Homosexuality and Military Service (Merged thread)

[selil]

That said it looks like Men who have Sex with Men (MSM in CDC terminology) had 10x the rate of gonorrhea that the rest of the population had. Or do you have a different interpretation of this data?

The issue is with the assumption of the sample sizes and the comparison between samples. All variables being the same you would appear to be correct, but the variables are not consistent between the samples selected.

Blatant example of hidden variables. Imagine if you were looking at alcoholism of blue collar mill workers, and alcoholism of white collar bankers. You might find a ten fold difference between the samples, but if one sample population was New York (Bankers) and the mill workers were (Detroit) the variability between the samples would be highly suspect.

We have to be very careful when trying to make correlative assessment and especially causative assessments based on these type of studies.

[Brihard]

Motorfirebox - let me restate my contention. I think there is reason to believe that common homosexual behaviors pose at least as great a health risk as overeating. I think the CDC report points to the dangers of homosexual behavior. Yet soldiers are discharged for overeating but homosexuality has become more or less a protected behavior in the military. The mainstream media does not cover the health problems associated with homosexual behavior because it deosn't fit with the cause celeb that affirmation of homosexuality has become for the media/Hollywood.

Your analogy is suspect. Are soldiers discharged for overeating, or are they discharged for being fat and unable to meet the physical demands of the job? My understanding is a soldier can eat as much of whatever he wants, as long as he meets the standards of fitness and of body fat % required.

Let's say we accept the highest figure you've offered here for gonorrhoea prevalence amongst homosexuals- 475/100,000 MSM, or 0.47%. So a bit under one in every two hundred

If we began running a list of all risky behaviours and eliminating form candidacy for membership in the armed forces every person engaging in risky behaviour that has a 1/200 chance of something bad happening, there'd be problems. Odds of alcohol dependency amongst people who drink are substantially higher than 1/200. Smoking has a host of related cancers and health concerns.

At some point people must be accountable for their own actions and for mitigating the risks they take. Would we exclude 200 smokers because one will eventually get lung cancer (arguably a more serious medical condition than the clap)? Would we allow nobody who drank to join the military, even though some will develop dependencies, or get DUIs?

The numbers you state also indicate that about 99.5% of 'MSM' homosexuals are pretty careful about their behaviour. I would venture to guess that if all 'MSM' homosexuals were subcategorized into groups based on lifestyle patterns, probably there would be a disproportionate concentration of STD cases in a much smaller subset, just as there is in the rest of society. Not every homosexual is going out to gay swingers' bars on the weekend and hooking up with whomever.

If a soldier gets fat, or if a soldier gets drunk, or if a soldier gets an STD, those are all valid reasons for the chain of command to take action to curb that soldier's behavioural excesses in whatever soldier. To collectively punish everybody who might share and arbitrary attribute with that soldier because he does something stupid does not make sense. If I had one fat soldier, I'd still let the rest eat cake. If one of them gets a DUI, I'll not tell the rest they can no longer go to the mess after work. It's funny to see risk aversion used as an argument against homosexuals being allowed in the military though.

[DVC]

Are soldiers discharged for overeating, or are they discharged for being fat and unable to meet the physical demands of the job?

Brihard, I somewhat liked my analogy. In the U.S. Army, soldiers can be discharged for being fat even if they are able to meet the physical demands of the job. Homosexuality is a fashionable cause. Who's out campaigning to end fat-o-phobia?

[Brihard]

Who's out campaigning to end fat-o-phobia?

..the Navy? :D

[DVC]

..the Navy? :D
Touche'

[motorfirebox]

The 13th, 14th and 15th Amendments abolished the evil of slavery. The 19th Amendment established the vote for women. What amendment has made homosexual behavior normal and natural in the sight of the law or codified a changed view of this behavior from that held by the Founders and by extension their constituents?
Such an amendment is unnecessary, unless you can show the Constitutional provision that restricts gay rights.

[DVC]

Such an amendment is unnecessary, unless you can show the Constitutional provision that restricts gay rights.

SCOTUS (Lawrence v. Texas) threw out civilian sodomy laws by creating a new, previously unknown constitutional right to sexual behavior, as long as it was consensual and between adults.

The Founders, for example Washington and Jefferson, seemed to view sodomy as a crime. If they thought buggery was a basic human right worthy of protection against state interference, it seems they would have included it in the Bill of Rights. By comparison, many states had established religions and religious requirements mandated by law at the time of the drafting of the Constitution. The majority of Founders, including some very devout ones, found this objectionable, thus the religion clause in the first amendment.

So after 200 years, homosexual behavior, which had been held criminal at the time of the Constitution (Jefferson apparently wrote part of the Virginia criminal code that included sodomy as a crime) and ever since, suddenly becomes a constitutionally protected right. In my book for this to happen, should have taken a Constitutional amendment.

[Fuchs]

This is part of the reason why people go to study law before they become judges.

There are different theories for the interpretation of legal norms of any kind.

One legal theory is to attempt to meet the intent of those who powered the legal norm (such as the representatives and states which wrote an amendment). That's what you use and pretty much how AQ interprets the Qu'ran.

Another legal theory interprets legal norms as if they were written in our time. This one allows for changes of interpretation and is afaik the relevant legal theory, which has been used in the SCOTUS for generations (the right to bear arms would otherwise be limited to blackpowder weapons). It's also how enlightened Christians interpret the Bible (really, we don't stone people to death for almost everything although it's required in the Old testament).

[DVC]

This is part of the reason why people go to study law before they become judges.

There are different theories for the interpretation of legal norms of any kind.

One legal theory is to attempt to meet the intent of those who powered the legal norm (such as the representatives and states which wrote an amendment). That's what you use and pretty much how AQ interprets the Qu'ran.

Another legal theory interprets legal norms as if they were written in our time. This one allows for changes of interpretation and is afaik the relevant legal theory, which has been used in the SCOTUS for generations (the right to bear arms would otherwise be limited to blackpowder weapons). It's also how enlightened Christians interpret the Bible (really, we don't stone people to death for almost everything although it's required in the Old testament).


Fuchs - I think the first legal theory you point to is called originalism or textualism and the leading proponent on SCOTUS is Antonin Scalia and it seems to follow the basic lines of the Constitution means what is says and if it is silent on an issue, the issue should be left to the legislature.

The competing theory or theories I think are called "Living Constitution" approach this means IMHO that the Constitution should be interpreted according to current norms, mores, and sensibilities.

I know if I am party to a contract, and I am in regards to the Constitution as a U.S. citizen, I don't want it changed because one party unilaterally wants to make it fit their norms, mores and sensibilities. Capital punishment is a classic example. It was used fairly frequently at the time of the Constitution's ratification so how dare a modern court say it is unconstitutional today in and of itself unless the Constitution is amended to say what is formerly legal is now unconstitutional.

SCOTUS split 6-3 on the Lawrence. The majority appears to have followed some sort of living constitution approach finding that homosexual conduct was now a basic human right after being criminalized in most of the U.S. since before the ratification of the Constitution. The minority led by Scalia basically said the majority had feces for legal brains.

RE Christians and stoning. Christians don't stone and haven't, not because of some shifting modern interpretation of the Scriptures but because the New Covenant (Testament) has replaced the Old Covenant(Testament) and the Church's mission is to lead others to Christ, not to enforce societal order. That is the government's job.

