70.

    More seriously, its an oversight that when corrected only makes your point more fully.

    Aaron Worthing (e7d72e)

  69. You have no right to serve in the military
    That’s where we disagree.
    and you have no right to freedom of speech in the military.
    I agree.

    nk (db4a41)

  70. “That’s where we disagree”

    You’ve disagreed with me before…and you were wrong then too.

    I think that’s called precedent.

    Dave Surls (654c08)

  71. Isn’t that a restriction of free speech

    Sure. Absolutely.

    Where in the Constitution does that power come from?

    The first amendment doesn’t contain an explicit exemption for rules regulating the military.

    So what’s the argument for why such rules are exempt from the first amendment?

    aphrael (e0cdc9)

  72. DADT is not about “I’m gay and I’m proud” shouted loudly.

    That’s exactly what it’s about and I think you know it.

    That’s really, really, really difficult to reconcile with the facts in the case.


    After Almy completed his third deployment to Iraq in January 2005, someone began using the same computer Almy had used while deployed; that person searched Major Almy’s private electronic mail message (“e-mail”) files without his knowledge or permission. The search included a folder of Major Almy’s personal e-mail messages,7 sent to his friends and family members, and read messages, including at least one message to a man discussing homosexual conduct.

    Almy thought the privacy of his messages was protected; he was very knowledgeable about the military’s policy regarding the privacy of e-mail accounts because of his responsibility for information systems.

    He knew, for example, that according to Air Force policy, e-mail accounts could not be searched unless authorized by proper legal authority or a squadron commander or higher in the military chain of command.

    So: one dude is dismissed for ‘telling’ in private email which the Air Force didn’t have the right to search but which was searched anyway.

    The rumor originated because, while off duty one day in January 2002, Nicholson was writing a letter to a man with whom he had a relationship before joining the Army; Nicholson was writing the letter in Portuguese to prevent other servicemembers from reading it, because it contained references that could reveal Nicholson’s sexual orientation. Despite Nicholson’s precautions, another servicemember caught sight of the letter while chatting with Nicholson. After the two had been talking for a few minutes, Nicholson realized she was one of the few persons he knew in the Army who also could also read Portuguese; he gathered up the pages of his letter after he noticed she appeared to be interested in it and reading it.

    Again: private mail which he’s deliberately writing in a (relatively) obscure language. The dude isn’t flaunting it and shouting it loudly.

    But he’s still dismissed.

    Because DADT is not – or at least, not in every case, about shouting loudly about how gay and proud you are.

    aphrael (e0cdc9)

  73. Aaron –

    I suspect your point would be stronger if the government actually called evidence.

    My earlier point — challenge — was on whether there was evidence available to be called that the government failed to call. Still no one heard from on that front.

    shooter (32dc25)

  74. Sure. Absolutely.

    Where in the Constitution does that power come from?

    The first amendment doesn’t contain an explicit exemption for rules regulating the military.

    So what’s the argument for why such rules are exempt from the first amendment?

    Goldman v. Weinberger, 475 U.S. 503

    Michael Ejercito (249c90)

  75. The first amendment doesn’t contain an explicit exemption for rules regulating the military.

    You realize that there is no absolute freedom of speech, even though there are no explicit exemptions to it in the Constitution. I think this isn’t a very good argument from you, since you obviously understand that if there is a strong enough government interest (such as military discipline, which is of paramount interest), an exemption to the first amendment exists.

    There’s no explicit exemption of free speech to death threats of libel or wikileaks spying, either.

    Your two stories make me furious, btw. People who serve their nation, carefully doing their best to abide by rules, deserve so much better.

    The military has to set rules. Some of them are going to have a degree of arbitrariness to them, but for the most part, they need to promote having the best military possible. I don’t understand the lack of discretion from comment in the cases you’ve sited. Deciding not to intrude, when you don’t know, is the entire spirit of DADT.

    The snoops should have been disciplined, not the gay servicemen.

    I think it’s worth pointing out that a lot of soldiers do use this discretion. I knew a guy who showed some suspicious indications he was gay, when I was enlisted. I could have snooped, but it wasn’t any of my god damned business. I bet the vast majority of our troops act this way.

    There are people we need to weed out of our military. They are called fatties. I’m probably one of the few who thinks DADT, if implemented with common sense, is a good way to handle the issue. An alternative that I think would work is some kind of extra equipment and provision for more privacy in the field, and allowing gays to serve openly.

    Still, it’s always going to come down to a few exceptional cases of morons not exercising discretion. IMO.

    Dustin (b54cdc)

  76. “So what’s the argument for why such rules are exempt from the first amendment?”

    It’s pretty simple, really. If you’re serving under me, and I tell you to shut your damn mouth, and you give me some crap about freedom of speech, I’ll have have your ass brought up on charges of insubordination.

    If you pull that crap out in the field, in a combat situation, then I’ll shoot you dead, if that’s what it takes to shut you up.

    Clear enough?

    Dave Surls (654c08)

  77. Shooter likes his “evidence” from dubious social “science” tests and polling. And making up burdens of proof that do not exist. And running around with goalposts, and being generally mendoucheous, as A.W. Noted.

    JD (1c1ab6)

  78. Isn’t it strange how this new found Constitutional right was hidden for all these years, and then Obama regime’s justice department just happens to lose the case. Really weird.

    Is the penumbra emanating again?

    tarpon (0d210f)

  79. Mmm, okay new post on my blog. I show that in fact every single argument used in this case could have applied to Goldman. So in other words, her claim that she was as deferential as the Goldman court is false. If you are interested, click on my name and hopefully it will take you to the link.

    Aphrael

    The first amendment doesn’t apply to military life. Seriously, do you really think you can speak freely in the military. The drill sergeant says “you are a worthless sack of puss” and you are free to refute him? Give me a break.

