Appearing on Meet The Press Sunday, Press Secretary Robert Gibbs talked about the Obama administration’s hopes and dreams that Congress will repeal Don’t Ask Don’t Tell. But what if the Senate can’t get a repeal through? Doesn’t matter! DADT “will end under this president,” insists Gibbs. Which is probably true, because that leaves open the possibility it’ll end through the courts. Meanwhile, asked again if President Obama believes DADT to be unconstitutional, Gibbs avoided a direct answer, saying again — and repeating Obama’s own language — that the commander-in-chief believes it only to be “discriminatory” and “unjust.” If Obama did believe the law was unconstitutional, he and Gibbs would just say so. But they aren’t. Gibbs refuses to answer a direct question about the president’s views on the constitutionality of a law that discriminates against an entire class of people — a question so simple, getting an answer is proving comically difficult. So I think it’s perfectly fair to infer Obama does not hold that position, and I will believe the president does not think DADT violates the Constitution until he says otherwise.
vague responses
Obama Does Not Believe Don’t Ask Don’t Tell Is Unconstitutional. There, We Said It
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Michael
Well it isn’t unconstitutional…yet. That’s a determination for the Supreme Court, isn’t it?
I don’t see how Gibbs not saying it’s unconstitutional means he thinks it’s unconstitutional…that doesn’t work logically.
reason
On the record saying that it is going to end, not much more to ask for. Queerty is obviously in full campaign mode for the republican party. I don’t have a problem with that, it is stealth underhanded and advances their agenda. If the democrats want to have a gay GBLT arm in the blogosphere they need to create one.
CW
Obama’s thoughts on DADT’s constitutionality are irrelevant as the constitution itself has historically been discriminatory and unjust. See: Women’s Rights, Minority Rights, Gay Rights, etc.
I’m just sayin…
Gridlock
“Queerty is obviously in full campaign mode for the republican party.
Yeah, because pointing out the painfully obvious betrayal of supposed friends is tantamount to playing for “the other team”.
I love that dinosaur mentality. “My team good, no matter how much they screw me over! Their team, bad, booga booga Sarah Palin.. even though, in the end, LGBT rights advance the exact same under either.”
Sad. Wake up please. You’ve been lied to so long you’re defending the lies.
Devon
>>A judge rules that DOMA is unconstitutional.<>A judge rules that Don’t Ask Don’t Tell is unconstitutional and that the military must stop enforcing it immediately.<>A judge rules that religious groups can begin proselytizing in state parks.<<
Obama declines to appeal.
There's a very clear, very obvious pattern showing just how this administration feels about gay people…It's not a good one.
Devon
Well that came out weird…Let’s try that first part again…
-A judge rules that DOMA is unconstitutional.
Obama appeals, claims he has no choice.
-A judge rules that Don’t Ask Don’t Tell is unconstitutional and that the military must stop enforcing it immediately.
Obama appeals, claims he has no choice.
-A judge rules that religious groups can begin proselytizing in state parks.
Obama declines to appeal.
Meher Zaman
Honestly, it would be nice if Obama thought DADT is unconstitutional but I really don’t care about his opinion IF AND ONLY IF this damn thing gets repealed already.
Democrats are ignoring the LGBT community. Republicans would ignore the LGBT community AND say bad things about us. Honestly, if I had to choose, I would go with the Democrats rather than homophobic fools like Ken Buck who compare us to
“alcoholism”.
If the LGBT community wants to make change, we’re probably most likely going to do so under the Democrats, not the Republicans. Just saying.
Mike
It’s not unconstitutional.The military has a completely different set of laws and are able to restrict free speech or anything they see fit. They even have different military courts. A federal judge should not have a say in writing military policy. There are perfectly valid reasons for banning gays. They are basically doing you a favor you idiots. You’re going to be harassed and your life will be in danger. They don’t want to have to babysit and control hate crimes that are going to occur. These people who are being discharged knew exactly what the rules were before the signed up. It’s not like the magically created it out of nowhere.
