Judge orders halt to Don't Ask, Don't Tell

[Phrost]

You guys really fall for the worst trolling on the Internet.

 

[Newtons Bit]

No.

There is a well-established body of case law that describes how freedom of speech applies within the military; the basic idea is that the government may "restrict speech no more than is reasonably necessary to protect the substantial government interest."

It's hard to argue that rules against insubordination aren't reasonable to protect the substantial government interest in having orders obeyed.



I've never understood how mustaches or dreadlocks were supposed to be a threat to any substantial government interest in the first place, so I'm a bad one to ask about that.



Yes, she thought about those things.



Any that are "reasonably necessary to protect the substantial government interest." But that doesn't seem to include statements about whether your partner is an innie or an outie.

Okay, I get that.

Follow-up question: What Constitutional authority do they derive the "substantial government interest" from? The 1st amendment is explicit in stating that Congress shall pass no law respecting free speech. Is this just some sort of compromise between the Constitution and the purpose of the military that the Supreme Court laid out ages ago?

 

[Beerina]

Except there's legitimate military reasons to discriminate against those groups. No one has found such a reason to bar gays, maybe you'll be the first one?

Well, the standard reason is "ickyness", or making straights uncomfortable -- which is fine to outlaw in government of polite society. Not necessarily so fine on the front lines when you need everything you can possibly do to win a battle.

Even though I support the President or Congress ending DADT, I don't support the courts doing it. They are not charged with creating or leading armies, unlike the other two branches.

People say, "Well, African Americans were integrated (by the President, I believe) and that turned out fine." That is so, and may very well be so here. But that's a decision for the President, or Congress, to make since it impacts the fighting abilities of the army.

As such, it's ludicrous to think a court has a sayso in the methods of the military. It's incredibly hard to make a claim that such-and-such social issue is more important than lives trying to win a battle. And before people beak off, as I said, it may actually be better, fighting-wise, to make such a move. But that's a decision for the President or Congress to make. The court is just saying, "Can't do it because it discriminates!", with no consideration for fighting, which it has no authority under the Constitution to judge on behalf of the President and Congress. If nothing else, it violates the President's powers to lead the military, and Congress' to decide its composition and formation.

Whence cometh the judicial branch's Constitutional control over the military?

I can't even see the Supreme Court upholding this ruling for that reason. I would not even hold my breath that all, or perhaps even any, liberal members uphold it.

Thus, if you want it changed, talk to the President and your Congresscritter.

 

[INRM]

Beerina,

Good points

 

[drkitten]

Okay, I get that.

Follow-up question: What Constitutional authority do they derive the "substantial government interest" from?

Marbury v. Madison, where else?

The 1st amendment is explicit in stating that Congress shall pass no law respecting free speech.

The SCOTUS has consistently rejected the absolutist view of the Constitution that holds it to be a suicide pact.

Is this just some sort of compromise between the Constitution and the purpose of the military that the Supreme Court laid out ages ago?

No. It's a sensible interpretation of the Constitution that the SCOTUS laid out ages ago.

 

[drkitten]

As such, it's ludicrous to think a court has a sayso in the methods of the military. It's incredibly hard to make a claim that such-and-such social issue is more important than lives trying to win a battle. And before people beak off, as I said, it may actually be better, fighting-wise, to make such a move. But that's a decision for the President or Congress to make. The court is just saying, "Can't do it because it discriminates!", with no consideration for fighting, which it has no authority under the Constitution to judge on behalf of the President and Congress. If nothing else, it violates the President's powers to lead the military, and Congress' to decide its composition and formation.

Whence cometh the judicial branch's Constitutional control over the military?

From the fact that the Constitution itself is "the supreme law of the land," and the branch of government empowered to interpret the Constitution is the judiciary.

Congress' authority to "make rules" for the military is derived from the Constitution and ultimately subject to the limitations of the Constitution, just as the President's authority as Commander in Chief doesn't make him a military dictator.

Ultimately, you're rejecting Marbury v. Madison. There's no Constitutional text that allows the judiciary any sort of control over anything if one of the other branches should act in violation of the Constitution. The idea that the SCOTUS has authority to set aside civilian law, but not the UCMJ is,..... novel.

And completely ◊◊◊◊◊◊* crazy.

 

[quixotecoyote]

Well, the standard reason is "ickyness", or making straights uncomfortable -- which is fine to outlaw in government of polite society. Not necessarily so fine on the front lines when you need everything you can possibly do to win a battle.

Even though I support the President or Congress ending DADT, I don't support the courts doing it. They are not charged with creating or leading armies, unlike the other two branches.

People say, "Well, African Americans were integrated (by the President, I believe) and that turned out fine." That is so, and may very well be so here. But that's a decision for the President, or Congress, to make since it impacts the fighting abilities of the army.

As such, it's ludicrous to think a court has a sayso in the methods of the military. It's incredibly hard to make a claim that such-and-such social issue is more important than lives trying to win a battle. And before people beak off, as I said, it may actually be better, fighting-wise, to make such a move. But that's a decision for the President or Congress to make. The court is just saying, "Can't do it because it discriminates!", with no consideration for fighting, which it has no authority under the Constitution to judge on behalf of the President and Congress. If nothing else, it violates the President's powers to lead the military, and Congress' to decide its composition and formation.

