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Exclusive Analysis: DADT Judge Establishes High Hurdle For Obama’s DOJ

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Judge Rules DADT Military Speech Content-Based. Decision Establishes Constitutional Legal Scrutiny Under First Amendment—High Hurdle for Obama’s DOJ to Overcome.

EXCLUSIVE ANALYSIS — By Tanya Domi

Editor’s note: Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University and served fifteen years in the U.S. Army. She is a regular contributor to The New Civil Rights Movement.

NEW YORK, Oct. 12, 2010—Judge Virginia Phillips of the Federal District Court in Riverside, California issued an order today to the Obama Administration to immediately cease enforcement of the disputed “Don’t Ask, Don’t Tell” law—including investigations and discharges.

In an incisive and sweeping decision that arguably takes the heart out of “Don’t Ask, Don’t Tell” (DADT), Judge Phillips found that the government does not have the constitutional right, even in the military, to restrict or punish service members who engage in protected acts of speech, including identifying themselves as being gay.

Judge Phillips wrote in her review while recognizing the legally established rule of deference by the courts to the military, permitting some restrictions on military speech, that DADT did not survive “constitutional scrutiny” because it “has a sweeping reach of the restrictions of speech contained in the statute which are far broader than is reasonably necessary to protect the substantial government interest.”

In a damning litany, Phillips cited numerous examples of how DADT prevented plaintiff witnesses Michael Almy and Anthony Loverde from discussing their personal lives or comfortably socializing off-duty with their respective colleagues. Jenny Kopfstein, another plaintiff witness, testified that DADT made it impossible for her to respond to mundane questions from shipmates about how she spent her leisure time away from duty without revealing the existence of her partner.

In bolstering her decision through these examples, Judge Phillips asserted that DADT’s “restrictions on speech not only are broader than reasonably necessary to protect the government’s substantial interest,” but also actually “serve to impede military readiness and unit cohesion, that than further these goals.”

Indeed, Judge Phillips makes a specific point in the decision to assert the chilling effect that DADT had on the speech and actions of plaintiffs Alex Nicolson and Joseph Rocha, who were consequently afraid to bring violations of military policy or codes of conduct to the attention of the chain-of-command. In their testimony, Nicholson and Anthony Loverde also acknowledged the similar chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts.

Furthermore, Judge Phillips expressly pointed to additional acts of repressed speech which include prohibitions on openly joining organizations who advocate the repeal DADT, such as Log Cabin Republicans; writing personal letters, even in a foreign language to a person of the same-sex whom they had had an intimate relationship with before joining the military; and certain discharge for confiscation of private emails to family and friends that may reveal their sexual orientation, when heterosexuals are exempt from such punitive scrutiny.

Phillips also ruled that the government did not meet the Witt Standard with respect to its policy of prohibiting openly gay soldiers based upon a long maintained rationale of “unit cohesion and military readiness.” She ruled that DADT does not further the significant interests of the government. In fact, she asserts the government actually delays discharges based upon sexual orientation when individuals are judged to be necessary, especially when deployed in combat locations.

The Lawrence Supreme Court decision was cited by Judge Phillips on numerous occasions, but most decisively with respect to “constitutionally recognized substantive due process rights associated with the autonomy of self that includes freedom of thought, belief and expression.” Lawrence portends to be a significant decision in all-future cases involving LGBT rights.

Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.

Domi has worked in a dozen countries. Prior to working abroad, she became a nationally known LGBT rights activist in the United States as the legislative director and military freedom initiative director at the National Gay and Lesbian Task Force, where she worked to repeal the ban on lesbians and gays who served in the military and was directly involved in drafting and original introduction of the Employment Non-Discrimination Act in 1994. She has been actively involved in the effort to repeal DADT during the past two years as a blogger and speaker, with expertise as a result of her 15 years of service in the U.S. Army as an enlisted soldier and commissioned officer.

Domi has a Masters of Arts in Human Rights from Columbia University, with a regional specialty in East Central Europe and The Balkans.

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RELIGIOUS EXTREMISM

Catholic Archbishop Defies Vatican by Banning Speaker Nancy Pelosi From Holy Communion – via Twitter

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Calling her stance on abortion a “most serious scandal,” and a “grave evil” San Francisco Archbishop Salvatore Cordileone publicly announced Friday that Speaker of the House Nancy Pelosi, whose district encompasses his diocese, is now banned from taking Holy Communion.

Archbishop Cordileone, a far right activist who repeatedly has challenged Pope Francis, is now in violation of directions from the Vatican to not politicize the Sacraments. Cordileone’s very public decree – made via Twitter – comes just weeks before the U.S. Supreme Court is set to rule on a case that is expected to overturn Roe v. Wade.

“After numerous attempts to speak with Speaker Pelosi to help her understand the grave evil she is perpetrating, the scandal she is causing, an the danger to her own soul she is risking, I have determined that she is not to be admitted to Holy Communion,” Cordileone tweeted, an apparent attempt to embarrass to the greatest degree possible the Democrat who is second in line to the Presidency,

“I am hereby notifying you that you are not to present yourself for Holy Communion and, should you do so, you are not to be admitted to Holy Communion, until such time as you publically [sic] repudiate your advocacy for the legitimacy of abortion and confess and receive absolution of this grave sin in the sacrament of Penance,” Cordileone wrote in that letter to the Speaker.

Fox News calls it “an escalation in a decades-long tension between the Roman Catholic Church and liberal Democratic politicians on abortion,” but in fact other extremist archbishops have taken the same stance against other notable Democrats.