    Shooter

    You are right. The Obama administration appears to be derelict in its duty on this. And if they got off their behinds and presented a real defense, maybe this would have turned out different. But in fact the Goldman case demonstrates that this decision was wrongly decided. There is literally no argument that judge ginny put up that wouldn’t apply equally to Goldman.

    Aaron Worthing (e7d72e)

  80. We heard from Judge Walker’s decision in the Prop. 8 case that the defense mounted a weak effort, but on an examination of the trial record that turned out to be a complete distortion. Has anyone examined the record of this case to determine whether this judge is also pulling a fast one?

    daleyrocks (940075)

  81. daley, i feel the same caution you do. i don’t think anyone has.

    Aaron Worthing (e7d72e)

  82. “The first amendment doesn’t apply to military life. Seriously, do you really think you can speak freely in the military. The drill sergeant says “you are a worthless sack of puss” and you are free to refute him?”

    Sure, you can exercise your freedomn of speech and argue with the D.I., then you can exercise it some more at your court martial when you’re brought up on on an Article 91, and then you can further express your opinion when you’re out in the hot sun breaking rocks.

    I’d advise against it, though.

    Dave Surls (654c08)

  83. Aaron, Goldman tried to invoke the First Amendment to support an on-duty speech, in the form of a visual display in conflict with regulations on uniforms. No one suggested Goldman could not wear his yarmulke when off-duty, even in situations where it was plain he was in the military.

    The Log Cabin opinion aims at off-duty speech, in the forms of communications and attendances and assemblies, by those who are identifiably in the military even when off-duty.

    You can argue there should be no distinction between the two opinions based on the same principle, and someone else – me, for instance – can argue there IS a distinction between the two opinions based on the differing factual contexts.

    The majority in Goldman framed the issue in terms of deference for the military decision to enforce uniformity over the religious customs of not just orthodox Jewish personnel, but ALL personnel REGARDLESS of religious persuasion.

    I do not understand sexual orientation to be any sort of persuasion; I have trouble seeing how it could possibly be analogous to religious custom.

    I DO understand that a lot of people have trouble accepting the distinction. However, Dick Cheney certainly understands it. Sure, Cheney might well defer on the ground that there is no scope whatsoever for judicial review of military infringements on the First Amendment, which would not surprise me in the least. But that is not Goldman; the majority in Goldman recognized there is such scope, and framed it — and, regardless whether you accept the judge in Log Cabin being genuine how she applied that scope, she did in fact apply it.

    So, I have no problem with Goldman and this opinion both standing.

    shooter (32dc25)

  84. The first amendment doesn’t apply to military life. Seriously, do you really think you can speak freely in the military.

    Aaron: no, I don’t think you can speak freely in the military.

    But: the Constitution doesn’t say that the first amendment doesn’t apply to the military.

    So: where does that limitation come from, as a matter of law?

    aphrael (e0cdc9)

  85. You also have no problem pulling things from your nether regions.

    JD (ffe6ea)

  86. There’s no explicit exemption of free speech to death threats of libel or wikileaks spying, either.

    Right. “freedom of speech” is defined as not applying to these things – eg, the freedom protected by the first amendment doesn’t encompass them.

    You could construct a similar argument that the freedom of speech protected by the first amendment doesn’t protect off-duty private speech by soldiers, regarding non-military matters.

    But I’m not convinced that the people who wrote the first amendment, or the people who ran the Continental Army, would agree with that proposition.

    And so: where does the idea come from? What gives it the force of law?

    aphrael (e0cdc9)

  87. on an examination of the trial record that turned out to be a complete distortion

    No, it really wasn’t complete distortion. The defense presented two witnesses, both of whom were terrible, and then attempted to argue that they don’t need to prove the existence of a rational (or compelling) basis because history and precedent are all on their side.

    It was as close to a default as they could get while actually showing up.

    aphrael (e0cdc9)

  88. That was directed to shooter, not aphrael.

    I do know this, letting judges, or people that think like shooter, determine what the military should do strikes me as a bad idea.

    JD (a30317)

  89. Note that a great deal of my insistence about the first amendment comes as a response to this claim:

    The judge needs to read the Cnnstitutinn. ARticle I, Secion 8 gives Congress the power to raise armies and to establsh the rules for their conduct.

    The grants of power in Article I are all subject to restriction by limitations on Congressional power adopted after the grant was issued. There’s no exemption for the grant of power to establish rules for the conduct of the armies; those rules must be consistent with restrictions on Congressional power written into the Constitution after the grant.

    aphrael (e0cdc9)

  90. I wish we could apply the Walker standard to BarckyCare.

    JD (ffe6ea)

  91. JD: you may get that wish. The cases have been filed.

    That said, it seems unlikely that the Obama administration will throw that case, the way it appears to have thrown this case.

    aphrael (e0cdc9)

  92. Aphrael – the intentional throwing of these cases should bother anyone, regardless of where you are on the issue.

    By the Walker standard, since BarckyCare is increasing costs and people do not get to keep their insurance the way Barcky promised, that should be tossed out post haste.

    JD (6ca166)

  93. “The grants of power in Article I are all subject to restriction by limitations on Congressional power adopted after the grant was issued. There’s no exemption for the grant of power to establish rules for the conduct of the armies; those rules must be consistent with restrictions on Congressional power written into the Constitution after the grant.”

    You can employ that argument if you want to. You can extend all kinds of freedom to folks in the military using that perfectly good argument.

    I wouldn’t plan on winning any wars though.

    ‘Cause you ain’t going to win if you start having a military where troops are free to do as they please.

