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14 October 2010

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James Nawrocki

As the ex-Navy JAG who sometimes submits those pesky liberal views, I want to say thanks, for being "willing to see how it works". And it will probabley work out no different than it has in the armed forces of most of our NATO allies.

James Nawrocki

BillWade

"And it will probabley work out no different than it has in the armed forces of most of our NATO allies."

I think it depends on who's doing the heavy lifting.

Patrick Lang

All

Since homosexual behavior is no longer illegal in the military, don't you think that we should do something about articles 120 and 125 in UCMJ?

No? why? pl

Jose

How are the Company Commanders and First Sergeants going to deal with this "new concept?"

Since homosexual behavior is no longer illegal in the military, don't you think that we should do something about articles 120 and 125 in UCMJ? - pl

Selective enforcement of UCMJ?

Things Only get better with progress...lol

Grimgrin

Yes, but those should probably be amended regardless of how DADT pans out.

WRT article 125, is it regular practice for American servicemen and women to turn down oral sex from their legal heterosexual partner for fear of prosecution under article 125? If it is, wow. If not the article should probably be amended just to bring the law in line with current reality.

As for 120, I'd also suggest dropping the "with a female not his wife" for starters. The implications of that are unfortunate. Replace it with "with a person, male or female".

And it's probably not over yet. The Obama DOJ appealed both DOMA rulings, so odds are that this is going to be stuck in appeals for a while yet.

Patrick Lang

Grimgrin

You are Canadian? This applies for your tiny forces as well? pl

Grimgrin

The Canadian Forces operate under a slightly different legal system. The Code of Service Dicipline that governs military justice in the Canadian Forces does not define any sexual offenses. However, article 130 of the code provides for the military prosecution of service-members who commit an offense under the Criminal Code of Canada. As far as I know, any sexual offenses committed by a soldier would be handled under the same legal code as equivalent crimes committed by a civilian, even though they would be tried in a court martial. If the Criminal Code of Canada or the Code of Service Discipline contained offenses equivalent to article 120 and 125 I would say definitely change them.

I didn't want to mention the experience or system of other Western militaries in my original comment, because as has been correctly pointed out in previous discussions on this topic, the scale and nature of US forces make them a unique case.

hotrod

A couple of stipulations, before my big concern -

-I reluctantly support the elimination of DADT, mostly for the integrity issues it seems to ceate. I retain concerns about how units will maintain good order and discipline in matters of sexual behavior, but it ultimately doesn't add up to (for me) a good enough reason for the status quo.

-I am not an attorney.

-I understand that American law isn't quite as neat as some in this country like to think it is, but is instead a tangled and confusing mishmash of legal formalism and legal realism, common law, conflicting statutes, common sense or lack thereof, a strange obsession on the part of courts with "legislative history", etc etc.

-I also understand that many of the people that complain about "activist courts" either don't understand/care about the above, or just mean that the decision didn't go the way they wanted.

Despite the issues I noted above, I am having a very, very difficult time squaring this decision (which I've only skimmed, BTW) with this seemingly clear phrase from the Constitution - "rules for the government and regulation of the land and naval forces", as in Congress shall provide.

After all, any seeming conflict with other aspects of law is not some loophole that Congress forgot to close - indeed, Congress very specifically addressed it - http://dont.stanford.edu/casestudy/appendixF.pdf .

Congress has not yet chosen to change this. It can anytime it likes, notwithstanding the request by Gates/Mullen/etc to wait. Instead, the prohibition has remained accross parties and administrations. I'm not an inside the beltway guy, so I'm not too interested in the reasons the current denizens of Congress haven't chosen to make it a priority, even before they lost control of the Kennedy seat - the fact remains, they didn't.

I understand, intellectually, that people have taken this up as some huge human rights issue. I don't agree, despite my lack of support for DADT, but I get it, sort of.

But that doesn't mean that the current view of some - "well, it would be BETTER if Congress acted, but, well, we're just REAL frustrated, so, oh well, we'll take it" is wise.

Indeed, I'll go further - it's shockingly stupid.

