Tuesday, October 19, 2010

Another happy moment in our nation's history

Updated Actually, probably not. But enjoy it for now.

At the top, I have to say that my only interest in Don't Ask, Don't Tell is the philosophical one of how it relates to equal rights. I have absolutely no interest in seeing more gays and lesbians in the military because I have no interest in seeing more people of any sort in the military. I do, however, have an interest in equal treatment, equal justice, equal rights. With that in mind, onward.

As you surely know, back on September 9, US District Judge Virginia Phillips found DADT to be unconstitutional. On October 12, she issued an injunction barring the military from enforcing the ban on homosexuals in the armed forces. The Obama administration reacted by requesting that she stay her injunction pending appeal.

You know all that. This is the new part:
A federal judge said Monday she is learning toward denying a government request to delay her order halting the military from enforcing its ban on openly gay troops. ...

"My tentative ruling is to deny the application for a stay," Phillips said at the start of the hearing.

Phillips said the government has not proven that her order would harm troops or in any way impede efforts to implement new regulations for the military to deal with openly gay service members.
Phillips also called the government's request for a stay "untimely" because the DOJ had over a month to file briefs relative to a possible injunction before she issued it.

The government threw the "Don't you know we're at war?" argument at her, claiming that the "abrupt change" would damage troop morale. Phillips, happily (and reasonably) was having none of it. Nor was she impressed with the "It's so complicated, we don't have enough time" sniffling. Richard Socarides, a former Clinton White House adviser on gay rights, said Phillips "seems to have lost her patience with the government's position" and expects she will not grant the stay.

One thing unspoken but which might figure in her thinking is that if she does issue the stay, the White House and the Pentagon would have reason to drag things out to force events into their own schedule, which involves changing the policy let's be polite and call it gradually. If she refuses, the question will be put to them immediately and they will have to move on the matter, promoting a more rapid resolution.

If she does refuse to stay her injunction, the DOJ will surely appeal.
Experts say [government lawyers] will likely find friendlier venues in the U.S. Court of Appeals for the 9th Circuit in San Francisco and, ultimately, the U.S. Supreme Court.

"The farther the decision gets from the presentation of evidence in the trial court, the more likely it is that courts will assume the military must have some critically important interest at stake," said Diane Mazur, a law professor who opposes the policy.
Note the important word in there: assume. Phillips said that the government presented no evidence at trial and nothing at the hearing to show her order would cause irreparable harm to troops, military readiness, recruitment, or any of the rest of the malarky. The government is counting on higher courts to simply assume such harm based solely on the government's assertion, without the need for evidence. And they will probably get their way: Socarides said the DOJ "will probably go to the appellate court or Supreme Court and you'll see in a couple of days that this order has been stayed."

Which why I said "enjoy it for now." Be prepared to be disappointed in the short run. But the day will come. Yes, this is about the military and I do think we spend too much time getting rapturous about things military. But this is also about justice. And advancing justice is always a good thing.

Updated with a Footnote: The DOD has instructed military recruiters to accept openly gay applicants. Those recruiters are also to tell those applicants that they would be subject to dismissal from the military if DADT is upheld on appeal. Meanwhile, all discharge cases againt homosexuals have been frozen.

So much for the "it's so complicated" routine.

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