    Dave Surls (564d7d)

  94. “No, it really wasn’t complete distortion.”

    aphrael – That may be your view, but is certainly not the view of many others. Walker brushed off the precedents presented by the defense as well es the experts cited in the precedents. I was under the impression that citing precedents in support of your position constituted mounting a defense. Apparently by ignoring them Walker was able to rationalize that no defense was presented. Am I wrong?

    daleyrocks (940075)

  95. Dave – no offense, but you’re not providing a legal argument here. You’re providing an “I know I’m right because it’s necessary that it be this way” argument.

    I don’t see anywhere in the text of the Constitution that the grant of power to regulate the army is to be treated any differently than any other grant of power listed in Article I, Section 8.

    So: why, as a matter of law, should it be? What’s the basis for it?

    aphrael (e0cdc9)

  96. Daleyrocks:

    rather than present evidence that the state’s position was either (a) rationally related to a legitimate state objective or (b) narrowly targeted to meet a compelling state interest, the intervenors argued that they didn’t need to provide that evidence.

    A more robust defense would have both argued that they didn’t need to provide it and provided it.

    Judge Walker’s ruling was, more or less: you’re wrong on the question of whether you have to present any evidence, and you didn’t present any, so you lose.

    It’s never wise to fail to hedge your bets. Sometimes you can’t avoid it.

    aphrael (e0cdc9)

  97. “I know I’m right because it’s necessary that it be this way” argument.

    But that is actually a legal argument. As I said above, certain extreme (and even not so extreme) interests can override civil rights. It’s always been that way.

    He’s pegged it. The Bill of Rights is not a suicide pact. Even if it contradicts the letter of the document. I don’t think the ratifiers saw it any differently, either. It’s possible to take this logical point to extremes, but this is the reason we have judges and have to work to determine what the law really is. It’s such a huge responsibility to wield this interpretation of limits without pushing a political agenda.

    Dustin (b54cdc)

  98. I don’t see anywhere in the text of the Constitution that the grant of power to regulate the army is to be treated any differently than any other grant of power listed in Article I, Section 8.

    I don’t see anywhere in the Constitution where it talks of “a legitimate state objective”, or “a compelling state interest”, or the need for government actions to be “rational” in the opinion of a judge. All of these things are extra-constitutional provisions created by judges in order to encroach on the power of the other branches of government.

    Subotai (31c20b)

  99. Subotai: sure. all of those phrases were invented as part of an attempt to interpret “equal protection of the laws”, a clause which is astonishingly difficult to interpret.

    (Does a progressive income tax deny people equal protection of the laws? How about the crack/powder cocaine disparity? Or laws making it illegal for non-lawyers to practice law? Or non-doctors to practice medicine?)

    I don’t think anyone is denying that these were made up by judges; I think the entirety of the dispute is between those who think they were made up as part of a good-faith effort to understand what an ambiguous provision means and those who think they were made up in order to encroach on the power of other branches of government.

    aphrael (e0cdc9)

  100. The grants of power in Article I are all subject to restriction by limitations on Congressional power adopted after the grant was issued. There’s no exemption for the grant of power to establish rules for the conduct of the armies; those rules must be consistent with restrictions on Congressional power written into the Constitution after the grant.

    Great. Now all you have to do is show that, after Article I was written, a further limitation was enacted on Congressional power which prevents it from banning homosexuals from openly serving in the military.

    Subotai (31c20b)

  101. Subotai: I don’t think you’re following the thread. :)

    The decision handed down yesterday has two different components, which in oversimplified form are:

    (a) the ban on homosexuals serving in the military violates the ‘right to intimate association’ which Lawrence holds is inherent in due process.

    (b) the ban on telling in DADT violates the first amendment.

    I’m ignoring (a) for the moment; everything I’ve said in this thread has been about (b).

    A system which allows gay people to serve as long as they don’t write letters in foreign languages to friends of theirs admitting that they are gay, but which dismisses them when they do, in effect punishes people for the speech contained within such letters.

    If the right to free speech includes such ‘speech’, then the Constitution prohibits the ban, because the First Amendment was adopted after Article I Section 8.

    Now, we can have a debate about whether the right to free speech includes private letters written by off-duty soldiers. I think it clearly does; I suspect others will disagree. But I think that both sides of that argument are within the realm of reason, whereas the argument that Article I, Section 8 is somehow implicitly exempt from the limitations imposed by the bill of rights is, I think, unreasonable – because there’s no textual justification for it whatsoever.

    aphrael (e0cdc9)

  102. Aphrael – you give up a lot more than just your 1st Amendment Rights when you join the military.

    JD (f9a94f)

  103. does the fourteenth amendment prohibit Congress from racially segregating the military?

    No. The 14th Amdt applies only to the states. It also says nothing about segregation. Lastly, and not that anyone cares, it was never lawfully ratified.

    If not, then why doesn’t the first amendment prohibit Congress from restricting speech of soldiers?

    Very different issue, as the 1st says that “Congress shall make no law ..”

    Subotai (31c20b)

  104. JD: I’m not denying that. I’m asking for the legal justification for it. :)

    aphrael (e0cdc9)

  105. The 14th Amdt applies only to the states.

    That’s a fair point.

    The textual literalist in me is uncomfortable with the way this got incorporated into the 5th amendment, even though the political idealist in me approves and the political pragmatist in me thinks the outcome is preferable to the alternatives.

    It also says nothing about segregation

    Also true, although I think it’s been pretty firmly established that seperate-but-equal was never, in fact, equal.

    aphrael (e0cdc9)

  106. I’m anti DADT, but some of you are being ridiculous. You sign a contract to be in the military. How is this different from any number of private sector arrangements? And the thing about everyone having a right to join, I can’t wrap my head around that. How in the hell would that ever work in practice?

    el duderino (fedc3d)

  107. Subotai: I don’t think you’re following the thread.

    Fair enough, I have not read every comment.

    the ban on homosexuals serving in the military violates the ‘right to intimate association’ which Lawrence holds is inherent in due process.

