the don't tell show

Supreme Court Keeps DADT Alive During DoJ’s Appeal Circus. Oh, And Elena Kagan Ducked Out Of This One

Denying the Log Cabin Republicans’ request to knock down the Ninth Circuit’s stay — which kept DADT alive despite a federal judge ruling it unconstitutional — the Supreme Court’s Justice Anthony Kennedy is keeping the policy in tact while the government exhausts its appeals. Today’s more interesting development, if there is one, is the decision of the court’s newest inductee Elena Kagan to recuse herself from the decision, indicating she won’t be a part of the nine-person bench when LCR’s lawsuit lands before the Supreme Court. That could mean the decision would reach a 4-4 split, thus upholding the Ninth Circuit’s decision — which has a decent shot of upholding Judge Virginia Phillips’ ruling that DADT is unconstitutional. But: With a 4-4 split, the ruling would thus apply only to the Ninth Circuit’s jurisdiction, not the national as a whole, though the asterisk in this scenario hinges on Phillips issuing a worldwide injunction against DADT, making the jurisdiction issue moot. And with Kagan seen as a likely supporter of repeal, the recusal is a blow to gay soldiers. Why did Kagan recuse herself from participation? Though the order nor the justices stated why (as is common practice), keep in mind Kagan represented the federal government as solicitor general in Witt v. U.S. Air Force; it appears any DADT matter, then, would represent a conflict for Kagan, or at least the appearance of one.

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  • WillBFair

    It was obvious that this would happen.
    Again, our strategy is either randomly chosen by uncooperating groups, or debated by the self destructive crowd until a loosing plan is found.
    Now with Obama rolling over for the Republicans two months early, we are totally screwed.

  • Brutus

    This has nothing to do with how much anyone likes or dislikes gays.

    This has to do with the rule of law.

  • Kieran

    Barack “No We Can’t” Obama. Looks like you poor gay people have no where else to go and you’ll just have to wait and mobilize until November 2012 and “hope” the Democrats win the next election.

  • slobone

    Today’s decision was a foregone conclusion. Obviously this is too important an issue to be resolved by a single justice overturning a stay.

    But I’m not going to predict what’s going to happen next, this whole saga is getting too strange. DADT is starting to look like the party guest who stays too long and nobody knows how to get rid of him…

  • GayGOP

    I want to echo the above sentiments that this was a foregone conclusion. Furthermore, I want to say that while I understand the disappointment that Justice Kagan recused herself from the case, she was required by the canons of ethics to which Judges must adhere to recuse herself from the case, because as Solicitor General, she, and her office, had a hand in the case. She cannot hear the case, and whilst it is a blow, she had no real choice.

  • Michael Ejercito



    And, of course, the issue of whether or not the U.S. could exclude homosexuals from military service is a different issue from whether or not the U.S. should exclude homosexuals from military service.

    Note that the LCR case was not the first case where a trial court overturned DADT; the earliest case I was aware of where a U.S. district court overturned DADT was Able v. United States back in 1995. (The Second Circuit overruled the trial court on appeal, and the Supreme Court did not hear any appeal of that case.)

  • Kamikapse

    Why would Kagan be a likely supporter of repeal?

    Do we have any evidence of this?

  • Brutus

    @Michael Ejercito: That’s precisely correct. I’ve been making that point here for months only to be told that I’m “self-hating,” an “Obot,” and so forth. Just because something is constitutional does not mean that Congress must or even should do it; but if it’s unconstitutional, a court is saying that Congress cannot do it. I understand people’s indignation, and yes there is a human cost as well as a visible cost to national security, but as the law stands it’s still not clear whether it’s in fact unconstitutional.

  • Brutus

    Also, in reading Able, it’s interesting to see that DADT is, almost word-for-word, a DoD policy promulgated in 1982. So everyone can STFU about how it’s “the Democrats’ fault.” It was Reagan. You know, that guy who completely ignored AIDS and fired up the evangelicals.

  • Michael Ejercito


    One of the key architects of the DADT law was Sam Nunn.

  • J. Clarence

    @Kamikapse: Yes, in all likelihood she probably would come down against the repeal, as when she was dean of the Harvard Law School she banned the ROTC (if I remember the entire situation correctly) because of the policy. It was a big issue during her confirmation hearing.

    I’m not really sure what Queerty is trying to imply here around Kagan. It’s common practice for justices to recuse themselves in these situations. Kagan is already a justice, she has the job for the rest of her life if she wants (barring she does something highly controversial); so I doubt she stepping down purely out of how it might look to the masses, specifically conservative commentators, because it doesn’t matter anymore what the rest of us thinks of her as a justice.

