Army discharges gay soldiers
 

WASHINGTON - The Army fired 11 soldiers in January for violating the military's policy that gay service members must keep their sexuality hidden, according to a Virginia congressman.

Democratic Rep. Jim Moran said he has requested monthly updates from the Pentagon on the impact of the policy until it is repealed. In a statement released on Thursday, Moran said the discharged soldiers included an intelligence collector, a military police officer, four infantry personnel, a health care specialist, a motor-transport operator and a water-treatment specialist.

"How many more good soldiers are we willing to lose due to a bad policy that makes us less safe and secure?" asked Moran, a member of the House panel that oversees military spending.


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If they decide to take a civil suit, do you think they will have a case?

I think it would be a tough road for them if they sought civil remedies. As best I can remember (I don't have time to research the issue now), the federal courts have been fairly deferential to the armed forces in these types of cases, even after the Lawrence decision regarding privacy. I think that only the 9th Circuit (obviously) has held the armed forces to something higher than the "rational basis" standard in these matters.

ETA: In other words, they're going to have to prove a heck of a lot to make their claim stand up in court.

. . . or sue in California and hope SCOTUS has better things to do.

Strategery, people - it works for lawyers too.

Absolutely...in saying that the 9th Circuit stands alone, I also meant that if they got it into a US District Court out west, all bets were off.

Forum shopping is usually part of the deal anyway...

But wouldn't it end up at the Supreme Court anyway? Can you see it not being appealed, unless the armed forces have had a big change of heart lately?

I see this as being one of the issues that will go away as one generation of leadership replaces another and that the policy itself will change. Until then, what could you point to at the federal level that the policy is unconstitutional?

I understand what you mean about the 9th circuit, but would the case really stop there? It might be fun to imagine the bigger cases that could keep the supreme court too busy.

It's no guarantee that the Supreme Court will even hear the case...appellant's lawyer may not file a cert petition, and the Court might not grant the petition if that happens. The Supreme Court reviews such a small number of cases (compared to the number of cert petitions, and the number of federal appellate cases) that it's always a better bet to assume that the Court won't end up reviewing a case.

As to whether it's Constitutional or not...it depends on how the appellate court frames the issue. Depending on the right involved, there are different standards by which the courts could view the issue in light of the Constitution, ranging in scrutiny from the rational basis standard to the strict scrutiny approach. Basically, it's a way of weighing the merits of the policy against any issues of Constitutional infringement. Depending on the standard used, the courts could find that the governmental interest is weighty enough to outweigh those Constitutional concerns.

In this case, I'd imagine it would be presented as some sort of equal protection argument.

I think it's time for this policy to be overturned. The Army is admitting convicted criminals and high school dropouts, for crying out loud. Yet they won't even enroll a gay college graduate fluent in Arabic. It's a joke that's hurting our military.

Jon Stewart had a guy on his show the other night talking about his book about this very subject: http://www.thedailyshow.com/video/in...athaniel-Frank

Really? You think the supreme court wouldn't take the case? I can see if they didn't file the petition, but honestly, they're going to pass on the case involving a high profile US armed forces policy? It's not that I doubt you, so much, just that what you're telling me is amazing in itself. I suppose I hadn't thought it about very critically, but it just seems like something that they'd almost have to handle.

Of necessity, they take a very, very small percentage of cases brought to them. By far, the most common reason for them to take a case is because of a split in the circuits -- some circuits ruling one way and others ruling differently -- so that resolution by the Supremes is called for. If there's not a split among the circuits (and it's not of Bush v Gore magnitude), it's quite believable that they wouldn't take it -- they very well might wait until more circuits had tackled and developed the issue to see if either a concensus or a split was emerging. (This is commonly referred to as allowing the issue to "perculate.")

I understand that they take a tiny percentage generally. It still surprises me that they would refuse to review a case about a high profile US armed forces policy encoded in federal law. It seems kind of huge simply because of the level the policy originates at.