    Great. But I’m pointing out that Lawrence has no Constitutional basis whatsoever.

    the ban on telling in DADT violates the first amendment.

    That’s an interesting argument. Taken seriously, it will make the military unworkable. All mail from service members in a war zone to family at home is often censored – is the judge here going to strike down this practice as well?

    In fact, I suspect the answer there is “No”, because judges are not remotely interested in applying rules consistently but in protecting “classes” of people. So let’s be realistic, no judge will really rule that everyone in the military has full free speech rights.

    You will note that among the vast number of judge-created judicial concepts which make a mockery of the Constitution, that of “classes” takes pride of place.

    Subotai (31c20b)

  108. Thank you, Michael E.

    (1) _Goldman_ dealt with behavior *while on duty*. DADT, as applied in the two cases I quoted above, dealt with behavior while off-duty. They aren’t analagous; a closer analog would be a military rule prohibiting a soldier from telling anyone he is Jewish.

    (2) CJ Rehnquist’s opinion doesn’t actually answer the question. It asserts “The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state”, but it doesn’t argue from first principles; it refers back to _chappell_ and _Parker_.

    _Parker_ does not say that the First Amendment doesn’t apply to soldiers; it says that the particular rule in question was not vague. Chappell doesn’t mention the first amendment at all; it says that Congress was granted plenary authority over the military, and never even looks at the question as to whether that authority was constrained by subsequent amendments. (The case was, in any event, about the kind of *remedy* available for violations of constitutional rights by military personnel, and explicitly held “Chief Justice Warren had occasion to note that “our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” E. Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962). This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”)

    aphrael (e0cdc9)

  109. Subotai – I think you can base Lawrence on the 9th amendment quite nicely, actually. But that’s a discussion for some other time.

    Taken seriously, it will make the military unworkable.

    Quite possibly. Although the mail-from-service-members-in-a-warzone issue could be resolved via other means. But leaving that aside, ISTM that there’s a serious legal problem here which requires a serious argument rather than hand-waving.

    Article I, Section 8 was limited by the First Amendment. A District Court is applying that to the military. Almost everyone – me included – thinks there’s a potential for serious problems as a result. So: what arguments can we muster in response that can limit the damage?

    There are already categories of ‘speech’ which aren’t constitutional ‘speech’ – see, eg, obscenity. I don’t think it’s right to say that all private speech by soldiers falls into that category. But clearly some private speech has to, for legitimate security reasons.

    So where’s the line?

    aphrael (e0cdc9)

  110. You sign a contract to be in the military

    You sign a contract to be a federal employee, too. But while both entail giving up certain rights, they do not entail giving up all rights.

    aphrael (e0cdc9)

  111. “A more robust defense would have both argued that they didn’t need to provide it and provided it.

    Judge Walker’s ruling was, more or less: you’re wrong on the question of whether you have to present any evidence, and you didn’t present any, so you lose.”

    aphrael – You are entitled to your views of Judge Walker’s opinion. I have a different view of appellate courts entering into basic broad fact finding missions. You also have a different view of whether legal precedent should be binding.

    Various critiques of Walker’s decision were presented on this blog. I believe it was deceptively written and misrepresented the process. This is not the thread to rehash those critiques.

    I was raising the issue merely because the initial descriptions of Walker’s decision were so one sided. I was wondering if we were seeing the same phenomenon in this case.

    daleyrocks (940075)

  112. Daley: I should note that I’ve actually read the entire trial transcript, and I’m basing my opinion on my sense of what duty the lawyer owes to the client: even if the lawyers were convinced that they were right that they had no duty to provide evidence on the issue of the connection between the state’s objectives and the state’s means, it was foolish of them not to.

    aphrael (e0cdc9)

  113. The textual literalist in me is uncomfortable with the way this got incorporated into the 5th amendment, even though the political idealist in me approves and the political pragmatist in me thinks the outcome is preferable to the alternatives.

    You mean the alternative that the Constitution is altered by the people and their elected representatives rather than by judges?

    I was discussing abortion with a liberal once. Reasonable fellow, he agreed that the current state of judge-made law on abortion was unacceptable. That is, he agreed that modern medicine had made it clear that allowing abortion through all nine months of pregnancy, or even through the first six months, was barbaric.

    I thought “Yes!. Finally a breakthrough!” Now he agreed that Roe and its followers must be overturned, Right?

    In fact, what he wanted was for the courts to go back and update their law in the light of those recent medical discoveries. He remained dead set against Roe being stricken from the books. Why was that?

    That’s when I had the epiphany. The big divisive question between right and left is not really about abortion, or tax rates, or immigration, or health care. It’s about who decides. And the absolutely vital thing for folks on the left, indeed the defining issue which makes them on the left in the first place, is the conviction that this question should ultimately be answered with “The Courts” and not “The People”.

    And so my lefty friend was quite willing to accept that what he regarded as murder would continue for a while, because in his mind that was a preferable future to one in which the law was not made by the court.

    Subotai (31c20b)

  114. the alternative that the Constitution is altered by the people and their elected representatives rather than by judges?

    the alternative that the federal government is allowed to openly discriminate based on race while the state governments are not.

    in this particular case, i’m outcome-determinative rather than process-determinative.

    but it’s a narrow thing: i really don’t understand the argument under which the equal protection clause was read into due process in the 5th amendment, I think it was clearly wrong as a matter of interpretation of law … and I think that it’s not a battle worth fighting.

    aphrael (e0cdc9)

  115. I think you can base Lawrence on the 9th amendment quite nicely, actually. But that’s a discussion for some other time.