Fuchs, have you ever read the New Testament? Cover to cover, not just bits and pieces? In your country, I believe those who called themselves Christians but interpreted the Scripture as though it was written in their time (1930s) ended up cravenly supporting Hitler. Many of the German Christians who took the New Testament as an unchanging guide, like Bonhoeffer, resisted Hitler and paid the price.

[motorfirebox]

SCOTUS (Lawrence v. Texas) threw out civilian sodomy laws by creating a new, previously unknown constitutional right to sexual behavior, as long as it was consensual and between adults.

The Founders, for example Washington and Jefferson, seemed to view sodomy as a crime. If they thought buggery was a basic human right worthy of protection against state interference, it seems they would have included it in the Bill of Rights. By comparison, many states had established religions and religious requirements mandated by law at the time of the drafting of the Constitution. The majority of Founders, including some very devout ones, found this objectionable, thus the religion clause in the first amendment.

So after 200 years, homosexual behavior, which had been held criminal at the time of the Constitution (Jefferson apparently wrote part of the Virginia criminal code that included sodomy as a crime) and ever since, suddenly becomes a constitutionally protected right. In my book for this to happen, should have taken a Constitutional amendment.
Let me clarify. Such an amendment is unnecessary unless you can show a provision in the Constitution restricting gay rights. Such provisions exist restricting the rights of blacks (or, well, restricting the rights of slaves, which wasn't quite the same thing even back then but close enough) and women (through omission). That's a big part of why there are Constitutional amendments on those matters. So far as I'm aware--and I've looked--there's no such restriction on gay rights, even so far as any statement in the Constitution about sodomy. All such restrictions are in local and federal law, and can be dealt with in the same arena without making another addition to the Constitution.

[J Wolfsberger]

SCOTUS (Lawrence v. Texas) threw out civilian sodomy laws by creating a new, previously unknown constitutional right to sexual behavior, as long as it was consensual and between adults.


If I recall correctly, this was decided on the basis of privacy rights. IMHO, that was a mistake. I think the decision was correct, but the basis should have been that the state never has any right to interfere in any voluntary interaction between two consenting adults.

[jmm99]

You know what you really mean - and I probably know what you really mean; but this doesn't express it:


... the state never has any right to interfere in any voluntary interaction between two consenting adults ....

You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?

The difficulty in this and other legal areas is to phrase the rule - and allow for its exceptions.

The line of cases from Griswold v Connecticut (http://en.wikipedia.org/wiki/Griswold_v._Connecticut) (the 1965 birth control case), including Lawrence v Texas (http://en.wikipedia.org/wiki/Lawrence_v._Texas) and Roe v Wade (http://en.wikipedia.org/wiki/Roe_v._Wade), led us into the alchemy of "umbras", "penumbras" and even "emanations" - a topic worthy of High Gnosticism.

In actual constitutional language, the three general provisions that come closest to securing the citizen from non-specific governmental intrusions are these:


ARTICLE IV, SECTION 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

AMENDMENT XIV, SECTION 1.
... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ....

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

With the notable exception of Justice Thomas re: gun rights, these provisions have not been popular items on the dinner plates at SCOTUS - whatever the ideological slant of the justices.

Regards

Mike

[82redleg]

You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?


I'm not a lawyer, so this is not a professional legal opinion, but I don't think they do until you take some action beyond just deciding, right?

I don't think they should, because if they do, it seems to come perilously close to a thought crime.

[jmm99]

have reached a decision to rob a bank, they probably will have reached the point of either or both of (1) a conspiracy (http://en.wikipedia.org/wiki/Conspiracy_(crime)) to rob a bank or (2) an attempt (http://en.wikipedia.org/wiki/Attempt_crime) to rob a bank.

If they haven't reached that point, then they have nothing to worry about - do they.

Regards

Mike

[motorfirebox]

Er, robbing a bank is not an act between two consenting adults. The bank--the corporation that comprises it, the people in it--doesn't consent, and it's certainly a party to the transaction.

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

[Kiwigrunt]

.

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

An employer and an employee contracting out of a legally set minimum wage. Provided there is such a thing in the USA.

[tequila]

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?

[Fuchs]

@DVC:
I read the bible, the whole book, when I was young(er). I treated it like a novel, and it didn't become boring until the Apostle letters.
I don't recall any part where Jesus says that the old laws are obsolete or even offers new laws. Instead, it's an interpretation that the now nicer good doesn't want us to follow the old harsh rules any more.

--------------------------------------------------------------------------

I explain the U.S. right's preference for following the thoughts of some 18th century guys instead of interpreting the constitution as a perfectly practical strategy (probably unconscious, though).

They're conservatives, and as such they naturally prefer no change over most reform proposals (by definition). An interpretation of the constitution that supports this is naturally welcome.
The phenomenon gained much force since the 2008 elections afaik, and the reason is even more obvious:
A very restricting interpretation of the constitution gives a legal argument (false or real) against the political opponent's intents. This legal argument can even gain support if the very same right is unable to achieve its goals through the normal political process (they were a minority in both houses & had lost the WH).

It's utterly predictable that the very same people won't discuss nearly as much about how the constitution is very strict and restrictive (for example the interpretation of the "welfare" part) once they themselves are in power again.

Watch the news about two certain new congressmen and the extremely rapid legislation to fix their gaffe (four minutes of discussion, no time to read the document beforehand afaik). It's obvious how much the constitution of the U.S. has become a political partisan instrument and how much the same people who yield it aren't really serious about it when it's about themselves.



The followers who buy into such partisan strategies because some opinion multipliers told them their stories are merely political tools.


Again: A strict interpretation of the U.S. constitution based on what the writers meant would restrict the right to bear arms to blackpowder weapons and non-firearms. Is that really a reasonable interpretation?

Many simply unacceptable things would happen if Scalia's legal theory of the constitution was really followed. It's basically unworkable.


Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?

Dueling. Conspiration for a crime. Forming an organized crime or terrorist organization. Development of a private nuclear weapon, chemical weapon, biological weapon.

[JMA]

Originally Posted by Brihard http://208.101.38.56/council/images/buttons/viewpost.gif (http://208.101.38.56/council/showthread.php?p=113329#post113329)
You've said what you have to say, I've said what I have to say. Since you've chosen to interpret my words in such a way as to permit you to come after me personally based on what you perceive as my 'poor leadership' I see no percentage in continuing this. We shall have to agree to disagree.

Have a good day.

OK, we dealt with this via PM.

Back to the essence (IMHO) of the matter.

Here is a quote from WW2 German leadership doctrine:


From the youngest soldier on up, every individual must commit his entire emotional, physical, and mental strength to the mission at hand. Only this endeavor can insure the utmost efficiency of the unit in coordinated action and can create men who will, in the hour of danger, lead the weak to bold action...

... Every man is responsible, not merely for himself, but also for his comrades. The more capable and enduring must lead and direct the weak and inexperienced. Such is the basis from which a feeling of genuine comradeship may develop. This is as important between the leader and his men as it is among the men themselves.
My position is simple. Anything that can upset the delicate balance in a combat unit or create a distraction must be avoided at all costs.

... or as Gen Amos said... a “distraction” that could result in increased injuries and deaths.
__________________
-
It was the best of times, it was the worst of times...
-

[motorfirebox]

Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?
I've already stated my opinion on sex and drugs. It's not reasonable to consider a fraudulent transaction to be consenting, because the transaction that the defrauded party is consenting to is not the transaction that occurs. Criminal conspiracy, formation of terrorist organizations, and other acts which affect far more people than just those who are consenting, are by definition not acts between consenting adults. That's like saying me punching you is a consensual act because I gave my consent.