I wouldn't expect them to be interested in say, individual discrimination cases against specific army commanders, but the fact that it's a federal law seems to me that they'd want to decide it. But I guess I'm assuming the case would be about the nature of the policy itself, rather than the specific cases.

What determines where a soldier would file the original suit?

Exactly, and from the limited research I've done, there doesn't appear to be much a circuit split on the issue, or at least not enough of one to convince the Court to take the matter. If another circuit or two followed the 9th, then it might be a different story.

When you look at the time it takes to review a case, argue a case (including submitting briefs and replies), and draft a decision, it's an immense amount of time for each case. So, not even getting into the Constitutional limitations, the Court is already pretty limited in the number of cases it can take. So while this may be an important federal issue, there are a bunch of other important federal issues that have other things (including circuit splits) working for their chances of getting before the Court. It takes four out of the nine justices to agree to grant cert.

The problem is that there are a bunch of these types of questions that come up every year, and while this particular issue might be the "sexiest" so to speak (no pun intended), there are other more burning federal issues that require the Court's attention.

As to where a soldier would file the original suit; there are federal rules of procedure that govern where the suit can be filed. It can be filed in federal court if there is diversity of parties (i.e. parties are from different states), or if there is a federal question at issue (i.e. an issue under the federal constitution). As for where to file geographically, that depends on the domicile of the parties, contacts with the state, etc.

That's kind of a quick and dirty explanation, but that's the general idea.

So what? Why is this news? The military has made its policy concerning homosexuality clear. They violated the rule. They were fired. That's what happens when you break the rules in your place of employment.

It's news because there's an ongoing debate on the armed forces policies in homosexuality, including "don't ask, don't tell." It's also news because people have debated the constitutional issues. It's a fairly controversial issue.

As much as I hate this rule, I have to agree with you. The rule is clearly outlined.

I haven't heard much about this issue recently, though. I hope the PTB will re-evaluate its effectiveness, considering the lack of people interested in enlisting.

But there's a big debate about the Constitutionality of the rule itself...so, whenever someone loses their position because of their sexual orientation, the larger issues will be discussed.

Regardless of how you feel about homosexuality, there's still an ongoing debate about the merits of the armed forces policy.

"Don't ask, don't tell" went into effect in the Clinton era, correct? I'd think that it would have been challenged by now.

It has in federal courts, but as noted above, a clear consensus hasn't emerged as to the Constitutionality.

I don't need a lecture. You missed my point.

Exactly.

This is true.

I'm against homosexuality. I'm one of those people who is in favor of the policy. I'm glad some entity in this country, which was allegedly founded on Christian principles, is taking some kind of stand against homosexuality. It may not be "much" but its better than nothing.

A lecture? I posted two sentences. Since when is that a lecture?

I know...thank goodness people are ready to take a stand against sexual orientation. Shame on people being born that way!

The bold part is still probably debatable although I tend to agree with you.

I think that there was a time when the policy made sense from a pragmatic point of view in terms of the homophobia of perhaps the majority of young men the military wanted to recruit. (I'm deliberately avoiding getting into the right of someone to serve and not be discriminated against, and what the military should be doing in terms of the minority group.)

But I think we're moving into a generation that has a lot fewer people who haven't already known and worked with homosexual people before they enlist. I think there will still have to be policies about soldiers dating each other, like those we have for heterosexuals already. But I don't think that homosexuals serving presents the same difficulties that it might once have. Basically, the armed services could get rid of the policy because they don't need the policy, and I kind of expect them to, rather than that they will be compelled to because of a lawsuit.

The problem is that pragmatism seems more like expedience on this issue, and expedience often leads to legal issues.

I was being sarcastic; I'm in the subset of people who think that sexual orientation is something you're born with, not something that's learned. I understand, though, that there are people who disagree with me.

I'm fairly liberal on social issues (i.e. gay marriage, gays in the military, etc.), but I don't see a whole lot of difficulties. There are women in the military now, so the dating issue is apparently not as big a deal.

