Legion: Appeal Ninth Circuit ruling on DADT

The American Legion - July 7, 2011
Posted in National Security

A Wednesday court ruling called for an end to the 18-year-old "Don't Ask, Don't Tell" policy on open homosexuality in the military. DoD photo

American Legion National Commander Jimmie L. Foster is calling on the Justice Department to appeal the July 6 ruling by the Ninth Circuit Court of Appeals that requires the U.S. military to allow gays to serve openly - thus ending the "don't ask, don't tell" (DADT) policy that has been in effect for 18 years.

"Micro-managing military policies by judicial fiat ignores the authority of our military leadership and circumvents the military's own Uniform Code of Military Justice," Foster said. "If we as a nation allow judges to institute military policy, we diminish the roles of the Secretary of Defense, the Joint Chiefs of Staff, Congress and the constitutionally mandated role of the nation's commander-in-chief. Simply put, the military's role is to fight and win our nation's wars. Judges lack the expertise on how to best do this."

Foster added that The American Legion has been voicing its concerns about the repeal of DADT for the last two years. "We were told the military was going to conduct an honest survey of how those who matter most - the men and women in uniform - feel about the issue," Foster said. "It was later reported that the numbers were manipulated in media reports that falsely indicated that 70 percent of the military members surveyed had no concern about its repeal.

"(Former) Secretary of Defense Robert Gates was so bothered by unauthorized and premature leaks of the report that he ordered an investigation by DoD's Inspector General. The U.S. Army and U.S. Marine Corps have been bearing the brunt of the combat, yet last year both of their service chiefs testified in favor of keeping DADT. In fact, we agree with Marine Gen. James Amos, who testified that the policy should not be based on ‘a social thing. It's combat effectiveness.'"

Yesterday's decision reinstated an earlier injunction on DADT by a lower court, which was later reversed. The Wall Street Journal pointed out that the latest decision "creates the possibility that recruiting rules could shift back and forth for weeks to come."

"This lack of consistency and expertise by the courts makes it very difficult to operate a first-rate military, much less fight two wars," Foster said. "This just underscores the rationale to give great leeway for the military to decide these issues in an environment devoid of politics and social considerations. The American Legion urges our commander-in-chief to appeal the Ninth Circuit decision, which undercuts the ability of our military leaders to use their best judgment in deciding what enhances - and what diminishes - military effectiveness."

If the Justice Department appeals and prevails, DoD officials will have to certify that military readiness won't be adversely affected by repeal of DADT. "We would urge DoD to resist political pressure and withhold certification until the issues of military readiness and unit cohesion are studied more honestly and thoroughly, " Foster said.

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Kevin Scott

July 9, 2011 - 11:19pm

For those who condemn the Courts deciding military policy, you are not only incorrect in your assessment, but you fail to understand the character of our Government and the checks and balances that were enshrined in the Constitution to protect against any branch of the Government from usurping power from another. The Courts do not dictate military policy or socially engineer anything. What they have done (and continue to do) is consider controversies in law and render opinions based on the Constitution.

Where the Legislative Branch enacts into law a policy that the Court considers unconstitutional, or in conflict with the authority of Congress (or the Executive Branch), it has the authority (and responsibility) to overturn those laws. Our understanding of the Constitution and the laws we enact is always subject to review. Consider the Dred Scott Decision in 1857, where the Supreme Court held that slaves had no Constitutional protection, were not citizens, merely property…

Kevin Scott

July 9, 2011 - 11:20pm

As for the nature of our government, it is not a pure democracy where the majority decides the standard under which we all live, but a republic where the rights of the minority are protected, even when the majority would prefer otherwise. The Supreme Court confirmed that in Romer v. Evans, ruling that Colorado could not divest the rights of a minority even when a majority had enshrined that prejudice in their constitution.

The military is taught to treat everyone with dignity and respect. That is the fundamental principle in most equal opportunity training. It is certainly policy of the Marine Corps. Again, I won’t get into whether or not you have to like it, but Congress has set into motion the repeal of DADT, the Federal Courts have overturned it. If we all treat each other with dignity and respect, there should be no problem…and the UCMJ will handle the rest.

Bob1

July 10, 2011 - 1:32pm

For the good and order of discipline. There are many “rights and privileges” you give up serving in the military, and for nearly 33 years I hated it. But looking back, I can see the necessity. I personally, would not want to be taking a shower, with openly gay personnel, and I’m as entitled to make that choice as gay folk are to change their personal sexuality. It seems to me that a large percentage of responders here are confused with the issue the Legion has taken up. It’s not whether or not gays can “openly” serve; it’s the intervention of a Judge in the Circuit Courts, taking actions in a place that is technically out of the court’s jurisdiction. You all need to go back to the Commanders remarks and READ again, paragraph 2. If a Judge thinks he's in position to tell me whom to shower with, I say he goes in that shower first! Better yet, how about opening your court chambers, a facility technically owned by the people, for all the public to walk in and use.