Employment below minimum wage... that counts, yeah. There might be cases where someone voluntarily works for less than minimum wage out of the goodness of their heart, but it's of no significant benefit to society to try to discern between those few cases and the vast majority of cases where the employee simply lacks the bargaining power to get a better wage.

So yes, there are some actually consensual acts the government should regulate. I'm sure if enough people throw enough darts, we can come up with more than just minimum wage. In general, though, I think the government ought to leave people alone to as large an extent as possible without allowing some people to significantly degrade the lives of other people. I can't (and wouldn't) call out anyone here on this, but: it's somewhat frustrating to me that so many of the people who cry out for smaller government also cry out for government intrusion into things they dislike.

[Bob's World]

My Army Wife Daughter-in-Law just posted this on her facebook page. (In looks like the troops are keeping it real...)

http://www.youtube.com/watch?v=6x6m-JZTrjs&feature=player_embedded#!

(PS, I love that this thread is in the "Politics in the Rear" category!)

[Ken White]

Thanks for posting that, it's priceless. :cool:

Big time Command / Leadership prob, though. Who they gonna relieve... :confused:

:D

[JMA]

... the state never has any right to interfere in any voluntary interaction between two consenting adults.

Perhaps I can suggest you insert the words as follows:

"... voluntary private non-commercial sexual interaction between two consenting adults."

[DVC]

@DVC:
I read the bible, the whole book, when I was young(er). I treated it like a novel, and it didn't become boring until the Apostle letters.
I don't recall any part where Jesus says that the old laws are obsolete or even offers new laws. Instead, it's an interpretation that the now nicer good doesn't want us to follow the old harsh rules any more.

--------------------------------------------------------------------------

I explain the U.S. right's preference for following the thoughts of some 18th century guys instead of interpreting the constitution as a perfectly practical strategy (probably unconscious, though).

They're conservatives, and as such they naturally prefer no change over most reform proposals (by definition). An interpretation of the constitution that supports this is naturally welcome.
The phenomenon gained much force since the 2008 elections afaik, and the reason is even more obvious:
A very restricting interpretation of the constitution gives a legal argument (false or real) against the political opponent's intents. This legal argument can even gain support if the very same right is unable to achieve its goals through the normal political process (they were a minority in both houses & had lost the WH).

It's utterly predictable that the very same people won't discuss nearly as much about how the constitution is very strict and restrictive (for example the interpretation of the "welfare" part) once they themselves are in power again.

Watch the news about two certain new congressmen and the extremely rapid legislation to fix their gaffe (four minutes of discussion, no time to read the document beforehand afaik). It's obvious how much the constitution of the U.S. has become a political partisan instrument and how much the same people who yield it aren't really serious about it when it's about themselves.



The followers who buy into such partisan strategies because some opinion multipliers told them their stories are merely political tools.


Again: A strict interpretation of the U.S. constitution based on what the writers meant would restrict the right to bear arms to blackpowder weapons and non-firearms. Is that really a reasonable interpretation?

Many simply unacceptable things would happen if Scalia's legal theory of the constitution was really followed. It's basically unworkable.



Dueling. Conspiration for a crime. Forming an organized crime or terrorist organization. Development of a private nuclear weapon, chemical weapon, biological weapon.

Fuchs - Thanks for your thoughtful and thorough reply.

RE: Jesus and the New Covenant.

Desgleichen auch den Kelch, nach dem Abendmahl, und sprach: Das ist der Kelch, das neue Testament in meinem Blut, das für euch vergossen wird. Lukas 22:20

RE: Role of the U.S. Constitution. I think our differences point up perhaps the differences between a U.S. and European view.

I think the priorities for the founders were a high degree of individual liberty and rule of law. The two greatest threats to this were too powerful a government and the mob. Our Constitution which provides for limited government and strong Constitution protections for minority groups and opinions, is a very good answer to these concerns, concerns which are just as valid today as in 1787. I am very glad for our Constitution, that it is written and that is very difficult to change.

Unfortunately as good as it is, I don't think it will continue to be effective for long if we continue on the current glide path. DADT is one symtom of this. I agree with John Adams who said "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." I don't think we are a moral and religious people anymore, at least in the way Adams meant.

I won't presume to describe the European approach. Better to leave that to you. I perceive it to be significantly different.

RE: Right to Keep and Bear Arms. The Second Amendment says arms not black powder or muzzle loading weapons. I'd suggest that at least one of the purposes of the Amendment was to make sure the central goverment did not have a monoply on armed capability or, in the jargon of the DDR crowd, a monopoly on the means of violence.

Cheers

[Fuchs]

Lukas 22:20 doesn't say that the old testament is obsolete. That's merely an interpretation, and not a really obvious one.


The constitution says "arms" iirc, but it's obvious that by the time of writing nobody would think of smokeless propellant firearms. To assert that the constitution writers would have been fine with including smokeless propellant firearms as well, even semi-auto and automatic weapons (nothing of which existed at their time) means to interpret the text. It means to accept the view of the law shared by those who read protection for gays and women in the constitution.


A 18th century document won't save the American dream for conservatives, and to attach much hope to it looks ill-advised to me.
A return to constitution interpretations that weren't applied for generations is not feasible anyway - the consequences would be so large (and amendments impossible in the current U.S. political climate) that the state and society could collapse and revolution (with a new constitution) could follow.
The fiscal income distribution, the many tasks of the federal government that would disappear, the disappearing income tax, disappearing federal reserve - the list of things that are under attack by right wingers for being supposedly unconstitutional (because of interpretation) has become way too long.

Reality matches with the modern constitution interpretation (of the last about three generations), not with the early 19th century interpretation.


I'm aware that conservatism serves a purpose, just like brakes and reverse gear in a car. In the end, the net movement needs to be forward, though.

Morality cannot be imposed (and is in fact depending on cultural interpretation!). The answer to immorality in a society is to develop the society towards tolerance/resilience in regard to immorality, not to push for more morality. The latter rarely works at all, and yields terrible costs.

The use of an antiquated interpretation of an old rulebook is not going to serve the society.


Maybe the U.S. should have a look at France as an example; they are in their fifth republic (http://en.wikipedia.org/wiki/French_Republics) now, and always ready to develop and adapt their constitution in response to political crisis.


I personally regret that the German politicians were too lazy to develop a new constitution in the 90's and instead adopted the old basic law as such (which was only meant as an interim solution). We could have inserted great improvements based on decades of experience and a growing readiness for more direct democracy. Well, we had a conservative government. You can't expect them to re-invent anything - it's simply not their style.

[Rex Brynen]

Maybe the U.S. should have a look at France as an example; they are in their fifth republic (http://en.wikipedia.org/wiki/French_Republics) now, and always ready to develop and adapt their constitution in response to political crisis.

I think I just heard the sound of hundreds of (American) SWJ readers simultaneously choking on their coffee... :D

[Infanteer]

(ps, i love that this thread is in the "politics in the rear" category!)

FINALLY someone said it! :D

[Fuchs]

To be honest, I expected something along those lines... :D

[Brihard]

Maybe the U.S. should have a look at France as an example; they are in their fifth republic (http://en.wikipedia.org/wiki/French_Republics) now, and always ready to develop and adapt their constitution in response to political crisis.

