Don't Ask Don't Tell Repeal

[tmpressure]

Hey guys,

I know that this was done a while ago, but I only recently stumbled on this site and thought I would get a more professional take on this than what I get from my normal message boards.

(I also know that this was taken care of by congress, but this is more of a philosophical [maybe jurisdictional?] question than a question of politics or beliefs)

Here is the question, now that my preamble is finished...when the civilian court ruled that DADT was unconstitutional, how was that within their bounds?

If the military has its own separate judiciary, where is the call for a civil court to be able to mandate their policy? I have heard that the civil court has appellate authority over the military justice system, so was it done on a basis of appeals?

And if not, what is to stop them from trying to legislate more from the bench, and start calling out other military decisions as unconstitutional as they see fit? e.g. "This war in Afghanistan is unconstitutional, so you guys need to get out"

Obviously that is an extreme example, but I am just using it to illustrate my point.

I am not a lawyer, so though I can research strands, I can't see the whole web. I feel like I have to be missing something or more people would jump up and say,"Hey the civil courts don't have the authority to dictate military policy."

And again, this isn't about for or against DADT, just the logistics of how it was accomplished, and whether or not this is a foreshadowing of a dangerous path to begin walking.

Thanks guys!

 

[mercurial7]

An attempt at a helpful response.

Hi there. I realize this is my first post, but this caught my eye.
I also am not a lawyer, but i have done some study into this area. As I understand it, the reason why a civilian court was able to strike down a military policy is that that policy was brought up as being in violation with the constitutional rights of the citizens of the United States of America. Military courts govern disciplinary issues for military personnel, and the legality of military policy. However, they do not hold jurisdiction over the constitutionality of policies or actions of any branch of the united states government. that power, by tradition, lies in the Supreme Court. Since the policy concerned discrimination against people specifically because of their sexuality carried out by a government agency, it fell into the domain of the supreme court. However, the supreme court could not decide that a declaration of war was unconstitutional unless the method by which war was declared violated the process set forth in the constitution. in addition, the supreme court also is the highest civilian court, so if a civilian brought a case against another civilian, it could go to the supreme court. if a civilian brought a case against a military personnel acting as a member of the U.S. military, however, the case would be brought up in military court.
Basically, the Supreme court only gets involved in military policy if citizens bring a civil suit against the u.s. military for something that impinges on their constitutional rights. for example, the supreme court also would have the power to prevent any millitary policy which entailed the quartering of soldiers in civilian homes, but not if the millitary invaded a foreign nation with the approval of congress and the president acting as the commander in chief.

I hope this helps somewhat.

 

[Proserpina]

Well, that was one impressive first post, mercurial!


(If somewhat...old - posting to old threads isn't generally encouraged )