Cam
@Mike: said.
”
It’s not unconstitutional.The military has a completely different set of laws and are able to restrict free speech or anything they see fit. ”
______________________
No, actually you are wrong, several cases against DADT have INDIVIDUALLY gone against the military but the courts have said that they could only remedy the situation for the one plaintiff. The Courts have said that TRADITIONALLY they will give some leeway to the military, but that is at the courts discretion, NOT because constitutionally the military is exempt from our laws.
Lastly, I think it was very telling that while speaking to HRC a White House Rep used the term Lifestyle Choice to describe gays. That shows us that that is the language they describe us with in the White House. She didn’t make an error, she just slipped up and let us see what they really think of is.
If Obama was serious that he wants DADT to get repealed through Congress, then what he would have REALLY said is this.
“We are appealing DADT because we feel that it should be undone in the Congress, to that end we are submitting to Congress our throughts on what the bill should say for it to be introduced immediately.”
They haven’t done this, I’m starting honestly to think that the White House just hates gays.
Why was it ok for school desegregation or Interacial marriage to get done through the courts but not OUR rights?
rf
The military does get great leeway to suspend many constitutional rights when you join. that is however, not fiat for the military to do whatever they want. The courts have some say over the executive branch, otherwise, we would have a military state. the issue here is that the military is treating gays and straights differently under their own rules and that is unconstitutional. Gays in the military have their free speech extra restricted while straights do not.
as for constitutionality of DADT, until SCOTUS weighs in, there is no proof one way or another that any law is constitutional. right now a federal judge says its unconstitutional. she doesn’t get final say.
IMO, Obama is counting on teh gays to get to the polls and vote democratic no matter what. esp since the republicans came up so crazy this year. even progressives that were going to punish the dems or not vote are scared to let repubs win now. he does not need us for real until 2012. and we (I mean we in general, many will remember), like everyone else in America, will have forgotten this nonsense if DADT is gone by then. and/or they finally get ENDA through. plus prop8 looks like it might fall in December and possibly MN, RI and NY might, might get marriage equality. and the DOMA cases are charging ahead too.
Jaroslaw
It has already been said here that unconstitutionally is determined by the court. I agree. My problem with Obama administration is I don’t understand why they appeal when things go in our favor. It seems that since Mr. Obama said he was going to be a “fierce advocate” for our concerns, it would be easy to tell his opponents – well, gee, the court ruled in favor of (some Gay issue) and we aren’t going to waste time & money appealing it.
the crustybastard
@Mike wrote, “A federal judge should not have a say in writing military policy.”
The military’s gay ban is found in 10 U.S.C. §654. That’s a public law, and therefore an expression of Congress’s policy — not the military’s.
Thanks for playing. You can pick up your participation ribbon in the back. Run along, now, sweetie. Grownups are talking.
ewe
Whoever said politicians were intelligent in the first place? Their agendas are more important than their public service.
Jaroslaw
#12 Mike was right (and wrong) about one thing (in post #8)- the people who signed up knew the rules. Then again, society messes with your head as a Gay teen, many people oppress their true feelings or are still in the process of working it all out at age 18 or 19. Perhaps the opportunity to experiment never came up and they really aren’t sure etc.
So, Mike, glad to hear that everything is easy, clearcut, black & white for you. It isn’t for everyone. Lighten up a bit, can you?
Jaroslaw
perhaps “repress” their true feelings would be better….
B
No. 3 · CW wrote, “Obama’s thoughts on DADT’s constitutionality are irrelevant as the constitution itself has historically been discriminatory and unjust.”
Aside from the fact that the U.S. is not perfect, Obama’s thoughts on DADT’s constitutionality are hardly irrelevant given that he had graduated from the Harvard Law School magna cum laude, had been the editor of the Harvard Law Review, and had taught constitutional law at the University of Chicago Law School – his opinion is relevant because he knows what he is talking about.
He can undoubtedly give you the best arguments in favor of declaring DOMA unconstitutional, the best ones in favor of declaring it constitutional, and an estimate of how the current Supreme Court might weigh both arguments in making a decision.
