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 Jim Moran said he has requested monthly updates from the Pentagon on the impact of the policy until it is repealed.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.