But, I'm not bothered at all by people's sexual orientations, so that colors my opinion on the issue.

If you believe that, then you weren't being sarcastic.

I'm one of those people who believes that being gay is a choice. I also believe it is a sin. I know there are people who are born with both sexual organs, and they are often confused as to what sex they should be when making the decision to remove one organ. However, THAT is something that is medically proven. Scientists have yet to adequately prove that people are born gay.

Yeah, I think your opinions are pretty much the norm with the majority of people who will be recruited to be on active duty today, which is why I think the policy issue will resolve itself pretty soon.

Women still can't serve in combat roles, as far as I know, so it that may be an imperfect analogy, but I think the policies that apply for relationships could certainly address same sex relationship as well.

There may certainly still be a strong bias in the high ranks against openly homosexual soldiers serving, but as the next generation moves up. . .

The sarcasm was present in my mock indignation. I thought that was obvious, but apparently not.

On the topic of scientific proof, there are some people for whom there will never be enough scientific proof, because of their fervent religious beliefs. I would venture to guess that you are one of those people.

On the issue of the army policy itself; there's still a chance that it will be examined by SCOTUS, but my assumption is that at least one other circuit will have to follow the 9th Circuit in its heightened scrutiny approach.

I'm trying to remember...are you the one that is in law school?

And I really hope that women aren't trying to have this changed.

For the last ten-fifteen years, it may have just been expedience, but I think there really was a time, pre-Stonewall certainly, when allowing openly gay soldiers would have created all kind of morale issues and might have actually jeopardized the ability to recruit when there wasn't a draft.
I recognize the limits of making this point. I certainly don't think racially segregated units should have been justified and continued to be justified because of the racism of soldiers they wanted to recruit.

But I think we all recognize that there's a limit to how forward thinking the military can honestly be expected to be.
Should we have expected them to be out in front of society at large when it can to gay rights? Certainly, they don't need to continue to lag behind, but it's not an area where we ought to have put social policy ahead of military effectiveness if you ask me.

(ETA: I realize my pre-Stonewall to last 10-15 years in the first paragraph leaves a big gap for action. My point is when would you have said that accepting homosexuality in co-workers became the norm?)


Now, the time seems right. If not now, within ten years.

I believe the "official" rationale behind keeping women out of combat zones is more closely related to the physical differences between men and women, and not any sexual or relationship rationale.

Probably. I don't know. My point is only that we haven't hit 100% in dealing with sex and gender for heterosexuals without throwing orientation into the mix. ETA: I wouldn't point to allowing women to serve as evidence that orientation is less of an issue.

Yeah, I was agreeing with you - orientation is completely a separate issue from gender, because there are actual legitimate physical limitations that just make the comparison fail.

See, I get that this is sarcasm!

[QUOTE=KSigkid;1790371]See, I get that this is sarcasm![/QUOTE
No it really was not sarcasm. I really don't remember.

[QUOTE=deepimpact2;1790380]In that case, yes, I'm a law student. Almost done, thankfully.

Yeah, but I'm sorry it's such a crappy job market. I was thinking today how awful it will be for folks graduating in almost any field.

Do you already have something lined up?

[QUOTE=UGAalum94;1790383]It is a nasty market out there. I'm probably going to be done in December, a semester early. I have a bunch of friends who either latched on with firms that shut down, or were summer associates at firms that had hiring freezes.

As far as my having a job...I really like what I'm doing now, but it's unclear at this point whether I'd have a job there after graduation. I've done pretty well in school and have some solid extracurriculars, so we'll see.

When you posted earlier, I was thinking you meant you'd be out this May. Things really could be on the rebound by December. And you're apparently doing all you can to make yourself marketable.

Good luck!

Thanks! Part of me wishes I was done in May; I'm not looking forward to a summer and fall full of school stuff, especially when I'm already doing attorney stuff (appearing in court, etc.). Hopefully you're correct and things are better in the law firm market by the fall/winter.