Wow. I totally just felt a great disturbance in the force. :p

And yeah, the 'politics in the rear' was inevitable, but I'm amazed how long that took.

[motorfirebox]

There's strong evidence within the Constitution itself that the authors intended that it, to some degree, grow and change with the times. Article 1 Section 9 prohibits Congress from restricting the slave trade--the "importation of persons", to use the exact wording--until 1808. This is pretty clearly a recognition of the fact that public views and the national sense of morality can and will--and, in the opinion of many founding fathers, should--change over time, and that the laws of the nation can and should be modified to reflect those changes.

[82redleg]

There's strong evidence within the Constitution itself that the authors intended that it, to some degree, grow and change with the times. Article 1 Section 9 prohibits Congress from restricting the slave trade--the "importation of persons", to use the exact wording--until 1808. This is pretty clearly a recognition of the fact that public views and the national sense of morality can and will--and, in the opinion of many founding fathers, should--change over time, and that the laws of the nation can and should be modified to reflect those changes.

Yes, but there is a fairly high standard for what it takes to modify the Constitution. Most of the liberal/progressive usurpation of power by the fed.gov has taken place by Congressional or judicial fiat, not the approved amendment process. The notable exception being the 16th Amendment, which allowed the income tax. Social security, Medicare and other health care, pretty much every entitlement program, agricultural subsidies, gun control, abortion, education "standards", environmental "standards", etc, (all pretty clearly outside the original scope of the federal gov't) were not implemented through an amendment to the Constitution.

[motorfirebox]

Yes, but there is a fairly high standard for what it takes to modify the Constitution. Most of the liberal/progressive usurpation of power by the fed.gov has taken place by Congressional or judicial fiat, not the approved amendment process. The notable exception being the 16th Amendment, which allowed the income tax. Social security, Medicare and other health care, pretty much every entitlement program, agricultural subsidies, gun control, abortion, education "standards", environmental "standards", etc, (all pretty clearly outside the original scope of the federal gov't) were not implemented through an amendment to the Constitution.
I absolutely agree. I argued earlier against a Constitutional amendment regarding homosexual activities. I'm just saying that if one is to stick rigidly to the opinions of the founding fathers, one has to take into account that in their opinion, the government should change to account for shifts in society.

[jmm99]

This is an observation on one methodology employed by lawyers and judges to interpret the US Constitution. I'd call it "mainstream" since it has been used in a time frame spanning John Marshall to the Warren Court - and can't be simply classified as "liberal" or "conservative" because it has been used by laywers and justices of all political leanings. Since the early 60s, it has somewhat fallen out of style as US Constitutional Law has become more and more polarized and has been shaped more and more by "true believers".

Briefly, to use that methodology, we look at the Constitution and see that some words have more or less of a "fixed meaning", or conversely a "flexible meaning" - when adopted, since adoption and in our time. We determine that by looking to the "original understanding history" (meaning or meanings when adopted) and to "ongoing history" (meaning or meanings since adoption and in our time).

Examples of "fixed meaning" words are the age requirements (Art. I, Sec. 2; Art I, Sec. 3; and Art. II, Sec. 1):


2. No person shall be a Representative who shall not have attained the age of twenty-five years...
....
3. No person shall be a Senator who shall not have attained to the age of thirty years....
...
4. ... neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years ....

While there can be some quibbling about exactly what an "age of X years" means, the words seriously limit the amount of quibbling. So, the methodology I describe would hold that those constitutional provisions can only be "changed" by the formal amendment process.

On the other hand, there are words such as "arms" in the Second Amendment and "commerce" in the Commerce Clause which can be termed "flexible words"; that is, that the "original understanding history" evidences an understanding that some change in meaning (greater or lesser from that understood in the 1780s) was contemplated to allow adaptation in the future. In that case, "ongoing history" would provide insight into what changes would be permissible within the limits evidenced by the "original understanding history".

Sometimes, the combination of the "original understanding history" with the "ongoing history" allows two different procedures to be used - both constitutional under the same clause. For example, the legislative power to "declare war" was early considered to allow either a formal declaration of war or an act of Congress (in effect, an AUMF). See, James Kent, Commentaries on American Law (1826), I-III-2 (http://www.constitution.org/jk/jk_003.htm) (extensive footnotes are in the original at link):


After the peace of Versailles, in 1763, formal declarations of war of any kind seem to have been discontinued, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized and explicitly announced by a domestic manifesto or state paper.

In the war between England and France, in 1778, the first public act on the part of the English government was recalling its minister; and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claims and conduct.

The same thing may be said of the war which broke out in 1793, and again in 1803; and, indeed, in the war of 1756, though a solemn and formal declaration of war, in the ancient style, was made in June, 1756, vigorous hostilities had been carried on between England and France for a year preceding.

In the war declared by the United States against England, in 1812, hostilities were immediately commenced on our part as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions.

But though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes.

Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.

Use of James Kent's Commentaries (the leading US legal resource of its time) illustrates what I mean by looking to the "original understanding history" and the "ongoing history" (through 1826). We can easily follow up later history with its formal declarations of war in some cases, and acts of Congress in other cases allowing the use of force, to conclude from US practice that Kent was on target and that both procedures are acceptable under the "to declare war" language.

Regards

Mike

PS: The Constitutional Society (source of Kent's Commentaries) has a wealth of original documents (as well as its own articles) at its webpage (http://www.constitution.org/). Its editorial slant is as stated, but the original documents say what they say:


If we define "constitutionalism" as a commitment to strict enforcement of a written constitution of government as it was originally understood by its framers and ratifiers, then its opposite is the doctrine and practice of "legal realism", which holds that the "law" is whatever judges do or can be expected to do, whose main tenet is the doctrine of stare decisis as presently practiced, and which is fundamentally in conflict with adherence to a written constitution.

I'd quibble with this because, to me, the written constitution is a super (and I'd say superior) form of stare decisis. The opposite to a written constitution and its stare decisis is the judicial methodology to do "social justice" in each case - where the left and right will have far different ideas of what "social justice" is.

[Rifleman]

I take the "evolving document" or "living document" (I've heard both terms) idea to mean things still read the same as they originally did but now the meaning is different, presumanbly because we as a people are now a little more enlightened and the original meaning does not suit our purposes in this day and age.

I believe the evolving document interpretation makes no sense. If the document evolves (by my definition of evolve) an amendment process is not needed - just run the country by the polls. But we have an amendment process because the founding fathers realized things would need to change from time to time, so they gave us a process by which the change was to occur.

I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;.....

I'm not bearing true faith and allegiance to something that changes in meaning everytime society decides they're now a little more enlightened.

[Brihard]

*caution* Canadian ruminating on the U.S. Constitution. *caution*

I suppose it also bears considering whether it was intended for the rights specifically enumerated in the Constitution and amendments were to be exhaustive, or whether they were simply 'fundamental', but not the entire body of right sin the nation. Clearly it can't be held that the Constitution lists all rights- the Ninth Amendment is clear on that issue. The common law has perpetuated an abundance of rights, although admittedly most have been tested and upheld on constitutional grounds.