    Then you should not bring it up now. :)

    Your position would make more sense if the Ninth continued with ” It will be the job of the courts to enmumerate for the people what those rights are”. But of course its purpose was to limit power of government. In your telling it becomes a blank check for the government to write whatever it likes. Hey, maybe among those unenumerated rights is the right to socialized health care!

    Subotai (31c20b)

  116. Then you should not bring it up now

    Just as you should drop Lawrence and focus on the first amendment argument. 😛

    aphrael (e0cdc9)

  117. “Dave – no offense, but you’re not providing a legal argument here. You’re providing an “I know I’m right because it’s necessary that it be this way” argument…”

    Yeah, I’m pretty much aware of what it is I’m arguing.

    If it’s achoice between following the law and doing what makes sense, I’ll go with doing what makes sense.

    Dave Surls (b73d31)

  118. the alternative that the federal government is allowed to openly discriminate based on race while the state governments are not.

    in this particular case, i’m outcome-determinative rather than process-determinative.

    At least you’re honest. You want whatever system gives you the outcomes you favor. And if that means doing an end-run around those cumbersome processes the writers of the Constitution came up with, so be it.

    Subotai (31c20b)

  119. Subotai: this decision (that the 5th amendment incoroporates equal protection) was made by the Supreme Court well before I was born.

    I’m saying that: it costs more to fix minor wrongs than it does to leave them be. This is one of those cases.

    aphrael (e0cdc9)

  120. you should drop Lawrence and focus on the first amendment argument

    The thread is about DADT and the court ruling on it, not merely the First Amendment part of it. You can confine your remarks to the First Amendment issues if you like, but the scope of the topic is broader than that.

    Subotai (31c20b)

  121. It’s one thing to argue that a trial judge is being disingenuous in dismissing defense evidence as valueless where the defense actually called evidence; it’s quite another to argue that a trial judge is being disingenuous in pointing out the defense called no evidence where the defense in fact called no evidence.

    Really, it’s quite pointless to try and lift any point taken from the Prop 8 case and carry it over into this Log Cabin case. The relevant contexts were completely different, and even the provisions of the Constitution were different. There wasn’t even a strictly comparable status being sought by the plaintiffs: same-sex marriage isn’t strictly about sexual orientation, it’s about sexual preference; and being gay isn’t a matter of preference, it’s a matter of orientation.

    The one commonality is that both cases had Republicans in important positions on the winning side(in Prop 8, one of two lead counsel for the Plaintiffs and the judge; in Log Cabin, the plaintiffs). Republicans WON both cases.

    shooter (32dc25)

  122. Has anyone examined the record of this case to determine whether this judge is also pulling a fast one?

    I do not know what case the government could have presented as to the factual record. There did not seem to be any evidence at all that would dispute the notion the plaintiffs were discharged for reasons other than sexual orientation.

    As for the legal issues, it is a lot closer, as there is no binding U.S. Supreme Court precedent. While the Ninth Circuit upheld DADT in Holmes v. California Army National Guard, 155 F.3d 1049 and Philips v. Perry, 106 F.3d 1420 , it did order the reinstatement of a person discharged solely because of homosexual orientation (as opposed to conduct). (Meinhold v. United States Department of Defense, 34 F.3d 1469)

    Goldman is relevant, and would certainly control in cases where a serviceman reveals a homosexual orientation to other servicemen up or down the chain of command, or even servicemen in general. But DADT goes beyond that, forbidding servicemen from revealing a homosexual orientation under almost any circumstance. By contrast, the regulation at issue in Goldman only forbade the wearing of a yarmulke as part of the uniform; it did not forbid wearing yarmulkes off duty or in other circumstances where wearing civilian clothing was permitted.

    In this same token, a facial challenge must fail. If nothing else, DADT, as applied to cases involving homosexual conduct up and down the chain of command, is constitutional.

    Michael Ejercito (249c90)

  123. “Daley: I should note that I’ve actually read the entire trial transcript”

    aphrael – I know you did and appreciate that. I also felt you presented a one-sided summary of the case based on the commentary of people such as Ed Whelan who I believe have somewhat more experience. Patterico presented Whelan’s critique of the case.

    We are going to have to agree to disagree on Walker’s process and content of his opinion. This thread, as I mentioned earlier, is not the place for further debate on it.

    daleyrocks (940075)

  124. “Really, it’s quite pointless to try and lift any point taken from the Prop 8 case and carry it over into this Log Cabin case.”

    shooter – Who is doing that?

    daleyrocks (940075)

  125. being gay isn’t a matter of preference, it’s a matter of orientation.

    Is this some legal principle?

    Gerald A (2b94cf)

  126. Shooter

    > No one suggested Goldman could not wear his yarmulke when off-duty, even in situations where it was plain he was in the military.

    An orthodox jew is always subject to God’s commandments as they read them. They are supposed to always keep their head covered. He was being ordered to disobey God as he understood His command to be. And this after years of military service without any problem, suddenly someone got a bug up their a– about the whole thing.

    And it doesn’t matter. My point is that this policy used against Goldman has ALL of the drawbacks that DADT had, but it was upheld. That is why Goldman controls and it means that DADT should have been upheld.

    > I do not understand sexual orientation to be any sort of persuasion; I have trouble seeing how it could possibly be analogous to religious custom.

    I find that remarkable. Freedom of religion is ACTUALLY in the constitution. The right to have gay sex is not. But you would treat the right to have gay sex as more protected than an explicitly protected right.

    > However, Dick Cheney

    Which proves what?

    Aph

    > So: where does that limitation come from, as a matter of law?

    GOLDMAN. Go to my site. There is a link to the case.

    > No, it really wasn’t complete distortion.

    What it was, was weaselish misdirection. He made it sound like they presented no evidence, just like Bill Clinton made it sound like he did nothing with Monica.

