Balkinization  

Friday, November 30, 2007

Don't Ask Don't Tell Don't Make No Sense-- When Will It Be Repealed?

JB

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

Because all of the Democratic candidates are opposed to it, one presumes that don't ask don't tell will be eliminated in the next Administration if a Democrat is elected and the Democrats retain control of both Houses of Congress. In general the Republican candidates have supported keeping it (I don't know if Giuliani has spoken on the question recently). But that does not mean that a Republican President won't sign a bill repealing it, especially if the war in Iraq continues and the military needs all the soldiers it can get. If the military signals it wants a change, I believe that both Congress and the President will go along.

What about a court challenge? Well, although in my opinion, the law is pretty clearly unconstitutional, it was upheld repeatedly by lower federal courts in the years immediately after its passage. Of course, attitudes have changed, but these lower court decisions are still there; the Supreme Court would probably have to get involved. Although the Supreme Court might consider the constitutionality of don't ask don't tell in the future, it would be reluctant to take a case if it was not clear that the military had changed its mind on the policy. That is true even though the swing vote would be the author of Lawrence v. Texas, Anthony Kennedy. All of which means that if a Democrat is not elected President in 2008 (leading to a repeal), the military itself will likely decide when don't ask don't tell will be replaced by signaling that it has no interest in maintaining the policy any longer.

Don't ask don't tell is a good example for analyzing how constitutional law changes. Much constitutional change occurs because social attitudes change that eventually get reflected in law. When that happens, change usually comes first not in federal court decisions but in decisions by the political branches. Federal courts are usually the last actors to recognize changed circumstances and attitudes and act on them. That is why I say that courts are bad at tackling, good at piling on. Where the military is concerned, federal courts are particularly deferential. Bill Clinton, sensing changes in views on gays, tried to abolish the ban on military service early in his presidency but was forced to compromise, in part because lacked the political capital to succeed and in part because he handled the matter badly. The lower federal courts ratified this compromise, which exists to this day. Since that time, social attitudes have changed even more decidedly toward equality for gays, and the Supreme Court has confirmed this shift in the 2003 Lawrence decision. That is, Lawrence followed the trend of public opinion, rather than getting ahead of it. (It's also worth noting that federal courts have not been asked to rule on the constitutionality of same-sex marriage; advocates have pursued change in state courts and state legislatures. If federal courts ever decide in favor of same-sex marriage, it will likely be many years down the road.)

Given these facts, it is a fair bet that the end of don't ask don't tell will probably come from the political branches before the Supreme Court has a chance to pass on it. The Supreme Court will only get involved if the policy lasts for a very long time after the military has effectively signaled that it will not enforce it, and Congress fails to respond.

UPDATE: The comment below about the pending First Circuit case poses an interesting possibility: If the First Circuit were to hold the policy unconstitutional it would create a split in the circuits, which would greatly increase the chances of Supreme Court review. But if the Supreme Court did accept cert, it would probably not hear the case until after the 2008 election. This might well inject the issue into the 2008 campaign, although I am not certain that the Republican presidential candidate would want to make as big a deal out of it as the Republicans did with the gay marriage issue in 2004. It strikes me that the issue of gays in the military has a somewhat different meaning to the public than the issue of gay marriage, and arguing against gay rights in this context would not prove as advantageous as a wedge issue. In any case, the position of military officials would remain crucial, as it proved to be in the Grutter v. Bollinger case on affirmative action.

Comments:

A serious post-Lawrence challenge to DADT was brought by Servicemembers Legal Defense Network and the DC law firm of WilmerHale on behalf of a dozen service members with outstanding records who were discharged and seek reinstatement in the military. The district court in Mass granted the government's motion to dismiss and the case is pending on appeal in the First Circuit. Although it was argued almost a year ago, there's not been a peep from the Circuit Court. The Plaintiffs' First Circuit brief is here:
http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/3310.pdf
 

I doubt a Dem president will touch this issue unless they can get the military brass like the Joint Chiefs to ask for a change. The Dems have a well earned reputation for being hostile to the military and treating it like a welfare program for soldiers. Vets were hardly in the mood to give the draft dodger Bill Clinton the benefit of the doubt on gays in the military and this was one of the signature issues which caused the Dems to lose Congress in 1994.

Proponents of change might have a better chance with Giuliani in office. Giuliani is a hardass and unlikely to be accused of being hostile to the military like the Dems, but he also has a history of sympathy to gay rights. Consequently, he could probably get away politically with a Nixon Goes To China move in this area.
 

