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March 25, 2010

Experts react to Pentagon shift in DADT policy

The Pentagon today announced it would make it more difficult to discharge lesbian and gay service members by issuing rules that only a general or admiral may initiate firings; adding a litmus test for the type of information that can start an investigation; and limiting third-party outings. A summary of changes is available from the Pentagon, as well as revised procedures for discharging enlisted personnel and officers. 

The following comments by scholarly experts are provided by the
 Palm Center at the University of California Santa Barbara
 
Aaron Belkin, Director, and Associate Professor of Political Science, University of California, Santa Barbara:

The changes announced today are the first cracks in “don’t ask, don’t tell” since the policy was implemented seventeen years ago. While the operational impact of the Obama Rule may be limited, the political impact will be widely felt. These steps represent important forward movement. They send a signal to the military chain of command and the public that repeal is on the horizon, and that the military is prepared.
Nathaniel Frank, Senior Research Fellow, and author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America:

Today the Pentagon took an important step to end “don’t ask, don’t tell” by making it harder to fire lesbian and gay troops. For over two hundred years, the U.S. military was hostile to homosexuality, but today the Pentagon sent a message that lesbians and gays can serve our country without harming the force. By making it more difficult to fire gay service members, the Pentagon has signaled that service members who are widely known to be gay should continue to serve.
 
The full impact of the changes will depend on how they are actually enforced. We know that past attempts to dress up a bad military policy have been like putting lipstick on a pig and have failed. Perception is reality, and if the higher bars to discharge are not actually used to reduce firings and create a sense of privacy for gay troops, these changes will be a charade.
 
As Secretary Gates said today, the Pentagon could have raised the bar even higher, but chose not to. So while the administration is to be commended for taking this step, its work is far from over. As the focus shifts to Congress, the President has a major role to play to end the ban outright. If the President builds on this step by fighting successfully for legislative repeal, he will ensure his place in civil rights history not only for his own story, but as a fierce advocate of equal treatment.

Diane Mazur, Legal Co-Director, and Professor of Law, University of Florida Levin College of Law, former Captain, USAF:

When the military requires high-level approval for personnel actions, it is indicating that it believes enforcement of the policy is harming military effectiveness. In chipping away at the effects of the law, the Pentagon is conceding that knowledge of openly gay colleagues is not a problem, which is the whole basis of the policy. The changes announced today under the Obama Rule show repeal is inevitable.

 -SS

March 25, 2010 | Permalink | Comments (0) | TrackBack

March 22, 2010

Giving plaintiffs a trial on their claims was unfair, Prop 8 defendants complain

The religious-conservative groups who intervened as defendants in the federal constitutional challenge to California's Proposition 8 had moved early in the case for summary judgment.  Recognizing the value of making a record for the inevitable appeal, the judge decided to hold a trial instead.  Now that the trial has occurred, the defendants are ratcheting up their criticism of the decision to hold it -- an interesting tactic, given that the judge has yet to rule on the merits.

Adam Liptak of the NYT reports:

Opponents of same-sex marriage have long said the issue does not belong in the courts. Lately they have gone a step further.

They say Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, made a serious mistake by calling for a trial in a challenge to California’s ban on same-sex marriage rather than deciding the case based on paper submissions.

“To think that somehow the rules of evidence can lead you to the right answer is just not right,” said Jordan W. Lorence, a lawyer with Alliance Defense Fund and a member of the trial team for the people and groups who intervened to defend the ban after state officials would not. “There should not have been a trial.”

Ted Olson, one of the lead attorneys for the gay couples challenging Prop 8, retorted that the defendants' complaints are sour grapes.  They’ve got to complain about something,” Olson told the NYT. “They think they’re going to lose.” 

Regardless of what they may think of a particular judge and his rulings, most litigants remain extremely circumspect and avoid anything approach public criticism while a case is pending.  It's just common sense.  This reality makes you wonder: were these criticisms just a matter of advocates being caught off guard, or do they portend a strategic legal and political line of attack in which the federal court -- and in particular Judge Walker, who is gay -- are attacked as biased, undemocratic, activist, etc.  And if the latter, is the audience for those attacks limited to the public (which tends to know almost nothing about summary judgment standards or the fine points of Constitutional law), or is the Alliance Defense Fund pitching at potential allies on the 9th Circuit or the Supreme Court? 

-SS

March 22, 2010 | Permalink | Comments (0) | TrackBack