    [By the way, I always liked the commentary of Scott Thompson, the flamboyantly gay comedian, on the Lewinsky mess. He said, “according to Clinton’s definition of sex, I am technically a virgin.”]

    JD

    > the intentional throwing of these cases should bother anyone, regardless of where you are on the issue.

    Exactly. Congress passed the law, but apparently no one showed up to defend it. So years after it became to law of the land, a few plaintiffs lawyers and the obama administration exercised an effective veto over it. Hate to drag this issue back into things, but I think it is another case where legislative standing needs to be conferred.

    That is, assuming the judge is telling the truth.

    Sub

    > It also says nothing about segregation.

    You bet your ass it does. Segregation is discrimination. End of story.

    > Lastly, and not that anyone cares, it was never lawfully ratified.

    Oh, for God’s sake, yes it was. The south didn’t like it, but tough on them. They still could have said no.

    > Very different issue, as the 1st says that “Congress shall make no law ..”

    Actually there is a law involved here. DADT is a law, not merely an executive policy. That is precisely why Barky tanked the case, so he could get out from under that law.

    Aaron Worthing (f97997)

  127. You sign a contract to be a federal employee, too. But while both entail giving up certain rights, they do not entail giving up all rights.

    Right, because no one would sign such a thing. What’s your point?

    el duderino (fedc3d)

  128. Aaron Worthing @ 126:

    There are so many wrong turns in your long itemized comment, it would take an even longer response just to list each and articulate its wrongness. Now you have me interested in actually going to your blog and dealing with them all there.

    But I do want to raise one, a really fundamentally wrong view of a weird world view that, I think I have to concede, has probably caught fire and has a lot of support, and the one that equates to turning the Constitution into some sort of tract dictated by the Grand Supreme Flying Spaghetti Monster that dictated much if not all of the Old and New Testaments (but not the Koran or the Book of Mormon – no way).

    It’s the idea that if something isnt specifically provided for in the Constitution, it somehow isnt something the Constitution can be extended to protect. From all the other wrong things in your comment, this one really sticks out.

    Freedom of religion is ACTUALLY in the constitution. The right to have gay sex is not. But you would treat the right to have gay sex as more protected than an explicitly protected right.

    So what you arguing for here is a constitution that protects the expression of superstitious hoo-ha picked up from our ancestors like a particularly persistent case of intellectual herpes and never bothered to face up to as such and grow out of it the same way we grow out of believing in Santa Claus and the Tooth Fairy, yet cannot be read to accommodate an expression of natural orientation and behavior by a large minority of something on the order of 15 to 30 millions of us.

    That is, you would posit that, even if the survival of the nation depended on it, we could not ban or limit a religious practice of cutting off parts of peoples sexual organs — except, of course, if the affected people were employed in the military; while conversely, despite the absence of any evidence or even logical theory that it does the slightest harm whatsoever to the national interest, and does not achieve anything more than allow for irrational repression of a range of natural expression (indeed may actually have a negative impact on military readiness and so national security), we could not look to constitutional process to remedy that senselessly offensive, hurtful and destructive practice.

    That’s just silly. Your view is that this nation built on concepts written down several hundreds of years ago, when the state of human knowledge and technology was profoundly different and more impoverished than in these days, ought to defer to a pinched literal interpretation of it that preserves the intolerance of those days, like a brontosaurus* mounted in a museum, enforces it, and continues to institutionalize it, because it was written.

    How’s that materially different from some illiterate Arab commercial arbitrager 1500 years ago coming back from a desert retreat and dictating a bunch of hooey he claimed was told him by some disembodied desert spirit and expecting a fifth of the human population of the planet today to be bound by it, because it was written?

    (* With hundreds of thousands of subsequent discoveries and decades of study, the overwhelming consensus view in the paleontology community is that the mounted and other representations of it were based on confusing bones of different dinosaurs for being from one dinosaur, and that no such creature ever lived here, nor could have. This has not resulted in removal of any brontosaurus exhibits, many of which are now preserved as artifacts of how the investigative process advances beyond ignorance through errors and challenging them. Meanwhile, there has been a rise in what are styled as creationist museums, depicting dinosaurs saddled up with humans riding them.)

    shooter (32dc25)

  129. Oh, and the CEO of the Catholic cult just announced a new definition for sex that excludes blow jobs (along with anything Scott Thompson could possibly have participated in); straight to him from their Flying Spaghetti Monster, according to the tenets of the cult.

    shooter (32dc25)

  130. Shot himself in the ass while aiming for his head gushed:
    it’s quite pointless to try and lift any point taken from the Prop 8 case and carry it over into this Log Cabin case.
    — You’ve already been asked to state who did this; but, as our host has noted, you like to ignore factual challenges. Carry on.

    The relevant contexts were completely different, and even the provisions of the Constitution were different.
    — No shite, Sherlock.

    There wasn’t even a strictly comparable status being sought by the plaintiffs: same-sex marriage isn’t strictly about sexual orientation, it’s about sexual preference; and being gay isn’t a matter of preference, it’s a matter of orientation.
    — And it is necessary to announce one’s orientation WHY?

    The one commonality is that both cases had Republicans in important positions on the winning side(in Prop 8, one of two lead counsel for the Plaintiffs and the judge; in Log Cabin, the plaintiffs). Republicans WON both cases.
    — No, the “commonality” is that both cases were decided incorrectly.

    Icy Texan (ae08fe)

  131. Nothing like a little Xianist rant to start the day.

    JD (f89659)

  132. My last comment on this thread seems to have been swallowed. WTF?!

    Icy Texan (ae08fe)

  133. Shooter

    First, wow, its cute to see how quickly you become a bad cliché: a classic jerk atheist. Mind you, not all atheists are jerks. I suspect the nice ones are in the majority, but they are not attention whores like the jerk atheists. But I digress.