Whence cometh the judicial branch's Constitutional control over the military?

I can't even see the Supreme Court upholding this ruling for that reason. I would not even hold my breath that all, or perhaps even any, liberal members uphold it.

Thus, if you want it changed, talk to the President and your Congresscritter.

It's not a bad argument, it's just too strong. There is a strong tradition of judicial deference, particularly with the beginning of the Rehnquist court, but it's not absolute and the judiciary will step in on occasion, as they did in the case of the military detaining Padillo.

 

[Normal Dude]

Also, why do you think that women can't serve as infantry?

As a former infantryman as well, I feel divided on the question. There is no doubt that some women would make great infantrywomen, since I've met a few that would. But basic physiology dictates that in an infantry unit, doing infantry things, the large majority of them wouldn't be able to keep up physically. I'm not just talking about PT tests and unit standards, but doing all the things that infantry do, like carrying a 200 lb. man wearing gear, going 15 miles with 75 lb. of kit, digging a foxhole as fast as possible, etc. I'm not sure (and I do mean "not sure", not trying to say "no") that it would be worth the effort for the very few that would be able to meet those official and unofficial standards. I know the Israelis allow it, or have at least had a history of allowing it at some point, but I haven't gathered enough reliable information to know the details or effects of that yet.

 

[Newtons Bit]

Marbury v. Madison, where else?



The SCOTUS has consistently rejected the absolutist view of the Constitution that holds it to be a suicide pact.



No. It's a sensible interpretation of the Constitution that the SCOTUS laid out ages ago.

Rude, useless and contradictory even in agreement. There's no mention of "substantial government interest" in Marbury v. Madison. You might as well have pointed to the Magna Carta for where Congress derives the authority to restrict speech if there is "substantial government interest". It would be just as relevant.

 

[drkitten]

Rude, useless and contradictory even in agreement.

And still better-informed than you. Which just goes to show that I don't need to outrun the bear, just the other camper.

 

[drkitten]

As a former infantryman as well, I feel divided on the question. There is no doubt that some women would make great infantrywomen, since I've met a few that would. But basic physiology dictates that in an infantry unit, doing infantry things, the large majority of them wouldn't be able to keep up physically. I'm not just talking about PT tests and unit standards, but doing all the things that infantry do, like carrying a 200 lb. man wearing gear, going 15 miles with 75 lb. of kit, digging a foxhole as fast as possible, etc. I'm not sure (and I do mean "not sure", not trying to say "no") that it would be worth the effort for the very few that would be able to meet those official and unofficial standards. I know the Israelis allow it, or have at least had a history of allowing it at some point, but I haven't gathered enough reliable information to know the details or effects of that yet.

Even the Israelis have had to bow to basic physicology at some level. For example, women (infantry) suffer significantly more overuse injuries and stress fractures than their male counterparts. (The numbers are something like 12% to 0% in the studied groups.)

The authors speculate that "there may be an intrinsic difference between male and female bone resistance to fatigue."

 

[Normal Dude]

Even the Israelis have had to bow to basic physicology at some level. For example, women (infantry) suffer significantly more overuse injuries and stress fractures than their male counterparts. (The numbers are something like 12% to 0% in the studied groups.)

The authors speculate that "there may be an intrinsic difference between male and female bone resistance to fatigue."

Thanks for the link and not surprising. The lifestyle is absolute hell on even a very fit and large male's body.

 

[thaiboxerken]

Changed that for you.

Please note that the group which brought the lawsuit against the government in the first place is the Log Cabin Republicans.

Let's not paint with too broad a brush, okay?

Log cabin are not typical republicans. The 95% of elected Republicans in the house and Senate that oppose repeal of DADT are.

 

[cwalner]

Log cabin are not typical republicans. The 95% of elected Republicans in the house and Senate that oppose repeal of DADT are.

somehow, that the Log Cabin have a different view than the rest of the party with respect to gay rights does not surprise me in the least.

 

[sarge]

Fair enough, I was being a bit hyperbolic. I agree that missing a limb would probably cause other issues besides phyiscal fitness. Besides, it is far more common for those missing limbs to be given a medal and thanked for their heroic service, then honorably discharged instead of entering the military.

Some percentage of amputees are being retained in service now, and assigned to duties that allow them to continue to serve without diluting standards of fitness. Recruiting, teaching, etc.

However, depending on the cause, I can forsee some mildly obese and older people meeting all standards that the the military would reasonably have without interfering with insfrastructure issues. Why should they be barred entry? Also, why do you think that women can't serve as infantry?

Obesity is a disqualifier, both to induction and continuation in service. The Army (and I assume the other services) have physical fitness standards that establish upper limits for body fat percentages. So - if a person is mildly obese, they actually don't meet all the standards and are eliminated/refused entrance.

