Exclusive Analysis: DADT Judge Establishes High Hurdle For Obama’s DOJ
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.â€
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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President Donald Trump is promising mass pardons to White House staff, and has done so repeatedly, the Wall Street Journal reports.
“I’ll pardon everyone who has come within 200 feet of the Oval,” Trump said in a recent meeting, to laughs, the Journal reported, citing people familiar.
“That radius,” the Journal added, “appears to be expanding as the president repeats the line. Another person who met with Trump earlier this year said the president quipped about pardoning anyone who had come within 10 feet.”
Trump at one point said he would hold a news conference to announce the mass pardons.
“The president has repeatedly raised the specter of pardons with White House aides and other administration officials, particularly when staff have suggested they could face prosecution or congressional investigations over decisions, people familiar with the comments said,” the Journal reported.
The Journal did not state if the pardons would be blanket pardons, but reported that those familiar with his remarks “said they weren’t aware of specific pardons being offered to specific people for specific acts.”
READ MORE: White House Fires Back After President’s Doctor Is Asked to Test Trump’s Mental Fitness
The report also noted that Trump has often seriously pursued actions he initially had joked about.
“It seems like he previewed many times his intent to use the pardon power to bail out those who carry out his agenda faithfully,” Liz Oyer, a former Trump Justice Department pardon attorney told the Journal. She also “said the offers could spur Cabinet officials and administration officials to behave more aggressively.”
While Trump did not pardon White House or other officials in conjunction with the events of January 6, 2021, on his first day back in office he did issue sweeping pardons to roughly 1,500 of those who were at the Capitol that day and later arrested.
READ MORE: ‘Only Reason They Are Alive’: Trump Again Threatens Iran in Unhinged Truth Social Post
Image via Reuters
The White House is fighting back after a prominent House Democrat demanded that the Physician to the President test Donald Trump’s mental fitness, citing the president’s recent remarks.
“At a time when our country is at war—especially when the war was initiated by the President without congressional declaration or consent—the American people must be able to trust that the Commander-in-Chief has the mental capacity to discharge the essential duties of his office,” Judiciary Committee Ranking Member Jamie Raskin wrote to the President’s Physician, Captain Sean P. Barbabella, D.O., in a letter published by Punchbowl News.
“I therefore request that you conduct a comprehensive cognitive assessment of President Donald Trump, provide those results to Congress, and make yourself available to brief Congress on your findings.”
Congressman Raskin noted that experts “have repeatedly warned that the President has been exhibiting signs consistent with dementia and cognitive decline.”
“And, in recent days, the country has watched President Trump’s public statements and outbursts turn increasingly incoherent, volatile, profane, deranged, and threatening. His apparently deteriorating condition has caused tremendous alarm across the nation (and political spectrum) about the President’s cognitive function and continuing mental fitness for the office of President, and prompted concerns about the President’s well-being.”
Raskin noted that during the Biden presidency, Oversight Committee Chairman James Comer called President Biden’s mental acuity “one of the greatest scandals in our nation’s history,” and subpoenaed the White House Physician.
He also noted that during that time, Judiciary Committee Chairman Jim Jordan declared that a president who is not cognitively fit, “isn’t fit for office.”
Raskin offered some examples, including Trump’s recent message to Iran, which the Congressman described as combining “vulgarity and profanity, unprecedented threats of mass civilian destruction, and a sarcastic invocation of Islam on Easter morning—a bizarre display that shocked tens of millions of Americans and astonished observers across the political spectrum.”
Trump had written: “Tuesday will be Power Plant Day, and Bridge Day, all wrapped up in one, in Iran. There will be nothing like it!!! Open the F——’ Strait, you crazy b——, or you’ll be living in Hell – JUST WATCH! Praise be to Allah.”
The New York Times had described Trump’s remarks as a “blistering threat” that “would have stood out on any day, much less on what most Christians consider the holiest day of the year.”
Raskin is insisting that Dr. Barbabella conduct “a comprehensive neuropsychological assessment of the President, including a formal cognitive screening instrument, and publicly release the results.”
Also, it asks him to provide “a detailed report on the President’s current mental and physical health status, including any medications he is currently taking and their potential,” and make himself available for a briefing under oath.
The White House wasted no time in responding, telling Courthouse News’ Benjamin S. Weiss: “Lightweight Jamie Raskin is a stupid person’s idea of a smart person.”
“President Trump’s sharpness, unmatched energy, and historic accessibility stand in stark contrast to what we saw during the past four years when Democrats like Raskin intentionally covered up Joe Biden’s serious mental and physical decline from the American people,” the White House added.
Image via Reuters
Ahead of diplomatic talks starting Saturday, President Donald Trump once again threatened Iran with violence as critics charge his tenuous cease-fire has fallen apart.
“As Vice President JD Vance was heading to Pakistan on Friday for peace talks with Iran, a senior Iranian official laid out new conditions for the negotiations, adding even more uncertainty about the durability of the cease-fire and whether the two sides could reach a long-term deal,” The New York Times reports, noting that President Trump “warned Tehran not to overplay its hand.”
“The Iranians don’t seem to realize they have no cards, other than a short term extortion of the World by using International Waterways,” the President wrote on Truth Social.
“The only reason they are alive today is to negotiate!” he declared.
His remarks seemed to echo his highly-criticized comments earlier this week:
“A whole civilization will die tonight, never to be brought back again. I don’t want that to happen, but it probably will.”
On April 1, Trump wrote, “we are blasting Iran into oblivion or, as they say, back to the Stone Ages!!!”
Some ridiculed the president.
“Completely controlling the Strait of Hormuz and charging ships a $2 million toll to pass through seem to be a couple of pretty good cards,” noted attorney Adam Cohen.
Reason’s Matthew Petti added, “You might say that Iran’s only cards are…a strait flush.”
Image via Reuters
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