    Anyway, you start by denouncing a view…

    > that equates to turning the Constitution into some sort of tract dictated by the Grand Supreme Flying Spaghetti Monster that dictated much if not all of the Old and New Testaments (but not the Koran or the Book of Mormon – no way).

    But you do not have to assign any mysterious divine origin to the constitution. You can simply accept that this is the document governing how our government is run and that it should be read according to how you can say that the people who wrote it would have understood it. Indeed we do this all the time in contract law. There is nothing inherently religious about that. The irony, of course, is that in a moment YOU are going to assign the constitution supernatural powers.

    Which is not surprising. I have long said that there are two kinds of people who profess to be atheists. The first are people who just don’t believe. The second are people who are really, really mad at God for one reason or another. I am guessing you are in the later column. Most jerk atheists are. But I admit seeing a jerk atheist apply their jerk atheism to the constitution is a new one. So you get points for being a pioneer in jerkiness.

    Further, the amazing thing is that people like you are so blinded by your hate that you don’t realize how destructive it really is. Basically your argument to me is “agree with me, you idiot.” And indeed you admit that my supposedly stupid attitude actually enjoys broad support in the community. Just how persuasive do you think that is, then?

    > It’s the idea that if something isnt specifically provided for in the Constitution, it somehow isnt something the Constitution can be extended to protect.

    But how, my rational, secular friend, can the constitution extend to protect something that its authors didn’t want to protect, didn’t write words protecting, etc.? Of course there is a name for the theory. Its called “living constitutionalism.” And what could be more superstitious than to pretend that a piece of paper with words on it is alive? That somehow it changes according to the zeitgeist of the age?

    Either that, or you are a believer in the perfection of our robed masters on the Supreme Court. Which would make you an elitist and person who fundamentally does not believe in government by the people. And what could be more religious than to argue we should defer to the wisdom of a set of high priests?

    Moving on…

    > So what you arguing for here is a constitution that protects the expression of superstitious hoo-ha

    Close, but wrong. It also protects your right to be an atheist. Even a jerk atheist. Freedom of religion includes the right to believe in no religion at all. But according to you, we should not be bound to that view. So I guess you wouldn’t object if the Supreme Court decided tomorrow that the constitution not only does not tolerate atheism, but mandates that every atheist be rounded up and shot, right? I mean its just the magic living constitution changing its meaning on its own, right?

    Do you start to see how dangerous it is when you argue to deviate from a fair reading of what the constitution actually says?

    > yet cannot be read to accommodate an expression of natural orientation

    Yes, it can be. The constitution doesn’t REQUIRE anti-sodomy laws. It just ALLOWS them. So nothing in the constitution presents a bar to tolerance of homosexuality. And indeed, when talking about an amendment on the subject of gay marriage I have expressed a desire to have the amendment merely reserve the subject to the popular branches. I oppose the idea of a constitutional amendment that forces my children or grandchildren (should I be lucky enough to have either), to keep a definition of marriage they no longer ascribe to. I would only ask that they be allowed to choose for themselves what the law will say on the subject.

    But I admit what I just said there was a head fake, because I wanted to highlight how you can’t even talking about the issue in a straight fashion. You are not really talking about anything accommodating homosexuality. You are talking about your view of homosexuality being mandated by the high priests of the Supreme Court against the will of the people. That’s about as “accommodating” as force feeding a starving prisoner.

    Which begs the question, why are you arguing with me about it at all? I mean if the opinion of the great ignorant unwashed don’t mean a damn to you, then why are you so determined to prove anything to any of us?

    > That is, you would posit that, even if the survival of the nation depended on it, we could not ban or limit a religious practice of cutting off parts of peoples sexual organs

    When did I say that? I did not say freedom of religion meant you could engage in any practice you wanted. I believe I have said in this thread said that if Goldman worked for the local DMV instead of the military, that I would have said he should win. But there is a world of difference between saying a man can wear an odd hat on his head to saying a person can mutilate a little girl who is well below the age of any capacity to consent, in a manner that will affect her ability to *ahem* pursue happiness, for the rest of her life.

    Or did you decide that my words were alive too so they could say something that not only did I not say, but I contradicted?

    And notice that your literal words swept into its language another practice that couldn’t be banned. I knew you meant to talk about female circumcision, but what you described just as much applied to male circumcision, and no one could reasonably read the constitution as allowing the ban of that practice as mandated by the Jewish faith.

    Indeed, your language also didn’t include any age limitations. So if an adult woman or man, wanted to voluntarily subject themselves to it, apparently you would have them stopped, because somehow the “survival of the nation” depended on it. So much for the libertarian approach to the issue.

    Indeed, I am having trouble understanding how the survival of the nation would depend on banning even female circumcision. Mind you, its barbaric and backwards, but it doesn’t threaten the survival of the nation in any immediate way. The best explanation I can come up with is this. As Mark Steyn tells us in every 5th column, much of the free world is being depopulated and that could spell all kinds of disasters. So if a woman is circumcised, she will never be able to enjoy sex, or at least not nearly as much as a woman who is not mutilated. So then she will not want sex as much, and thus will probably have less sex, and thus have less children, contributing to that population decline.

    But if the concern for population decline can invade a person’s freedom even as an adult to do that sort of thing to themselves, then doesn’t that logically imply that we can also ban homosexuality? I mean you don’t have to believe that gay people can become straight, you only have to believe that they can fake it enough to have sex with someone of the opposite sex and produce children. One of the VPs of my company has done exactly that. She lived for a long time as a wife and mother and now is in a committed same sex relationship. Whether by social mores or fear of the law, she was persuaded to produce several children staving off the population decline. So if you feel that female circumcision can be banned because it will destroy this country, its kind of hard to argue that homosexuality cannot be banned on the exact same grounds.

