Army discharges gay soldiers

DaemonSeid · #1 03-13-2009, 01:56 PM

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 Jim Moran said he has requested monthly updates from the Pentagon on the impact of the policy until it is repealed.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

link

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

KSigkid · #2 03-13-2009, 03:21 PM

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.

KSig RC · #3 03-13-2009, 04:34 PM

Quote:

Originally Posted by KSigkid

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.

KSigkid · #4 03-13-2009, 04:36 PM

Quote:

Originally Posted by KSig RC

. . . 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...

UGAalum94 · #5 03-13-2009, 07:43 PM

Quote:

Originally Posted by KSigkid

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.

KSigkid · #6 03-13-2009, 08:06 PM

Quote:

Originally Posted by UGAalum94

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.

PeppyGPhiB · #7 03-13-2009, 08:22 PM

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

Thetagirl218 · #8 03-14-2009, 10:42 PM

Quote:

Originally Posted by PeppyGPhiB

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.

This is a very good point. Even though I personally don't agree with homosexuality, I am wary when the government says you can't do something because of your sexual preference. That is your own, private business.

knight_shadow · #9 03-14-2009, 12:41 PM

"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.

KSigkid · #10 03-14-2009, 01:09 PM

Quote:

Originally Posted by knight_shadow

"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.

deepimpact2 · #11 03-14-2009, 05:35 PM

Quote:

Originally Posted by knight_shadow

"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.

Exactly.

DrPhil · #12 03-14-2009, 11:51 PM

Thanks for approving of me. That means I can't be outcasted for my CHOICES.

So let's try to pretend that the law, religion, and morality do not intersect in most societies:

Based on the law, homosexuality is not against the law but certain "manifestations??" of homosexuality are against the law. That could translate to homosexuality as a form of deviance.

KSigkid · #13 03-14-2009, 11:52 PM

Quote:

Originally Posted by DrPhil

Thanks for approving of me. That means I can't be outcasted for my CHOICES.

So let's try to pretend that the law, religion, and morality do not intersect in most societies:

Based on the law, homosexuality is not against the law but certain "manifestations??" of homosexuality are against the law. That could translate to homosexuality as a form of deviance.

But what manifestations of homosexuality are against the law? I can't think of any off the top of my head that would specifically apply to homosexuals.

DrPhil · #14 03-14-2009, 11:54 PM

Quote:

Originally Posted by KSigkid

But what manifestations of homosexuality are against the law? I can't think of any off the top of my head that would specifically apply to homosexuals.

Would gay marriage apply? What about sodomy laws that people try to apply to homosexuals/say are in reference to homosexuality.

Please don't disapprove. *biting nails*

KSigkid · #15 03-14-2009, 11:59 PM

Quote:

Originally Posted by DrPhil

Would gay marriage apply? What about sodomy laws that people try to apply to homosexuals/say are in reference to homosexuality.

I think we're defining the issue in different ways. I'm thinking specifically of instances where homosexual behavior is illegal.

I don't see gay marriage as a manifestation of homosexuality that's against the law. In those states where gay marriage is illegal, a gay couple wouldn't be able to falsify a marriage, or falsely represent that they are married. It's a measure against homosexual marraige, but not against homosexuality itself. But, I may be looking at the issue too narrowly. I also don't mean to marginalize the effect that such laws have on gay couples.

As to anti-sodomy laws, the Supreme Court decision in Lawrence v. Texas invalidated all such laws in the US. So, if there are any laws like that, they're flying in the face of Supreme Court precedent.