If the list of rights in the Constitution is not to be considered exhaustive, then, I would hold that unless the Constitution explicitly limits or restricts a right, by default the issue should be decided in favour of the maximum amount of personal liberty. If the state sees a need to explicitly limit certain rights and liberties it can do so legislatively, so long as it does not run afoul of constitutional principles. But the entire American system is based, philosophically, upon maximizing individual liberty, even if it hasn't played out so well in modernity. The Fourteenth Amendment explicitly states that "No state shall deprive and person of life, liberty, or property without due process of law, ; nor deny to any person within its jurisdiction the equal protection of the laws."

So it seems fair to say that the constitution is intended to enumerate certain rights, but not to be held as exhaustive; that given ambiguity, the state should err (if the term applies) on the side of individual liberty. I'd also say that subsequent amendments have shown the Constitution to have had some oversights and to have been in need of modernization. It was pointed out earlier in this threat that the constitution explicitly excluded women and blacks due to specific wordings or omissions. There is no such explicit or even implict restriction on homosexuals, and so an amendment should not be necessary to deem constitutional protections of liberty to extend to gays.

[82redleg]

*caution* Canadian ruminating on the U.S. Constitution. *caution*

I suppose it also bears considering whether it was intended for the rights specifically enumerated in the Constitution and amendments were to be exhaustive, or whether they were simply 'fundamental', but not the entire body of right sin the nation. Clearly it can't be held that the Constitution lists all rights- the Ninth Amendment is clear on that issue. The common law has perpetuated an abundance of rights, although admittedly most have been tested and upheld on constitutional grounds.

If the list of rights in the Constitution is not to be considered exhaustive, then, I would hold that unless the Constitution explicitly limits or restricts a right, by default the issue should be decided in favour of the maximum amount of personal liberty. If the state sees a need to explicitly limit certain rights and liberties it can do so legislatively, so long as it does not run afoul of constitutional principles. But the entire American system is based, philosophically, upon maximizing individual liberty, even if it hasn't played out so well in modernity. The Fourteenth Amendment explicitly states that "No state shall deprive and person of life, liberty, or property without due process of law, ; nor deny to any person within its jurisdiction the equal protection of the laws."

So it seems fair to say that the constitution is intended to enumerate certain rights, but not to be held as exhaustive; that given ambiguity, the state should err (if the term applies) on the side of individual liberty. I'd also say that subsequent amendments have shown the Constitution to have had some oversights and to have been in need of modernization. It was pointed out earlier in this threat that the constitution explicitly excluded women and blacks due to specific wordings or omissions. There is no such explicit or even implict restriction on homosexuals, and so an amendment should not be necessary to deem constitutional protections of liberty to extend to gays.

You're correct, except that you misunderstand the fundamental limitations of the US Constitution. As originally designed, it acted as a list of restrictions on the federal gov't, only. State gov'ts were not bound by the Constitution (other than were it specifically referred to them), but by their own Constitution. Only following the 14th amendment were aspects selectively applied to the states. IMO, the 14th should be very selectively applied (it was intended to prevent state gov'ts for not recognizing the recently freed slaves, and from relegating them to the status of second class citizens). It has been expanded to prevent individuals from choosing who the choose as roommates, and to allow the idiotic phenomanon of anchor babies. Ridiculous.

[DVC]

I take the "evolving document" or "living document" (I've heard both terms) idea to mean things still read the same as they originally did but now the meaning is different, presumanbly because we as a people are now a little more enlightened and the original meaning does not suit our purposes in this day and age.

I believe the evolving document interpretation makes no sense. If the document evolves (by my definition of evolve) an amendment process is not needed - just run the country by the polls. But we have an amendment process because the founding fathers realized things would need to change from time to time, so they gave us a process by which the change was to occur.

I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;.....

I'm not bearing true faith and allegiance to something that changes in meaning everytime society decides they're now a little more enlightened.


+1. More to follow. If you want to live under a constitution that is pro forma and means whatever the majority or those in power want it to mean at that moment as influenced by the flavor of the month, move to Europe or ...Canada?:D

[jmm99]

Since this is your belief, it stands as such and I'm not about to argue with a belief:


I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.

but how strict a test are you really applying ?

Example, in 1790, "commerce" did not mean steam boats, railroads, airplanes, telecommications, etc. So those future means of carrying on "commence" (and the changed modes of commerce they created) could have had no meaning to the ratifiers.

Are you saying that the commerce clause should have been formally amended each time there was a changed mode of carrying on commerce ?

Looking for a clarification, not an argument. I think we both agree that the Constitution should not be changed because of one's sense of current "social justice" (whatever that might mean to the beholder).

Regards

Mike

PS: Here are two links to articles re: the Commerce Clause, both by conservatives: Bob Bork & Dan Troy, LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATE COMMERCE (http://www.constitution.org/lrev/bork-troy.htm) (2002); and Randy Barnett, The Original Meaning of the Commerce Clause (http://www.bu.edu/rbarnett/Original.htm) (2001) - what they mean by "original meaning".

[Bob's World]

This gets to my distinction between "Principles" and "Values." Principles, such as "all men are created equal," are timeless and should not change. However, how we value that principle will evolve along with our culture. A value being a principle with a judgment applied to it.

For us to ignore changes in our culture, technology, etc that evolve over time and cling to values assessed to these principles nearly 250 years ago would be dangerous. That said, to abandon principles that we no longer understand (such as the right to bear arms) are equally dangerous. An armed, informed populace that is free to peaceably assemble is crucial to deterring the three branches of government from ganging up on us.

The entire mix works. Preserve the principles, but let the values flex to retain relevance.

[TheCurmudgeon]

You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?

Assuming one of the two consenting adults in the sole owner of the bank and he consented to the action, I would say yes. But by establishing that condition, it loses its criminal aspect. The problem is, buy the definition of "Robbery" is the unlawful taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear. Criminal intent (scienter) is an element of the offense. Hence, it is definitionally impossible for two "consenting" adults to commit robbery. If you are robbing a bank, one of the parties is non-consenting.


In actual constitutional language, the three general provisions that come closest to securing the citizen from non-specific governmental intrusions are these:

Actually, it is in the Tenth Amendment offers the people the greatest protection against Federal intervention, but it is almost never used : "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

In reality, the federal government cannot make laws prohibiting sodomy, which was the UCMJ article that prohibited homosexual conduct. (At one time it also prohibited oral sex between couples of the opposite sex too.)

The federal government has not legalized homosexuality. It never really had the power to make it illegal. It has the power to regulate the behavior of members of the military to maintain good order and discipline.

What the federal government does have is the power to exempt members of the military from certain local laws while they are on a military instillation. It will be interesting to see if we maintain concurrent jurisdiction in the future.

Now, the power to regulate the military expressly belongs to the congress under Article I, Section 8 ... "To make Rules for the Government and Regulation of the land and naval Forces ..."

Courts have given congress great deference.
"Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”1540 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1541 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” with respect to military affairs,1542 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.”" http://law.onecle.com/constitution/article-1/44-raise-and-maintain-armed-forces.html citing Parker v. Levy 417 U. S. 733 (1974) http://law.onecle.com/constitution/article-1/44-raise-and-maintain-armed-forces.html

[DVC]

1. In 2003 Lawrence v Texas SCOTUS presto chango (is that Latin?) found that consentual adult sodomy was a constitutionally protected activity. At that time the Constitution had been in effect for over 200 years, sodomy had been illegal in most places in the U.S. for all that time, some of the Founders had been involved in actions punishing sodomy, SCOTUS had established precedent that sodomy laws were constitutional (Bowers v Hardwick 1986), and no amendment had been made to the constitution between 1986 and 2003 saying sodomy, previously unprotected by the constitution, was now a constitutionally protected activity. This seems to be a ruling from pure emotion rather than law and legislating from the bench. What probably would have been more appropriate would have been for SCOTUS to say sodomy in neither protected nor prohibited by the Constitution and turned the question back to the various state legislatures for action.