He also knows that the fine points would bore the average person to tears.
Brutus
@Devon: What’s the case? I’m not finding anything on Google. Given that it involves STATE parks, did it even involve federal law (beyond the First Amendment)?
Brutus
@B: Right on. The fact that Queerty thinks “the constitutionality of a law that discriminates against an entire class of people” is a comically simple question just goes to show that Queerty doesn’t know the half of what it’s talking about. Plenty of laws discriminate against classes of people and are fully constitutional. Laws regulations felons, for instance. Given that the Supreme Court has never held that gays get even intermediate, let alone strict, scrutiny, it’s incredibly eyebrow-raising that judges ARE finding these laws unconstitutional.
Jaroslaw
Brutus – I’m not a lawyer, but felons abrogated their rights when they became a menace to society. Treating law abiding, productive members of society (and even the non productive as long as they are not criminals) is a completely different question.
Certainly some of the folks on the side of morality/family/religion etc. can see the hypocrisy of letting some getting married and divorced numerous times (while reproducing in each marriage) and not letting Gays have even one partner? where is the equal protection in allowing this?
Jaroslaw
Isn’t it also true, that Constitutions exist (generally speaking) to GIVE rights and not to carve out groups to be discriminated against? This is not to say that groups cannot be discriminated against, but rather the governing body must adhere to a principle of ‘doing the least harm’ or having a ‘legitimate overriding interest’ in applying such discrimination.
the crustybastard
@Brutus:
Devon misspoke. Not state parks. National parks.
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101407137.html
In pertinent part:
The U.S. Court of Appeals for the D.C. Circuit ruled Aug. 6 that the Park Service’s regulation forcing individuals or small groups to obtain a permit for First Amendment-protected activities was unconstitutional. But the court upheld the agency’s policy of setting aside designated park areas for larger demonstrations and the sale of printed material after applicants obtained a permit.
The Justice Department declined to appeal the ruling.
The case was brought by Michael Boardley, who was distributing religious materials at Mount Rushmore in South Dakota in 2007 before a park ranger stopped him because he lacked a permit. His attempts to obtain a permit failed, and he later sued.
“It was a bureaucratic nightmare,” said Nate Kellum, senior counsel with the Alliance Defense Fund, a nonprofit Christian legal defense group. “He was completely stymied from sharing his Christian views with anybody else.”
@Brutus: The fact that Queerty thinks…constitutionality…. is a comically simple question just goes to show that Queerty doesn’t know the half of what it’s talking about. Plenty of laws discriminate against…felons, for instance. Given that the Supreme Court has never held that gays get even intermediate, let alone strict, scrutiny, it’s incredibly eyebrow-raising…
Yeah, everybody’s dumb but you.
Laws may discriminate, but only for a reason to advance a government’s purpose. Not for the lulz.
A state legislature enacts a law “to diminish the frequency of spousal abuse and child molestation” by banning felony spousal abusers and child molesters from obtaining marriage licenses. Constitutional? Maybe.
That same legislature enacts a law barring all felons from obtaining marriage licenses “as a lifelong reminder of the offender’s felon status.” Constitutional? No.
Put simply, the government cannot make a law that creates a class of people for the sole purpose of discriminating against that class. That is precisely what DADT (and DOMA) does.
The government claims that the presence of gays harms the military, but has so far been unable to provide any evidence to support that claim. (I suspect the military’s new review and survey process was intended to produce this evidence.) That might lead a judge to the reasonable conclusion that the law’s claimed rationale was a mere pretext for discriminating out of mere animus.
The only reason why gay people haven’t yet been regarded as a “suspect classification” is that judges have assiduously ignored not only their own definitions of what makes a group “suspect,” but they’ve also ignored the reason they created the suspect classification, which was to protect groups that are likely to be subjected to discrimination.
Currently, no other group is more likely to be subjected to discrimination than gays, and the sheer volume of Constitutional amendments, federal law and regulations, and state statutes that exist that discriminate against gay people — and no others —makes suspect classification status virtually self-evident.