CaptUSMC

July 10, 2011 - 5:02pm

@Bob1: Did you not even read the two posts by retired Marine Col Scott where he discussed the purpose of the judiciary? Let me repeat: The Judiciary is a co-equal branch of government. They are the ones who decide if a law is constitutional. After a full trial, participated in by the Justice Department, DOD and the military, the Federal District Court found DADT unconstitutional. She enjoined the DOD from discharging anyone under the law. That injunction was stayed by the 9th Circuit Court of Appeal last year. Last week they lifted the stay. This is clearly in the jurisdiction of the Federal Court.

CaptUSMC

July 10, 2011 - 5:10pm

@Bob1:Now as to your other comments that you are entitled not to shower with openly gay people- I would agree. First, good luck finding a base with open gang showers outside of boot camp and base gyms. Somehow I think you are a bit too old to be a boot and I would speculate you are not a person who regularly uses a base gym. Second, in order to avoid showering with a gay person you would need for them to be open. Finally, those who are least likely to be stared at are the ones that protest too much.
Your likening changing one's sexuality to choosing who to shower with, is really over the top. No judge is telling you or anyone else who to shower with. Get a life.

jeb s

July 10, 2011 - 7:39pm

I believe the Post Commander is in the right because he is following his conscience as is his "right". I would also remind some of the people commenting on this page and making comparative references to Harry Truman integrating blacks and Latinos; homosexuality has not been proven genetically predetermined. Where the gay lifestyle was a choice it is increasingly becoming a matter of social cohersion. Integration will not be the "same". That said the fact 5-10% of the service is advocated by personnel who live the gay life style, the services had the lead in creating how to incorporate "gay" enlistees in a time of war and properly reward those who have served fairly. The constitution assumes there is "original equality" between all human beings and America has been perhaps the most aggressive nation in pursuing freedoms for it's citizens; I would still prefer the military had taken the lead before the lawyers, oops, representatives got involved.

jeb s

July 10, 2011 - 7:40pm

I believe the Post Commander is in the right because he is following his conscience as is his "right". I would also remind some of the people commenting on this page and making comparative references to Harry Truman integrating blacks and Latinos; homosexuality has not been proven genetically predetermined. Where the gay lifestyle was a choice it is increasingly becoming a matter of social cohersion. Integration will not be the "same". That said the fact 5-10% of the service is advocated by personnel who live the gay life style, the services had the lead in creating how to incorporate "gay" enlistees in a time of war and properly reward those who have served fairly. The constitution assumes there is "original equality" between all human beings and America has been perhaps the most aggressive nation in pursuing freedoms for it's citizens; I would still prefer the military had taken the lead before the lawyers, oops, representatives got involved.

DevilDog6467

July 12, 2011 - 1:01am

The military has taken the lead on it. But they have fallen into the red tape that plagues the bureaucratic system we have. December 18 is when Congress agreed that DADT was to be repealed...that was over 7 months ago. Almost the entire military has had their tier 3 briefs. The courts just sped up the process and made it official.

George Dolan

July 14, 2011 - 12:03am

Why does the Legion have trouble attracting new members? Why are you facing a demographic time bomb with half of your membership in their 50s and 60s? See Jimmie Foster's comments above for starters. When men and women in uniform under the age of 30, who work with gay servicemembers daily, think of the American Legion they picture angry old men, a Marlboro in one hand and a Pabst Blue Ribbon in the other, bitching about Tricare and "the gays."

DADT was repealed by a democratically elected Senate, House of Representatives, and president, and more than seven of 10 Americans think an openly gay man or woman should be permitted to serve in the military (Washington Post/ABC News Poll Dec 10, 2010).

Folks, it is not the president, Bush-appointed SECDEF, Judge Phillips, or gay soldiers who are off-base. It is you who are well outside of the mainstream of public opinion.

Signed - Boys Stater, Iraq War Veteran, Bronze Star Recipient, and VFW member

Wessex

July 23, 2011 - 1:35pm

DADT was a political compromise. In its day it was a step forward for respecting ALL servicemembers as the real citizens they are.
Now it is time to move forward, out of the twilight of DADT. Cold War witch hunts are gone. Gays and lesbians have been serving in the current long war, just like thousands of others. Their private lives have made no difference to the nobility of their service.
Just for background: I have 32 years of active duty so that makes me...over 50.
I look at it this way. I have three sons. If the draft came back at least two would be eligible, and if called I know they would serve. Claiming to be gay would be the easiest way in the world to avoid draft service. Why would a republic tolerate that kind of cowardice? And as a father, why should I? Because it will be my sons who answer the call and bleed for the Nation.
Last time I checked we all bleed red. Let's treat every citizen the same based on the color of their blood.

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