A federal judge today ordered the government to stop enforcing the discriminatory Don’t Ask, Don’t Tell policy.
Judge Virginia Phillips of California found last month that the policy violates servicemembers’ First Amendment speech rights and Fifth Amendment right to due process. The injunction she issued today takes effect immediately. The Obama Administration can still choose to appeal her decision.
Christian Berle, the Deputy Director of the Log Cabin Republicans, reacted with this statement:
"These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution," Berle said. "It is imperative that their constitutional freedoms be protected as well. This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."
Federal judges in two separate cases this year have found Don’t Ask Don’t Tell dismissals to be unconstitutional. I summed up some other voices of authority weighing in on the DADT debate in this post. The policy is a disgrace, and it’s far past time for it to be a piece of our history.
Update: The Advocate talked with White House Press Secretary Robert Gibbs about the possibility of appealing the ruling:
At a Tuesday briefing soon after Phillips's issued her judgment, White House press secretary Robert Gibbs told The Advocate he did not know whether the Administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. "Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case and the president will continue to work as hard he can to change the law that he believes is fundamentally unfair," Gibbs said.
Yesterday in a California courtroom, the already decaying edifice of anti-LGBT discrimination crumbled just a little bit more: U.S. District Judge Virginia Phillips ruled that Don't Ask Don't Tell violates the United States Constitution. Specifically, she held that DADT violates servicemembers' Fifth Amendment due process rights and their First Amendment speech rights.
With regard to the due process aspect, Judge Phillips cited Lawrence v. Texas, the 2003 case where the Supreme Court struck down the Texas law criminalizing consensual sex between two people of the same sex. In Lawrence, the Court held that intimate consensual sex is part of the fundamental constitutional right to privacy.
Since a fundamental constitutional right is at stake, Judge Phillips analyzed DADT using a higher level of scrutiny than rational basis: In order for DADT to stand, (1) it must advance an important governmental interest, (2) the intrusion on constitutionally protected intimate conduct must significantly further that interest, and (3) the intrusion must be necessary to further that interest.
Recognizing that judicial deference to Congress is traditionally highest in the context of legislation regulating the military, Judge Phillips correctly noted that "deference does not mean abdication." She carefully examined the evidence provided by the government and found that the Administration failed to demonstrate that DADT significantly furthers the government's interests in military readiness or unit cohesion, the second prong of the constitutional analysis.
Furthermore, the evidence presented by the plaintiffs demonstrated that DADT actually frustrates military readiness and unit cohesion: Qualified servicemembers are discharged under DADT during wartime troop shortages (the same shortage that pressures the military to ramp up "moral waivers" to admit far less qualified convicted felons); servicemembers with critically needed skills and training are discharged; DADT hurts recruiting efforts; and DADT diminishes the otherwise merit-based nature of the military.
Judge Phillips also cited damning evidence that the military doesn't believe its own propaganda about DADT:
Defendants routinely delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments. . This evidence, in particular, directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct. If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation.
Judge Phillips is right: DADT makes no sense and it violates the Constitution. The House of Representatives has already voted to consign this discriminatory policy to the ash heap of history. It's time for the Senate to do the same and send a bill to the President's desk.
Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.
Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling it “activism.”
On Monday, People For the American Way Foundation signed on to an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision to enforce a section of the Immigration and Nationality Act that imposes a greater residency requirement for unmarried citizen fathers to transfer citizenship to their children born abroad than on unmarried citizen mothers.
The statute permits unmarried citizen fathers to transmit citizenship only if they have lived in the U.S. prior to the child’s birth for ten years, five of them after the age of 14. Mothers, on the other hand, are only required to have lived in the U.S. for just one year prior to the child’s birth. The petitioner’s father was 16 when his son was born, making it impossible for him to meet the requirement of five years of residency after age 14. Mr. Flores-Villar filed suit on the grounds that the law violates the equal protection component of the Fifth Amendment’s due process clause.
PFAWF’s brief, authored by the National Womens’ Law Center, argues that such gender-based discrimination perpetuates the old stereotype that unwed fathers have less meaningful relationships with their children than do unwed mothers, and the Supreme Court has rejected the use of such stereotypes in justifying gender-based classifications. The classifications also do nothing to further the government’s stated objective of encouraging parent-child relationships, and in countries where citizenship is derived from the father, would render stateless the children of fathers who cannot meet the requirements.
If the Supreme Court were to uphold the Ninth Circuit’s decision, it would be ignoring over 30 years of Equal Protection jurisprudence to enforce a discriminatory law that perpetuates outdated stereotypes and is harmful to family relationships.
“[C]ivil libertarians and even experienced FBI interrogators argue,” Serwer writes, “that attempting to modify Miranda would be a political solution to a national security problem that doesn't exist.”
Conservative criticism of Miranda itself has had a dramatic effect, which can be seen in the administration's handling of the Times Square attempt. Testifying before a Senate subcommittee on May 6, Holder said Shahzad had been questioned for "hours" under the public-safety exception before being read his Miranda rights. According to the administration, he also waived his right to be brought before a judge and so was questioned for two weeks before seeing the inside of a court on Tuesday.
After Holder announced the administration sought to change the rules around Miranda, The New York Times reported that the administration also wanted to be able to prolong the time that law enforcement can detain a suspect before bringing him or her before a judge, generally 72 hours. Under the PATRIOT Act, law enforcement can actually get an extension -- in the case of a non-citizen -- as long as seven days. The administration's position on Miranda represents a reversal from its previous position, supported by veteran FBI national security officials like Ali Soufan, Jack Cloonan, and Joe Navarro, that law-enforcement procedures don't interfere with intelligence gathering.
Serwer’s full piece is worth a read.
This week, People For joined 34 other progressive organizations in sending a letter to Holder urging him to reconsider the proposed move. “Weakening Miranda,” the groups wrote, “would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
A coalition of 35 progressive organizations, including People For the American Way, sent a letter to Attorney General Eric Holder this morning urging him to reconsider his stance on weakening Miranda rights. Holder has said the Obama Administration is open to expanding the “public safety exception,” which allows officers in exceptional circumstances to question suspects before reading them their rights. The coalition, led by the National Association of Criminal Defense Lawyers, argues, “Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
As you know, the Supreme Court crafted the "public safety exception" to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when "reasonably prompted by a concern for public safety." It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.
Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”
In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.
Read the full letter here.
This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.
In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.
In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Post reports:
Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.
[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...
[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.
Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?
When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"
[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...
If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?
The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.
Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.
So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.