It takes a special effort to ignore it.
B
No. 20 · Jaroslaw wrote, “Isn’t it also true, that Constitutions exist (generally speaking) to GIVE rights and not to carve out groups to be discriminated against?”
Nope – constitutions exist to determine the basic rules for how a government operates. Giving specific civil rights to the citizens was as afterthought in the case of the U.S., starting with the Bill of Rights (Amendments 1 through 10), and then expanded later (e.g., the 14th Amendment). Obviously we still have a ways to go, if only in practice.
Having a constitution does not automatically imply a particularly democratic form of government – you could (if you were sufficiently daft) write one that allowed a king and a parliament, with the parliament only authorized to draft suggested laws for the king to adopt or modify as he sees fit. Instead of groveling before the king, saying “A boon, sire, a boon,” you’d ask your MP, whose function in part is to limit the number of boon requests the king has to handle each month. Then you’d have an elected official to blame instead of the monarch and could feel like you did something by voting him out of office because you didn’t get your boon.
the crustybastard
@B:
No, the Constitution and the Bill of Rights don’t “give” you rights. You have rights by virtue of being human or a citizen.
The Constitution was intended to limit the ability of the government to infringe those rights (and to divide and delegate specific governmental functions amongst the branches).
Brutus
@the crustybastard: “[T]he Bill of Rights don’t “give” you rights. You have rights by virtue of being human or a citizen.”
Yeah, that’s the theory. In practice, however, you have only those rights that a majority has at some point recognized.
“[N]o other group is more likely to be subjected to discrimination than gays” False. See: atheists, polygamists, transgendered people, perhaps Muslims.
“Put simply, the government cannot make a law that creates a class of people for the sole purpose of discriminating against that class. That is precisely what DADT (and DOMA) does.” No. As you said: “The government claims that the presence of gays harms the military.” That’s the purpose. “…but has so far been unable to provide any evidence to support that claim.” There’s your argument that the law doesn’t actually further that purpose. That’s fine, but as I read the precedent in this area, deference to military context hasn’t previously required the government to provide the kind of proof you’re asking for, just its reasoned determination. You can say that that’s a bad rule, and I might agree with you, but I think Judge Phillips is way out of line here. It’s also not necessarily the case that they were unABLE to produce evidence — they simply submitted the exact same kind of evidence they’ve submitted in previous cases where they won. Why would they do anything else?
“(I suspect the military’s new review and survey process was intended to produce this evidence.)” Why are you so paranoid? The survey was to determine *how* to process removal. Racial integration of the military took five years. It’s reasonable to take some time to figure out IF there are going to be any issues that command is going to have to address when it flips the “OK, everyone come out now” switch.
“[T]he sheer volume of Constitutional amendments, federal law and regulations, and state statutes that exist that discriminate against gay people — and no others —makes suspect classification status virtually self-evident.” No, it doesn’t. It just means that homosexual activity is highly regulated. That’s the real reason homosexuals aren’t a suspect classification — because “gay” inherently blurs the traditional line between status and conduct. That’s why this is such a novel area of law, and why it is taking a long time to work out the kinks.
Jaroslaw
#22 – I have to disagree with you a bit…. Constitutions do exist to establish a framework for government, but what does the part about all men being created equal, pursuit of happiness mean? At a time when the King owned people, that sounds like rights to me. I also think, from the writings of some of the founding fathers, that they though the blessings of liberty would so enlighten people that a bill of rights wasn’t necessary. Later when it was, they made one.
The other problem with Gay rights is, for the majority, the concept of same sex love/sex as a NORMAL lifestyle was not part of anyone’s consciousness (for many now and esp. at the time of the Constitution) and that fact is just as much a hindrance as the “kinks in the law” Brutus mentions. Indeed in the 70’s a Minnesota (Gay male) couple sued to marry because the specific law for a marriage licence did not specifically say “man/woman”. They still lost because much of the other marital law did, though.
the crustybastard
@Brutus:
RIGHTS: Constitutional rights are not a “theory.” Courts have actually treated these rights sorta like an interest in real property. Yes, a person’s ability to exercise or assert those rights can be thwarted by the state’s refusal to recognize those rights, but the person always possesses those rights.