"Because all of the Democratic candidates are opposed to it, one presumes that don't ask don't tell will be eliminated in the next Administration if a Democrat is elected and the Democrats retain control of both Houses of Congress."

If the President wants it, does Congress have any say in the matter? Isn't the President Commander-in-chief? Didn't Truman integrate the armed services with an executive order?
 

steve:

I believe that Congress may have to amend the UCMJ to make this change.
 

"Bart" DePalma:

The Dems have a well earned reputation for being hostile to the military and treating it like a welfare program for soldiers....

Unlike, say, the maladministration that has screwed up veteran's programs, tried to deny vets benefits, refused to play claims for signing bonuses for soldiers who didn't serve their full term because they were injured (but relenting under pressure), and that has put political hacks and incompetents in charge of the VA? And that's not mentioning sending them to battle without armour, proper equipment, and training....

Seriously, "Bart", if you have any evidence that Democrats have been "hostile to the military", out with it. I'd note that the Republican leadership is a bunch of chickenhawks, while many Democrats served. They're hardly "hostile"; in fact they probably understand the troops better than the Republicans that are under the impression that the thing you can do to make a soldier most happy is to send him into battle as early ans as often as possible so he can 'die for his country'.... Feh.

... Vets were hardly in the mood to give...

... Clinton a pass on gays?!?!? No one asked the soldiers.

Cheers,
 

"Bart" DePalma can see things that no one else can see:

[T]his [Clinton's GITM policy] was one of the signature issues which caused the Dems to lose Congress in 1994.

Huh?!?!? Clinton did this. He wasn't running for re-electionin 1994. ANd he won in 1996.

Say, on your planet, "Bart", wasn't it the Dem's "weakness on defence and Terra-ism" that caused the massive Republican landslide victory in the 2006 elections?

Cheers,
 

Giuliani is a hardass...

Interesting spelling variant of "chickenhawk".....

Cheers,
 

Jack, I think you're a bit overoptimistic about DADT being repealed with a Dem President and Dem Congress. I fear there are significant numbers of Dems -- the Blue Dogs -- who would be reluctant to vote to repeal it. And none of the Dems likely to be President seems to me to be inclined to put the political capital behind it to force it through. Certainly I can't imagine Hillary would, given how badly Bill got burned on the issue.
 

I apologize for going off topic, but I thought this was fascinating.

Gallup just released the results of a poll asking respondents to give their party identifications and their own self rating of whether their mental health was excellent, good, fair or poor.

The results were shocking.

Self identified Republicans rated their own mental health far better than did either Independents or Democrats. There were only statistically insignificant differences between Indis and Dems.

Moreover, this relationship between party identification and reports of excellent mental health persists even within categories of income, age, gender, church attendance, and education.

While respondent's were more likely to rate their mental health higher if they were wealthier, educated, males, younger or attended church, self identified Republicans still rated their mental health significantly higher controlling for all of these factors.

Indeed, among the poor and those with a high school education or less, the Republican differential over Indis and even more so over Dems reached its largest spread.

Finally, the poll covers a very large 4000 respondent sample, so the sampling error is only 2% or less.

[Before some of my Dem and Indi friends here get going, remember that this is a self evaluation, not an objective measurement of true mental health.]

Consequently, we are left with a chicken and egg causation dilemma.

Does belonging to the GOP make people more confident in their mental health or are people who are confident in their mental health attracted to the GOP political philosophies?

Conversely, does being independent or Dem lead people to be less confident about their mental health or are people who are less confident about their mental health attracted to the independent or Dem political philosophies?

I have no idea. Do you?
 

I am going to post this question at my blog, so we can continue the conversation there and stay on topic here.
 

Conversely, does being independent or Dem lead people to be less confident about their mental health or are people who are less confident about their mental health attracted to the independent or Dem political philosophies?

I have no idea. Do you?

# posted by Bart DePalma : 5:13 PM


I'm relatively certain that you're a lunatic. So I'm guessing that the mental health confidence held by many conservatives is a good indication that they're delusional.
 

"Bart" DePalma:

Self identified Republicans rated their own mental health far better than did either Independents or Democrats. There were only statistically insignificant differences between Indis and Dems.

Turns out that stoopid people are too stoopid to know they're stoopid too. They overrate their abilities.

[Before some of my Dem and Indi friends here get going, remember that this is a self evaluation, not an objective measurement of true mental health.]

Good point. We are of the considered opinion that you're a basket case of RWA and delusional behaviour, even if you think otherwise.

Cheers,
 

Anyone considering posting on Baghdad Bart's blog should keep in mind that he censors posts.
 

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