2. Commerce. Problem with the commerce clause is its misuse. I would imagine the Founder thought commerce meant commerce as in commercial activity. For much of the past 75 years, it has meant that our supposedly limited government can intervene in anything and everything whether it has any real connection or not to what a reasonable man would term commerce.

[TheCurmudgeon]

1. In 2003 Lawrence v Texas SCOTUS presto chango (is that Latin?) found that consentual adult sodomy was a constitutionally protected activity. At that time the Constitution had been in effect for over 200 years, sodomy had been illegal in most places in the U.S. for all that time, some of the Founders had been involved in actions punishing sodomy, SCOTUS had established precedent that sodomy laws were constitutional (Bowers v Hardwick 1986), and no amendment had been made to the constitution between 1986 and 2003 saying sodomy, previously unprotected by the constitution, was now a constitutionally protected activity. This seems to be a ruling from pure emotion rather than law and legislating from the bench. What probably would have been more appropriate would have been for SCOTUS to say sodomy in neither protected nor prohibited by the Constitution and turned the question back to the various state legislatures for action.

Not really. First, I disagree that Lawrence is controlling in this matter. As stated above, the congress can do a number of things. Desegregation was accomplished in the military long before Brown v. Board of Education.

Second, Lawrence was simply extending a line of reasoning dealing with contraception - that states could not justify having laws regarding restricting contraception without a valid reason. In essence, if the activity was being conducted between consenting adults and the state could not demonstrate a valid reason for intervening, then they had no business restricting the activity. This ruling also allowed my spouse and I to engage in oral sex without fear of being prosecuted for it (which would have been illegal in Texas under the same law).

What substantive due process means is that the government must show a valid interest in the activity if it wants to intervene. Doesn't really matter what the rule was in the past. And the amendment was post civil war. Fourteenth Amendment, Section 1 "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is the basis for Lawrence. So it wouldn't matter what the founding fathers thought. (And I would bet that at least Benjamin Franklin engaged in Sodomy as defined under the Texas Law.)

Often the laws in question are based on religious, not civil interest. As such, they are not defensible under the constitution, which was intended to be a secular document.

[jmm99]

John's example, was presented as a absolute and without qualification:


by JW (post #261 (http://council.smallwarsjournal.com/showpost.php?p=113423&postcount=261))

... the state never has any right to interfere in any voluntary interaction between two consenting adults ....

I pointed out (post #262) that a crime can be committed by two consenting adults:


You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?

In post #264 (http://council.smallwarsjournal.com/showpost.php?p=113435&postcount=264), I pointed out that a crime could be committed via either a conspiracy or an attempt (providing links to those criminal liability theories). In either case, at most, a material overt act would be required. That overt act does not have be unlawful and does not have to involve a third person or third persons.

In short, John's statement was overbroad in at least one instance. Other posters who require (by assumption) an actual bank robbery (involving actual third party victims) ignore the laws of conspiracy and attempts.

See, the many domestic US cases vs AQ-linked conspirators and attempted IED artists, settled via guilty pleas or verdicts.

Frankly, I've no special interest or expertise in the "should" or "should not" of criminal laws re: private sexual interactions between two competent, consenting adults. I'm sure that one can find many different "umbras", "penumbras" or "emanations" to grasp onto re: that issue - as this thread proves.

Regards

Mike

[Rifleman]

:p

jmm99,

I don't know, I've never thought about the commerce example before. :confused:

The specific examples I had in mind were Ammendments II and X, of course. :cool:

[TheCurmudgeon]

I pointed out (post #262) that a crime can be committed by two consenting adults:

In post #264 (http://council.smallwarsjournal.com/showpost.php?p=113435&postcount=264), I pointed out that a crime could be committed via either a conspiracy or an attempt (providing links to those criminal liability theories). In either case, at most, a material overt act would be required. That overt act does not have be unlawful and does not have to involve a third person or third persons.


Not really. Per your cite conspiracy requires a third person.
"Exceptions

* Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.
* Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:

(a) a spouse or civil partner; [1]
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence."

So, there has to be a third party victim (or an intended third party victim). An act that only involves the two consenting adults can never be conspiracy.

Attempts would also have to require a third party victim.

[jmm99]

TheCurmudgeon - so declare yourself the winner and go on to apply your concepts of conspiracy and attempts to your real life as you please.

Cheers

Mike

[jmm99]

In law, the "METT-T" answer is "it depends" - on which constitutional provision you are looking. Of course, the Commerce Clause has been over-interpreted (as both Bork and Barnett demonstrate), but there is more room in "commerce" for flexibility.

As to Amendment X (and IX), both have been largely ignored by SCOTUS - and marginalized - unfortunately, so far as my opinion counts for anything.

As to the Second Amendment, I liked Justice Thomas' concurence in 2010 McDonald (http://en.wikipedia.org/wiki/McDonald_v._Chicago) (emphasis added):


OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
CHICAGO, ILLINOIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 28, 2010]

JUSTICE THOMAS, concurring in part and concurring in the judgment.

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.

He then went on to use both "original understanding history" and "ongoing history" to make his point. Unfortunately, that methodology is not often used today - and Justice Thomas' opinion was an opinion of one.

Moving back in time - since it was rendered only a decade past the initiation of the US goverment under the Constitution - the opinion of Justice James Iredell (http://en.wikipedia.org/wiki/James_Iredell) in Calder v Bull (http://en.wikipedia.org/wiki/Calder_v._Bull), 3 U.S. 386 (1798), is instructive as to the "original understanding" of what courts (esp. SCOTUS) may or may not do (3 U.S. 386 at 399):


In order, therefore, to guard against so great an evil [JMM: a ref. to unlimited legislative power - see prior para. 3 U.S. 386 at 398-399], it has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.

If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

Seems a good rule to me - even at 212 years of age.

Regards

Mike

[jmm99]

with TheCurmudgeon. Here's why - no apology.

Yup, he did go to my link on Conspriracy (crime) (http://en.wikipedia.org/wiki/Conspiracy_(crime)) - and quickly read down the page to find the first thing he could cherry-pick, which was:


Exceptions

Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.

Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:

(a) a spouse or civil partner; [1]
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence.

Obviously, a statute is referenced - whose statute ? Why Criminal Law Act 1977, of course - which comes under the heading "Conspiracy in English Law".

The law cited by TheCurmudgeon is UK law - and David or some other Brit can explain that law if they wish.

Now, the Wiki does get into US law - specifically, the Federal conspiracy law as considered by SCOTUS (emphasis added):


Conspiracy in the United States

Conspiracy has been defined in the US as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. [1][2]

1. http://definitions.uslegal.com/c/conspiracy/

2. http://www.lectlaw.com/def/c103.htm

For example, planning to rob a bank (an illegal act) to raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use illegal means to accomplish the end goal. A conspiracy does not need to have been planned in secret to meet the definition of the crime. One legal dictionary, law.com, provides this useful example on the application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the law can handle both the criminal and the civil need for justice.


[A] scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages [in civil court] for the fraud and conspiracy.

Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific person to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law.

In United States v. Shabani, 513 U.S. 10 (1994) the United States Supreme Court ruled: U.S. Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability" at least insofar as to establish a violation of a narcotics conspiracy under 21 U.S.C. § 846. Therefore, the Government need not prove the commission of any overt acts in furtherance of those narcotics conspiracies prohibited by 21 U.S.C. § 846. The Shabani case illustrates that it is a matter of legislative prerogative whether to require an overt step, or not to require an overt step in any conspiracy statute. The court compares the need to prove an overt step to be criminally liable under the conspiracy provision of the Organized Crime Control Act of 1970, while there is no such requirement under 21 U.S.C. § 846.

The Supreme Court pointed out that common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis.

The conspirators can be guilty even if they do not know the identity of the other members of the conspiracy. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995), aff'd., 124 F.3d 206 (7th Cir. 1997).

Make up your own mind as to which law you want to follow - UK law in the UK and US law in the US, seem reasonable choices.

Take Care

Mike

[TheCurmudgeon]

JMM,

I will not dispute your research, and I was wrong to cite English common law, but it was your cite.

I only offer a counter-example. Based on your reading of the law two boxers could not agree to participate in a boxing match since this would amount to conspiracy to commit battery. Does not matter that the two adults consented.

Similarly, every time a doctor agrees to conducts a surgery, he is engaging in a conspiracy to commit assault.

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient‟s consent commits an assault, for which he is liable in damages. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained." Schloendorff v. Soc‟y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).

In my reading, conspiracy can only be committed where the underlying act is criminal regardless of consent. Examples previously cited were drugs (depending on type and locality), prostitution (depending on locality), gambling (depending on type and locality), and other "victimless" crimes. Those acts are criminal because they "victim" is society in general, hence the state interest in them.

But, I will admit I could be mistaken.

I must also admit that we are somewhat off topic. I only post because the arguments seemed specious.

As I stated earlier congress's power to decide whether or not homosexual conduct should be allowed in the military is based on a constitutional provision giving them the authority to regulate the land and naval forces. That grant of authority has been interpreted by the courts (under Article III of the constitution: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;") to be quite broad. see post #290.

Congress spoke. We make it happen.

Legally speaking, those that take issue with this always have the Lieutenant Watada option or, as one officer put it to me, they can resign or otherwise depart military service.

[selil]

Yes you are all off topic but it valid and important for a few reasons.

1) I'm sending my ethics and law students to read this thread.

2) There are only two groups of people who seem to care about the Constitution and law besides attorneys:
a) People who have sworn an oath to protect it
b) People bent on breaking it

3) The issue is directly related to the freedom of service members. If the argument turned against homosexuals based on the "act" then what other behaviors could be banned (out of wedlock sex, riding a motorcycle without a helmet, ownership of firearms or other weapons, right to adopt a foreign national)?

[jmm99]

I'm not going to continue quibbling with you - so you "win".

From your About Me, I notice two things among your creds: "Law Degree" and "contrarian". That is familar territory for me. I run into a lot of nitpicking lawyers; but with them, I have the option of saying: "You brief it and file it. I'll brief it and file it. Let the judge decide it." That's not an option here.

So, I'll forego any response to your assertions about my "position" re: the two boxers and the doctor-patient. As Sam says, the discussion has moved off topic and a "contrarian discourse" would not be helpful.

Cheers

Mike

[JMA]

Yes you are all off topic but it valid and important for a few reasons.

1) I'm sending my ethics and law students to read this thread.

2) There are only two groups of people who seem to care about the Constitution and law besides attorneys:
a) People who have sworn an oath to protect it
b) People bent on breaking it

3) The issue is directly related to the freedom of service members. If the argument turned against homosexuals based on the "act" then what other behaviors could be banned (out of wedlock sex, riding a motorcycle without a helmet, ownership of firearms or other weapons, right to adopt a foreign national)?

OK, so (may I humbly suggest that the US) get gay rights sorted out in the constitution before imposing them on the military.

[motorfirebox]

OK, so (may I humbly suggest that the US) get gay rights sorted out in the constitution before imposing them on the military.
There's nothing in the Constitution about sexuality at all. I don't see why there needs to be.

[jmm99]

and for whoever else might be interested in reading some material judicial opinions from the real world.

1. Like them or not, Griswold v Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U. S. 113 (1973); and Lawrence v Texas, 539 U.S. 558 (2003), are the facts of life so far as the private sexual acts of competent, consenting US civilian adults are the concern of US civilian criminal law. [1]

2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts were affirmed: US v Marcum (http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm), 60 M.J. 198 (2004), and US v Stirewalt (http://www.armfor.uscourts.gov/opinions/2004Term/03-0433.htm), 60 M.J. 297 (2004). [2]

What distinguishes the US military cases (so far as the USCAAF was conceerned) from the US civilian cases (so far as the opinions in Lawrence were concerned) ? Were different constitutional and statutory provisions in play in the military cases ?

3. The EU also has its own view of gays in the military. See, The Legal Treatment of Homosexuals in the Armed Forces of Europe (http://www2.law.ox.ac.uk/opbp/GaysinMilitaryFinal%20Submission.pdf) (Oxford University Public Interest Law Submission), which seems based on treaty and statutory law of the EU and of individual countries in response to the EU lead.

What distinguishes the EU position from the SCOTUS-Lawrence position and from the USCAAF position ?

-------------------------------------------------
[1] The Justia link to Lawrence v Texas (http://supreme.justia.com/us/539/558/case.html) includes hyperlinks back to all of the material cases in the "sexuality" series in all of their "umbras", "penumbras" and "emanations".

[2] The USCAAF "Marcum" test is:


Marcum 3-Part Test for determining when the Constitution allows the prohibition of sodomy:

(a) Is the accused’s conduct within the liberty interest identified by the Supreme Court in Lawrence?

(b) Does the conduct encompass any behavior or factors identified as outside the analysis in Lawrence (i.e., public acts, prostitution, minors, persons who might be injured or coerced or who might not easily refuse consent)?

(c) Are there additional factors relevant solely in the military environment that affect the reach of the Lawrence liberty interest?
Some cases after the two 2004 USCAAF cases have been:


(4) United States v. Christian (http://www.armfor.uscourts.gov/opinions/2006Term/04-0797.pdf), 61 M.J. 560 (N-M. Ct. Crim. App. 2005) (consensual sodomy between accused, a recruiter, and “RW,” originally a volunteer ASVAB tutor at the accused’s recruiting office; although private and not specifically excepted under Lawrence, appellant’s conduct implicated military-specific interests described in the third prong of the Marcum framework. Specifically, his role as a Marine recruiter & his violation of a recruit depot general order). United States v. Bart (http://www.jag.navy.mil/courts/documents/archive/2005/200101108.PUB.pdf), 61 M.J. 578 (N-M. Ct. Crim. App. 2005) (consensual sodomy between coworkers in violation of SecNavy Instruction, involved adultery, and one partner murdered a spouse to continue the relationship combined to violate Marcum third prong).