Judge Philips seems to have made the decision on a combination of free speech grounds and due process grounds, with the overarching rationale that the government hadn't met it's burden (apparently, the defendants have the burden in this situation) of proving that those limits of servicemembers rights support military readiness.

Dress it up in all the legalise that you want, a federal judge just said that she's the one to determine what constitutes military readiness. Not Congress and/or the Executive.

The New York Times and the other elites are falling all over themselves with politically correct giddiness - the NY Times even went so far as to use the word "partners" in specifying who should get family benefits. But that's because they're focused on the near term.

Anyone who cares about the longer term should focus on -

-a judge thinking they can not just weigh in on military readiness, but overrule the specific will of Congress, whatever the plain language of

-the fact that doing business this way infantilizes our citizens and undermines our political process

-the fact that a lot of UCMJ is apparently subject to spurious judicial tampering

- don't like those adultery rules? find a DISTRICT judge...it's possible to overstate this, but remember the Kellie Flynn (sp?) case. COL Lang touches on this by raising issues with a couple of UCMJ articles. I can never tell when he's being provocative, but the point remains...if Congress isn't permitted to regulate sexual behavior in the military, can Congress do ANYTHING from a rules and regulation standpoint that wouldn't be justified under ordinary civilian criminal and employment law?

If our national will will support dropping DADT - and it probably will...then Congress should do it. Believe it or not, if Congress REALLY cared, it would happen. At the same time, Congress could, theoretically, do all the grown up stuff necessary to make it work. Frustration over stalled legislation does not justify doing business this way.

Kunuri

Sayin Albayim,
In your last message to me you have mentioned an old friend from Izmir, I looked him up, sent him a message and it came back as such:

Ender Oztarakci has sent you a message.

Date: 10/06/2010

Subject: Patrick Lang

1972 yillarinda izmir natoda görevli olan bu arkadasi hatirliyorum. benim elektronik posta adresimi ona gecerseniz sevinirim.
ayrica, bu hareketinizden dolayi sizi kutlarim.
benim tel: 0 532 776 5968
bana ulasmak isterseniz bu no'dan arayabilirsiniz.
ender.

Ender Oztarakci e mail:enozta@tnn.net
Phone 0090 532 776 5968

Just in case, as I know you speak Turkish, a translation.

"I remember this friend who was posted in Izmir NATO in 1972. I would appreciate it if you pass on my email address to him. Moreover, I congradulate you for this honorable action.(looking me up for him) My number is 0532 776 5968. If you yourself would wish, you can reach me from this number.
Ender."

William R. Cumming

I understand the decision has been made by the administration to appeal the Court Order. This raises issues of compliance in the interim period of time. My guess is that DOD leadership is just plain tired of the time and effort spent on this issue and now only cares about retention rates but could be wrong.

SonHa70

Working in base/post housing administration will suddenly be very interesting when SFC Bill and Don are to be assigned quarters. The implications of this cascade far beyond the 1SG's company area.

Patrick Lang

Sonha70 et al

I guess I should make my position on DADT very clear.

If I were completely in charge I would continue DADT, but I am not in charge and the repeal of this law is a done deal. It will be repealed. All else is just "stroking."

Hotrod raises points that are being ignored. The gay people and their advocates are either ignorant of the actual conditions of military life or they just don't care.

What is the Congress going to do about present regulation of sexual conduct in the military?

The military is not just a jobs setting. It is a way of life. The military has been at war now for nine long years. the necessities of unending war create situations in which the concept of the military as a social community can be temporarily ignored, but these wars will end and it is hard to see in what form garrison life will survive. Nevertheless, the issue has been decided and we might as well get on with the process of transition. pl

William R. Cumming

Apparently the Administration's real plan is for the Congress to repeal the law or the court to strike it down. If neither happens Administration officials indicate NO other effort will be made at repeal. WOW! Talk about contingency planning.