Catholics believe the Pope is God’s infallible representative on earth. Last fall Pope Francis chastised far right Catholic bishops in America who were gearing up to ban President Joe Biden from receiving Holy Communion. In June the U.S. Conference of Catholic Bishops (USCCB) overwhelmingly voted to move toward chastising Biden for his abortion stance, despite the Vatican issuing a clear warning they were not to do so.

President Biden is a devout Catholic who personally opposes abortion but knows as President it is his role to uphold a woman’s right to choose, something has has worked strongly to support and strongly believes in.

“What must the pastor do?” Pope Francis said, The New York Times reported last September when a reporter asked him about President Biden and abortion. “Be a pastor, don’t go condemning. Be a pastor, because he is a pastor also for the excommunicated.”

“I have never refused the eucharist to anyone,” Pope Francis told reporters. The Times aded Francis said bishops should be pastors not politicians.

The Pope also told reporters, “communion is not a prize for the perfect,” and “the eucharist is not the reward of saints but the bread of sinners.”

The San Francisco Chronicle adds that Pope Francis “welcomed Biden for a private meeting at the Vatican last fall and Biden said the Pope told him he was a ‘good Catholic.’ Biden received Communion at St. Peter’s during that trip.”

 

This is a breaking news and developing story. Details may change. 

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COMMENTARY

‘Sordid, Corrupt, Lawless’: Experts Call New Ginni Thomas Revelations ‘Breathtaking’ and Ask ‘What Did Her Husband Know?’

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The latest revelations about the actions of Ginni Thomas, the far right wing activist, lobbyist, and spouse of a sitting U.S. Supreme Court justice who had unprecedented access to the Trump White House are leading experts to demand Clarence Thomas’ recusal while calling the combination of their actions “breathtaking corruption,” and noting the Justice’s extraordinary hypocrisy.

Later Friday morning The Washington Post reported that Ginni Thomas pressed two Arizona lawmakers to overturn the will of Arizona’s voters in the 2020 presidential election by choosing a “clean” slate of electors, representing Donald Trump and not Joe Biden. The Post notes Thomas did not mention any candidate by name but reports “the context was clear.”

“Before you choose your state’s Electors … consider what will happen to the nation we all love if you don’t stand up and lead,” an email bearing Ginni Thomas’ name, sent to the Arizona lawmakers, reads.

It included a link to a video of a man delivering a message meant for swing-state lawmakers, urging them to “put things right” and “not give in to cowardice.”

“You have only hours to act,” said the speaker, who is not identified in the video.

Thomas also pressed Trump White House chief of staff Mark Meadows to work to overturn the election, as has been widely reported.

Her efforts, combined with Justice Thomas’ actions on the Supreme Court, amount to “breathtaking corruption,” writes Slate’s legal expert Mark Joseph Stern.

“The conflict of interest between Ginni and Clarence Thomas has never been greater. While Clarence was applying the ‘independent state legislature doctrine’ from the bench, Ginni was using the exact same theory to try to overturn the 2020 election. Just breathtaking corruption,” Stern says.

He adds:

Former federal prosecutor Joyce Vance, now an NBC News/MSNBC legal analyst and law professor, issued a strong warning:

“Either Justice Thomas recuses in every case that comes to the Court where his wife is heavily involved in the action or the public’s confidence in the Court will be damaged beyond repair.”

Reuters reporter covering the U.S. Supreme Court, Lawrence Hurley:

Former federal corruption prosecutor Noah Bookbinder, who is president of Citizens for Responsibility and Ethics in Washington (CREW) says it is “outrageous” Justice Thomas has refused to recuse:

“New evidence that Ginni Thomas’s participation in efforts to overturn the 2020 election was even greater than we knew; in this case pressure on AZ legislators to overturn that state’s vote. Makes it even more outrageous that Justice Thomas did not recuse.”

“Wow!” exclaimed Pulitzer Prize winning journalist and former New York Times columnist Nicholas Kristof. “Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, pressed Arizona legislators to overturn Biden’s win and choose a ‘clean slate of electors.’ In other words, she supported a coup to overthrow an elected president. What did her husband know?”

Economist and frequent political commentator David Rothschild observes, “Ginni Thomas was conspiring with high ranking Republicans to overturn [the] republic, and her husband was either privy to or actively involved in this conspiracy before using his position to coverup his wife’s role.”

Former SDNY Asst. U.S. Attorney Richard Signorelli sums up:

 

Image by Gage Skidmore via Flickr and a CC license

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BREAKING NEWS

Ginni Thomas Also Pressed Arizona Lawmakers to Overturn 2020 Election: ‘Stand Strong’

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Far right wing activist, lobbyist, and spouse of a U.S. Supreme Court justice, Ginni Thomas pressed lawmakers in Arizona to overturn the results of the 2020 presidential election. In emails she urged them to “stand strong in the face of political and media pressure,” and send a “clean slate” of electors, falsely claiming the choice is “yours and yours alone.”

“The emails, sent by Ginni Thomas to a pair of lawmakers on Nov. 9, 2020, argued that legislators needed to intervene because the vote had been marred by fraud. Though she did not mention either candidate by name, the context was clear,” reports The Washington Post, which broke the news Friday. “In sending the emails, Thomas played a role in the extraordinary scheme to keep Trump in office by substituting the will of legislatures for the will of voters.”

Thomas also pressed then-White House chief of staff Mark Meadows to overturn the election in an exchange of text messages that spanned several months.

Justice Clarence Thomas has also come under fire for not recusing himself in matters related to his wife’s actions.

This is a breaking news and developing story. Details may change. 

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