  • Michael Ejercito

    Now that the injunction will be stayed pending a Ninth Circuit decision on the merits, let us discuss the merits of the case.

    One of the reasons for the district court ruling is that DADT violated the First Amendment. But it has already been established that servicemen have fewer First Amendment protections than civilians (Goldman v. Weinberger)

    For example, in Texas v. Johnson , the Supreme Court struck down a ban on flag desecration as a violation of the First Amendment. And yet, an order to not burn an American flag (or even an order to burn an American flag) would be constitutional; Johnson can be distinguished from such a case.

    To be sure, the military’s authority to regulate the conduct of servicemen has limits. But at the very least, an order or regulation prohibiting servicemen from revealing a homosexual orientation while on duty falls within these limits.

  • J. Clarence

    @Michael Ejercito: I agree, the “it’s a violation of their First Amendment rights” is really shaky, and it comes across as the judge trying to solve a social problem, because the legislature does not want to do it (or more accurately can’t do it, because the structure of the Congress, especially the Senate), and as a result the judge has just attempted to see what can pass as a sensible argument about the policy unconstitutionality.

    In this sense it’s much like Roe v. Wade, where the opinion, its justification, and it’s constitutional “origin” does not really matter as much, or at all, in comparison to its intended effect; which in this case is putting an end to the policy.

    With this in mind I find somewhat funny that a lot of gays have shifted focus to the courts as the institution that should fix this problem because of the current makeup of the Supreme Court.

    I still have to read the entire opinion, but I’m just curious exactly how the policy on its merits is a violation of Free Speech, as gay soldiers are not prohibited from saying that they are gay, but rather simple told that if they do say that they are there are legal consequences to that.

  • Michael Ejercito

    @J. Clarence:
    The gay activists have implicitly accepted that the meaning of the Constitution relies on the makeup of the Supreme Court.

    The argument is that the legal consequences of soldiers revealing a homosexual orientation violate the First Amendment. But courts have already determined that the First Amendment has a narrower scope in a military context (Goldman). The military can certainly prohibit its servicemen from burning an American flag (or even order one or more of them to burn an American flag) despite Johnson, and a constitutional challenge to such an order would almost certainly be unanimously denied by the United States Supreme Court.

    The issue of whether or not DADT violated the First and Fifth Amendments is admittedly a gray area, as there is no Supreme Court precedent directly addressing this issue. Factors may include if the policy furthers military discipline, and on-duty and off-duty conduct.

  • jason

    It’s bizarre that Kagan has recused herself from any DADT case. It shows that she is not up to the job. She ought to be dismissed from the Court.

    We have right-wing Catholics on the Court like Scalia and Alito basically controlling the agenda with their bowing and scraping before the Vatican. Surely that is a far more serious conflict of interest than anything Kagan might represent.

  • Jeffree

    You ought to try learning a little something about how the Judicial system works before you engage in your baseless and incorrect assumptions about why Kagan recused herself.

    Calling for her to be “dismissed” from the court shows that your (barely) 5th grade level of education hasn’t served you well when it comes to dealing with 11th grade topics. Perhaps you’ll learn about it when you study for the GED.

  • H

    Regarding the first amendment issue, it’s not that “servicemembers can not discuss their sexuality” but “gay servicemembers can not discuss their sexuality.” straight servicemembers can talk about wives, dates, who they went bowling with last night, etc. So this becomes an issue of restricting content from an unpopular view. The constitutionality of THAT is questionable. If dadt had been applied equally to straight AND gay servicemembers I think our case would be weaker. But it clearly hasn’t been. This has been a first amendment breach applied only to one section of the group. And considering the government has done (I believe it was ) 4 separate studies trying to show why out gays would be bad and they ALL wound up saying “actually it would be fine” … Should be an interesting case. Because you need a legitimate reason for the things you do. Particularly when it violates someone’s constitutional rights.

  • Michael Ejercito


    It is not so bizarre as she had defended against this exact suit in court. For this same reason, she will probably recuse herself if the Witt v. Department of the Air Force case ends up before the Supreme Court. (I do not know if the Court had already denied cert in Cook v. Gates, though I would not be surprised if Justice Kagan had recused herself from the vote on the writ of cert.)
    The problem is, in a military context, such content restriction is permissible. The military can certainly forbid its servicemen from wearing neo-Communist or neo-Nazi regalia. The military can forbid its servicemen from burning an American flag, (despite Texas v. Johnson) even if they had permitted, or even ordered, its servicemen to burn a Taliban or Gazan flag.

    Also, a reasonable belief that the sexual dynamics involved with out gays would harm discipline and good order is a legitimate reason, even if the belief is mistaken.

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