Patrick Lang

All

One more time -- What is going to be done about Punitive Articles 120 and 125 in UCMJ? These are federal law as much as DADT is. What? You say that these articles will simply apply to all? Well, in the case of a heterosexual married couple it is possible to claim to believe that their sex lives do not include actions covered by these articles. In the case of homosexual people, married or not, it will not be plausible to claim that they are not violating UCMJ. Will that be repealed as well? Hotrod raises the question of the ability of the military to regulate ANY sexual behavior after this. I can see this as an issue. What about polygamy or polyandry? What right does the Congress or the military have to prevent some Muslim soldier from having more than one lawful spouse etc. ?l

William R. Cumming

Well SCOTUS long ago rules on polygamy in context of Mormon religion in a somewhat contorted ruling. And the plain fact is that selective enforcement of sections of the UCMJ are the order of the day. Is the conduct offduty and not disruptive or onduty and disruptive may be at the core of the enforcement decision! But I could be wrong.

CK

We Are Sparta.

Mike C

Col. Lang-

I understand Lawrence v. Texas effectively struck down enforcement of sodomy laws, for civilians anyway. I would think the military's primary concern is behavior that interferes with good order and discipline.

This boils down to a question: Can a law be written that says "the effect of a service member's behavior determines if it is a violation?" In other words, who cares what someone does, so long as it doesn't become a problem? It seems that was the intent of DADT, to keep a traditionally viewed deviant lifestyle and the job (as you've pointed out, a lifestyle in itself) separate.

The next question is, how would the military consistently enforce an "effects based" law?

Patrick Lang

Mike C

"The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has upheld that Lawrence applies to Article 125 of the UCMJ, the article banning Sodomy. However, the court has twice upheld prosecutions under Article 125 (the article prohibiting sodomy), in United States v. Marcum and United States v. Stirewalt, finding that the article was "constitutional as applied to Appellant"[21][22] and when applied as necessary to preserve good order and discipline in the armed forces. Although no court has interpreted the U.S. Constitution to require states to allow same-sex marriage, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health that the Constitution of the Commonwealth of Massachusetts required that same-sex couples be given full marriage rights, and similar decisions have occurred in California, Connecticut, and Iowa which embrace the reasoning used in Lawrence v. Texas in reaching decisions under their own respective state constitutions. Moreover, several federal district and circuit courts that have considered the extent of Lawrence have held that it is a narrow holding (See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Lofton v. Sec. of Dep’t of Children & Family Services, 358 F.3d 804 (11th. Cir. 2004); Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004).) The Supreme Court has not yet accepted any cases that present an opportunity to further define the implications of Lawrence." Wiki on the Lawrence vs.. Texas case

This doesn't sound like settled law to me in so far ar UCMJ is involved.

WRC

I don't think an ancient case on polygamy will be much of a factor. pl

Patrick Lang

CK

I thought it was Thebes. pl

Colin Laney

Military service is about service to the security of the Republic, not jobs for girls and gays.

Most homesexuals in the military probably are women. At least the stats on who gets expelled make it look that way.

Colin Laney

Military service is about service to the security of the Republic, not jobs for girls and gays.

Most homosexuals in the military probably are women. At least the stats on who gets expelled make it look that way.

(Typo corrected.)


CK

Sir:
Thespians did not hold the pass at Thermopylae; 'twere
happy Spartan boys... and their boyfriends.

Byron Raum

We already know how well being gay works in the military. Some of the world's most respected and feared armies have been gay. Or, at least bisexual. I don't think American gay men are really all that different from their counterparts one or two thousand years ago.

Personally, I believe the government needs to get out and stay out of the marriage business. Having said that, the contract between a soldier and the military is different from the contract between me and my employer. To what extent, I cannot say, since I don't have the slightest clue how to judge military readiness.

I would suggest that the judge's ruling is not inappropriate in the context that the army has a exclusive right to judge military readiness, but the judge has the right to decide whether the ban is actually related to readiness or whether it is related to prejudice. Certainly, the judge has thousands of years of historical evidence to back up the idea that having gays in the army doesn't hurt military capability.

Patrick Lang

Byron Raum

"the judge has the right to decide whether the ban is actually related to readiness"

How absurd. She is no more qualifed to make that judgment than you are. pl

Patrick Lang

CK

http://en.wikipedia.org/wiki/Sacred_Band_of_Thebes

Chaeronea. I never said anything about the sissy boy Spartans. pl

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