    Well, either that or you just said something unbelievably stupid. Actually yeah, I am going with that one.

    > and does not achieve anything more than allow for irrational repression of a range of natural expression

    Faulty premise. I am not sure that it is so clearly wrong. For instance, the judge complains that DADT harms recruitment. But what if having openly serving gay people hurts it even more? Yeah, yeah, those people who would refuse to serve with a gay person are surely more of those horrible, stupid backwards people in your mind, but numbers are numbers, aren’t they?

    But the more important thing is I wouldn’t be so foolish to “constitutionalize” what I consider the best policies in this area. The military, as commanded by the civilians who are ultimate in charge, should be flexible enough to adapt. I mean today we have our president telling that Koran-burning pastor not to do it (and allegedly it has been called off again) because it will whip up anti-americanism. Hey, you know what else whips up anti-americanism? What the islamofascists consider to be the depravity of our culture.

    > That’s just silly. Your view is that this nation built on concepts written down several hundreds of years ago, when the state of human knowledge and technology was profoundly different and more impoverished than in these days, ought to defer to a pinched literal interpretation of it that preserves the intolerance of those days, like a brontosaurus* mounted in a museum, enforces it, and continues to institutionalize it, because it was written

    Again, you are confused between something being allowed and something being mandated. DADT is legal under the constitution. Just as it was legal to tell Goldman he couldn’t wear his yarmulke. And you know what happened to Goldman? It is my understanding that congress stepped in and changed the rules so he could have his yarmulke. And if your liberal congress grows a pair, they could do the same for homosexuals.

    The constitution allows for DADT. It doesn’t require it.

    And indeed the “we shouldn’t be ruled by them” argument is a great argument for disregarding the constitution and going to straight absolute majority rule. It doesn’t suddenly become an argument that instead of deferring to the constitution, we should defer to the will of 9 unelected justices. And, by the way, have already set a precedent that pretty much cuts the legs out from your entire argument in the Goldman case. So I suppose you don’t believe that our robed masters even have to be particularly consistent. Interesting.

    > Oh, and the CEO of the Catholic cult just announced a new definition for sex that excludes [BJ’s]

    First, really, you need to cut down on the level of insult if only for clarity’s sake. Say “pope” if you mean pope, at least once, so we don’t have to try to decode what you are trying to say. Then maybe the second time you refer to him, call him a CEO or something like that. I mean I am sure you think you are frightfully clever but in fact calling him a CEO is neither insightful or clever and only serves to obscure rather than illuminate your point.

    Second, as a Presbyterian I could give a rat’s A$$ what the pope says.

    Third, do you really think I trust you to interpret what he said correctly? Maybe like the ink of the constitution, you imbue his words with the magic ability to change meaning on its own.

    > With hundreds of thousands of subsequent discoveries and decades of study, the overwhelming consensus view in the paleontology community is that the mounted and other representations of it were based on confusing bones of different dinosaurs for being from one dinosaur, and that no such creature ever lived here, nor could have. This has not resulted in removal of any brontosaurus exhibits, many of which are now preserved as artifacts of how the investigative process advances beyond ignorance through errors and challenging them

    You know what the really hilarious thing is that metaphor is? It actually cuts against you.

    It’ll take a moment to explain.

    Okay so this is what you are saying. Several million years ago there were two different species. One was a big plant eater. The other was a carnivore. They both died, possibly themselves separated by millions of years, and for one reason or another, in both cases the heads were separated from their bodies, either at death or later on. So then some scientist comes along, discovers the head and the headless skeleton, and decides that the head of the carnivore belonged on the head of the herbivore and called it the brontosaurus (this was all mixed up in an idiotic rivalry between Yale and Harvard, fwiw).

    Okay so then later other scientists said, “this is not the original skeleton. Let us restore the original skeleton.” And you seem to approve, right? So when it comes to dinosaur bones, you are an ORIGINALIST, right? You want to original restored, and to correct any misinterpretations of the fossil evidence, right?

    But when it comes to the constitution, you want to do the opposite. You want to chop off one part (the first amendment’s guarantee of freedom of religion) and put another part that was not part of it (the alleged right to engage in gay sex) into that “skeleton” where it didn’t belong.

    Heh.

    Aaron Worthing (f97997)

  134. An orthodox jew is always subject to God’s commandments as they read them. They are supposed to always keep their head covered. He was being ordered to disobey God as he understood His command to be. And this after years of military service without any problem, suddenly someone got a bug up their a– about the whole thing.

    Military uniforms include covers.

    Michael Ejercito (249c90)

  135. michael

    relying on memory, my understanding is at the time he was told he could not wear anything on his head indoors. he wanted merely to wear his yarmulke. I believe out of doors he could wear a helmet, which actually sufficies. The yarmulke is preferred, but any hat will do or so i understand. Of course i am not jewish, let alone orthodox, so i could be wrong. But that is my understanding.

    Honestly i think some of what they do is a little insane. the no electricity on friday rule, for instance, seems bizarre (and yes, i know i am glossing over some of the nuances there). But I also say that almost every faith sounds ridiculous to non-adherants, including my own.

    Aaron Worthing (f97997)

  136. Icy T @ 130: See 111. Also 124, when he figures (correctly) who I was referring to.

    shooter (32dc25)

  137. And, by the way, have already set a precedent that pretty much cuts the legs out from your entire argument in the Goldman case.

    In Goldman, the regulation at issue did not forbid the wearing of the yarmulke while off duty or when otherwise authorized to wear civilian clothing. This is something to consider when applying the Goldman framework to this case.

    Michael Ejercito (249c90)

  138. Mike

    I think the off duty issue is a difference without distinction. It is simply unrealistic to pretend the rabbi could take off his coverings while on duty without violating his faith.

    Aaron Worthing (f97997)


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