The same is true for age. The military has age limits on service. The limits differ depending on whether one has prior service or is a new potential recruit. In either case, one can be too old to meet the standards, regardless of the ability to meet any other standard(s). It matters not at all that there might be a 75 year old man that could hack it. As the overwhelming majority of them cannot, the rule is that 75 year olds may not serve.

The military has a single purpose. In the persuit of filling that purpose, the military sometimes serves as a platform for social change. The racial integration of the 1950s and the elimination of artifical gender barriers in the 70s come to mind. That the military can be a platform for change should not mean that changes are made with the sole purpose of furthering a social agenda. If the proposed change is not at least impact neutral, then the change should not be made.

These restrictions have been tested by the courts, and the courts have consistently ruled that it is permissable for the military to exclude individuals that fit in a broad catagory. The military even gets to play it loose, and move the standards around as they see fit in order to meet manpower requirments.

I am a retired Infantry Sergeant Major, and I am a relatively senior Army Civilian. I work on Ft Bragg - the largest military installation in America. I see a loosening of the height/weight standards and of the adhearance to the physical fitness standards since we began prosecuting two wars. 10 years ago, failing a body fat test or a PT test would get you eliminated. Now, you can miss either by a significant margin and still deploy to Iraq.

As for women in the Infantry - the average physically fit female Soldier could not meet the physical requirments for an Infantryman. While there are probably a handful of elite women athletes that could do so, the advantages of having 10-20 more Infantrymen is not worth the real disadvantages of changing the selection and training process in order to weed out the thousands of women that might make the attempt and would inevitably fail.

 

[sarge]

As a former infantryman as well, I feel divided on the question. There is no doubt that some women would make great infantrywomen, since I've met a few that would. But basic physiology dictates that in an infantry unit, doing infantry things, the large majority of them wouldn't be able to keep up physically. I'm not just talking about PT tests and unit standards, but doing all the things that infantry do, like carrying a 200 lb. man wearing gear, going 15 miles with 75 lb. of kit, digging a foxhole as fast as possible, etc. I'm not sure (and I do mean "not sure", not trying to say "no") that it would be worth the effort for the very few that would be able to meet those official and unofficial standards. I know the Israelis allow it, or have at least had a history of allowing it at some point, but I haven't gathered enough reliable information to know the details or effects of that yet.

Did our paths cross?

Scout platoon (PVT-SSG) 1/325 AIR (Bragg) '79-'85
Scout platoon (SSG-SFC) 6/502 IR (Berlin) '87-'92
C 4/9 (1SG) (Alaska) '94-'95
B 2/1 (1SG) (Alaska) '95-'97
6th ID TAC (MSG) (Alaska) '97-98
82nd G3 SGM (MSGP) (Bragg) '98-'00
1/61 IN (BN SGM) (Jackson) '00-'02
325 AIR (BDE Ops SGM) (Bragg/Iraq/A'stan) '02-'04

 

[Beerina]

From the fact that the Constitution itself is "the supreme law of the land," and the branch of government empowered to interpret the Constitution is the judiciary.

Congress' authority to "make rules" for the military is derived from the Constitution and ultimately subject to the limitations of the Constitution, just as the President's authority as Commander in Chief doesn't make him a military dictator.

Ultimately, you're rejecting Marbury v. Madison. There's no Constitutional text that allows the judiciary any sort of control over anything if one of the other branches should act in violation of the Constitution. The idea that the SCOTUS has authority to set aside civilian law, but not the UCMJ is,..... novel.

And completely ◊◊◊◊◊◊* crazy.

Oh, it's ******* crazy. I guess you're right.

 

[Beerina]

Even the Israelis have had to bow to basic physicology at some level. For example, women (infantry) suffer significantly more overuse injuries and stress fractures than their male counterparts. (The numbers are something like 12% to 0% in the studied groups.)

The authors speculate that "there may be an intrinsic difference between male and female bone resistance to fatigue."

Very interesting. And something for Congress or the President to take advantage of, not the courts.


Since readiness is of overriding importance in a military, I find it a hard strain to suddenly interpret the Constitution as granting the courts the power to manhandle the military into the form it sees fit, independent of actual readiness considerations, to say nothing of actually reducing it, carelessly and for a social goal that's the woe du jour of a royal court.

You seriously think that's appropriate?


Again, I support getting rid of DADT. I just don't live in a world where I'm happy to throw philosophy and hard-won political propriety out the window to achieve a pre-decided goal.

 

[Whiplash]

Changed that for you.

Thank you for making that change, Mattus, because I'm a Republican, and I find what bynmdsue said to be absolutely reprehensible and disgusting.

And I can see it's a good thing I have ken on ignore. I'm honestly tempted to call him a typical liberal, but I realize that would be just as wrong, and biased on my part.

 

[eeyore1954]

Originally Posted by bynmdsue

Awright, now onto allowing the disabled and the obese and the elderly sign up so that no-one gets their widdle feewins hurt.

I guess I'll head downtown tomorrow to observe the great rush of the fabulous to the recruiting office. This is what the fags were waiting for,right? Now there's no obstacle to them signing up. Well except for the myriad STD's the average homo carries around inside them.

Typical Republican.

The same way the 9/11 terrorists were typical Muslims?