DISCRIMINATION: You may be right in terms of discrimination suffered at the hands of private individuals. That’s not what we’re talking about.
Atheists and Muslims are included in the religious category, and it is almost always unconstitutional to discriminate against them. People asserting a religious right to practice polygamy are typically religious, and so belong in that protected group. However, it is not discriminatory to enforce bigamy laws against men who think god told ’em to marry a bunch of chicks, any more than it is discriminatory to enforce age-of-consent laws against men who think god told ’em to marry a 10-year-old, any more than it is discriminatory to enforce burglary laws against the guy who stole your TV because you owe him $300.
Transgendered people are commonly lumped in with gays with regard to laws that discriminate on the basis of sexual identity, and to that extent they are subjected to enormous discrimination. However, in most cases, laws discriminate on the basis of engaging in same-sex relationships, and not all transgendered people do that.
STANDARDS OF REVIEW: At a minimum, any law challenged on the basis of violating Equal Protection must survive “rational basis review.” Rational, as you might have already extrapolated, means “arrived at through the exercise of reason.” Rational is the opposite of “just because,” and “meh, I guess I just felt like it.” Implicit in performing a rational act, is having a rational purpose. “I just want to put a legal beatdown on those filthy mofos” isn’t a rational purpose.
True, some judges treat the words “rational basis” in “rational basis review” as surplusage, or think an act is “rational” merely because the actor didn’t do it four hours into a bachelor party, or with a heroin needle sticking out of his arm. These judges convert “rational basis review” into “rubber stamp review” by applying the circular logic of “it’s legal because the government did it.” It’s intellectually lazy, it an abdication of responsibilities, and it make a mockery of the judiciary. Judge Phillips is not one of these judges, and that’s why there is a different outcome this time.
That said, the government didn’t bother to put forward much evidence for the same reason that a criminal defendant isn’t required to testify or even put on a case — they don’t bear the burden of proof. A plaintiff challenging the government must prove, in this case, that there’s no rational basis for the gay ban. Yes, that is indeed requiring the plaintiff to prove a negative and/or argue from ignorance, (which is why why most Constitutional challenges are unwinnable.)
THE SURVEY: Why am I so paranoid to think the survey is intended to produce evidence (however anecdotal or imaginary) to support the opinion that the presence of gays will indeed undermine morale, good order and discipline? Really? Hm. Maybe because that’s been the express opinion of the military since…forever? Maybe because that would provide the missing evidence for maintaining discriminatory policies, which is the precise reason they want to “change the [DADT] policy in a sensible way” instead of just outright chucking the ban?
Sure, they claimed the survey was performed to facilitate prospective integration, but that doesn’t explain why the survey questions are along the lines of “if you are working with a gay or lesbian, how would that affect your ability to fulfill your mission in combat?” It’s subtle, but they’re framing the issue as “obviously it will interfere, soldier, but tell us how FUBAR you imagine it’ll get?”
“IT JUST MEANS HOMOSEXUAL ACTIVITY IS HIGHLY REGULATED”: Wow. That was astonishing. So, um…nooooo. Wrong again. One of the questions presented in Lawrence v Texas was whether the government could regulate gay sex differently than it regulated straight sex. SCOTUS said “nope.” The end.
Gay rights is only a “novel area of law” because politicians and courts are inexplicably treating one sexual identity as if it renders you incapable of forming a contract, or disqualifies you from taking federal benefits you paid for, or places you outside the Constitution, or is relevant to how one performs one’s job or how one rears children, etc.
Sexual identity is almost never actually relevant. The only reason sexuality is relevant is because these goddam fucking assholes keep trying to make it relevant.
Which returns us to the headline. May the circle be unbroken. 😀