Judge Says No Right to Homosexuality in Armed Forces as Appeals Court Tosses Log Cabin Lawsuit

From the AP report:

One of the three panelists, Judge Diarmuid O’Scannlain, went out of his way in a concurring opinion to dispute that either the U.S. Constitution or the Supreme Court’s interpretation of it provided “a member of the armed forces (with) a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military.”

O’Scannlain also criticized the lower court judge who invalidated “don’t ask, don’t tell” last year, U.S. District Judge Virginia Phillips. He accused Phillips of willfully failing “to apply established law” so she could issue a ruling “that invalidated a considered congressional policy and imposed a wholly novel view of constitutional liberty on the entire United States.”

Per the usual, the Log Cabin Republicans put their pro-homosexuality activism way ahead of loyalty to the conservative Republican Party platform. (After all, for homosexual activists, it’s all about “me.”) The question now is: will the same conservative Republicans and GOP candidates who rightly pledge to repeal Obama-care also work to reinstate the homosexual military exclusion policy – or will they capitulate to the Left’s (and libertarians’) radical social agenda for the Armed Forces? If they surrender, pro-homosexual “diversity” policies will turn the Pentagon into massive “gay rights” bureaucracy that undermines religious freedom and the very conservative values that make our military strong. We shall see. — Peter LaBarbera, www.aftah.org

Excerpted from the Sept. 29, 2011 Associated Press article by Lisa Leff (emphasis added):

Appeals court tosses gays in military lawsuit

SAN FRANCISCO (AP) — A federal appeals court refused Thursday to decide the constitutionality of the military’s now-repealed “don’t ask, don’t tell” policy banning openly gay troops, saying the issue has been resolved since Americans can enlist and serve in the armed forces without regard to sexual orientation.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco tossed out a lawsuit that had challenged the military policy as a violation of gay service members’ civil rights. In doing so, the appeals court also dismissed a Southern California trial judge’s year-old ruling that the policy was unconstitutional.

The gay rights group Log Cabin Republicans filed the lawsuit in 2004 challenging the policy. The group’s lawyer, Dan Woods, said he would ask the full 9th Circuit to review the panel’s decision.

The group recently argued the lower court ruling, which also barred enforcement of “don’t ask, don’t tell” should remain in effect despite this month’s repeal because future administrations and lawmakers could reintroduce a ban on gay service.

The three judges strongly disagreed in their Thursday opinion, saying the case is moot because there is nothing left to challenge regarding the policy enacted as section 654….

The panel specifically rejected Log Cabins’ assertion that the appeals court should decide the underlying constitutional issues to prevent future limitations or outright bans on military service by gay and lesbian Americans….

Log Cabin Republicans Executive Director R. Clarke Cooper said he was disappointed, noting that the favorable ruling his group obtained in the lower court played a major role in persuading policy makers to repeal “don’t ask, don’t tell.”

Log Cabin Republicans v. United States said more than `don’t ask, don’t tell’ should be repealed – it stood for the fundamental constitutional rights of service members not to be discriminated against by the nation they serve,” Cooper said. “This decision by the 9th Circuit denies more than 14,000 discharged gay and lesbian service members an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of service members’ rights.”

One of the three panelists, Judge Diarmuid O’Scannlain, went out of his way in a concurring opinion to dispute that either the U.S. Constitution or the Supreme Court’s interpretation of it provided “a member of the armed forces (with) a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military.”

O’Scannlain also criticized the lower court judge who invalidated “don’t ask, don’t tell” last year, U.S. District Judge Virginia Phillips. He accused Phillips of willfully failing “to apply established law” so she could issue a ruling “that invalidated a considered congressional policy and imposed a wholly novel view of constitutional liberty on the entire United States.”