(5) United States v. Smith (http://www.armfor.uscourts.gov/opinions/2009SepTerm/09-0169.pdf), 66 M.J. 556 (C.G. Ct. Crim. App. 2008). Assuming arguendo that the conduct was not the result of extortion, the sodomy in this case was between two consenting first-class cadets in different chains of command. As such, the court observed that the conduct appeared to fall within the Lawrence liberty interest. However, addressing the Marcum factors, the court found that Coast Guard Academy regulations prohibit sexual activities between cadets on board military installations, even if consensual. As there is a regulation prohibiting the behavior, the court held that the conduct constituting sodomy fell outside the protected liberty interest recognized in Lawrence v. Texas.

(6) United States v. Harvey (http://afcca.law.af.mil/content/afcca_opinions/cp/harvey-36641.pub.pdf), 67 M.J. 758 (A.F. Ct. Crim. App. 2009). In a prosecution of sodomy under Art. 133 as conduct umbecoming, military judge did not err in failing to instruct the members on the Marcum factors. “Whether an act comports with law, that is, whether it is legal or illegal [in relation to a constitutional or statutory right of an accused] is a question of law, not an issue of fact for determination by the triers of fact.”

Source: Criminal Law Deskbook, Volume II, Crimes and Defenses (The Judge Advocate General’s School, US Army; Charlottesville, Virginia; Summer 2010). Available from here, LCS Criminal Law Department (http://www.loc.gov/rr/frd/Military_Law/Criminal-Law-Department.html). See Chap. 4, Sec. V, startng at 4-22 (p.140 pdf) for Sexual Offenses in general; and starting at 4-34 (p.156 pdf) for Sodomy in particular.

-----------------------------------------

Have fun with this primer.

Mike

[jmm99]

on (5) United States v. Smith, 66 M.J. 556 (C.G. Ct. Crim. App. 2008), in the footnotes of my prior post. The links are to the 2008 CGCCA opinion (http://www.uscg.mil/legal/cca/court_of_criminal_appeals_opinions/Year2008/20080409%20United%20States%20v.%20Smith%2066%20MJ% 20556.pdf) and to the 2010 USCAAF opinion (http://www.armfor.uscourts.gov/opinions/2009SepTerm/08-0719.pdf) (not in the 2010 Deskbook), affirming Webster Smith's conviction on multiple counts. The link given previously (my bad) will take you to "Sgt. Smith", an AG dog-handler case (which is interesting enough, but not quite on topic).

The Webster Smith case has generated quite a bit of blog content - just south of 4000 hits if you Google (Advanced Search) "webster smith" "coast guard academy". SCOTUS denied certiorari, 29 Nov 2010 - see, No more Appeals For Webster Smith (http://lawandorderroybean.blogspot.com/2010/12/no-more-appeals-for-webster-smith.html) (8 Dec 2010) - leaving the CGCCA and USCAAF decisions as the final word.

Regards

Mike

[motorfirebox]

2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts were affirmed: US v Marcum (http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm), 60 M.J. 198 (2004), and US v Stirewalt (http://www.armfor.uscourts.gov/opinions/2004Term/03-0433.htm), 60 M.J. 297 (2004). [2]
Please note, the US Army Court of Appeals also chose to abide by Lawrence decision, citing it specifically, in US v Bullock (1996) (http://caselaw.findlaw.com/us-4th-circuit/1120829.html). This is important because in both US v Marcum and US v Stirewalt, there were more factors to consider than just the sexual act itself, whereas in US v Bullock the sex act was all there was to consider.

US v Marcum challenged the constitutionality of Article 125, which is just silly--as was discussed earlier on this board, 125 covers more than just consensual homosexual contact, and unlike readers and participants on these forums, a court doesn't have the option of applying common sense when someone challenges an entire article to attack a single provision of that article. Both Marcum and Stirewalt involved fraternization of servicemen within the same chain of command--both, in fact, involved a superior and their direct subordinate.

And in both Marcum and Stirewalt, the court recognized the general applicability of Lawrence to the military--they simply contended that there are aspects of military society which Lawrence doesn't apply to. Neither decision was a blanket rejection of Lawrence's applicability to the military.

[jmm99]

hold the bullocks ! :)

Your US v Bullock (1996) is a Federal narcotics 4th Amendment case, decided 7 years before Lawrence. Your bad today; my bad yesterday when I initially mislinked US v Smith.

The link you want is US v Bullock (http://www.glapn.org/sodomylaws/usa/military/milnews052.htm) (A. Ct. Crim. App. Nov 30,. 2004), appeal denied 61 M.J. 336 (USCAAF 2005). Bullock followed the three-prong Marcum test; and found none of the prongs were sufficient to allow an exception to Lawrence:


The providence inquiry failed to establish a sufficient factual predicate to objectively establish that appellant’s conduct was outside the liberty interest identified in Lawrence and Marcum. The facts admitted by appellant describe a consensual encounter between two adults in the privacy of a barracks room. Nothing in the providence inquiry indicates that anyone other than appellant and MG were present.[2] This conduct is squarely within the liberty interest recognized in Lawrence and Marcum.

Second, the conduct as described by appellant did not “encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence.” See Marcum, 60 M.J. at 206-207. The conduct did not involve a minor. See Lawrence, 539 U.S. at 578. It did not involve public conduct or prostitution. Id. It did not involve “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id.

Finally, there are no “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Marcum, 60 M.J. at 207. Appellant described conduct with a civilian, with no military connection other than that it occurred in a barracks room. Appellant did not admit any facts during the providence inquiry which demonstrated any military necessity to circumscribe his liberty interest in engaging in private, consensual behavior with another adult. Consequently, the providence inquiry was insufficient to support appellant’s plea of guilty to this offense.

2 The government asserts that “the sodomy occurred in a military barracks room in the presence of appellant’s roommate.” The record does not establish that the conduct occurred in the roommate’s “presence.” However, even assuming the government did establish this fact during the contested portion of the case, appellant did not admit it during the providence inquiry into his plea to the consensual sodomy, which was the basis for the finding of guilty. See United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (stating that “[a] providence inquiry into a guilty plea must establish, inter alia, ‘not only that the accused himself believes he is guilty but also that the factual circumstances as revealed by the accused himself objectively support that plea’”) (quoting United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994).

Would the result be different if either of these facts were found true: (1) the act occured in the presence a non-involved third party spectator; or (2) a general order prohibited all multi-party sexual acts in the barracks (regardless of the gender involved) - following Patton (movie) comment re: this is a barracks, not a brothel ?

---------------------
motorfirebox, is this a comment to me or to others ?:


And in both Marcum and Stirewalt, the court recognized the general applicability of Lawrence to the military--they simply contended that there are aspects of military society which Lawrence doesn't apply to. Neither decision was a blanket rejection of Lawrence's applicability to the military.

To provide absolute clarity - but being a bit redundant, my supplemented statement of the two USCAAF cases:


2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members [Marcum and Stirewalt] of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts [of Marcum and Stirewalt] were affirmed: US v Marcum, 60 M.J. 198 (2004), and US v Stirewalt, 60 M.J. 297 (2004). [links and footnote 2 in original post]

Since I cited the three-prong Marcum test in footnote 2, my original statement of the two cases should have been adequate.

If your comment was addressed to someone else, then my response above has been redundant and a waste of time.

BTW: USCAAF is the highest military appellate court (below it are lower appellate courts for the Army, Navy-Marines, Air Force and Coast Guard).

Regards

Mike

[motorfirebox]

Sonuva... I wanted to link to something a bit more official than a gay history website archive. Ah well. Thanks for providing a proper link.

I read your footnote 2, but I wanted to clarify the ramifications--to show that the three-prong test wasn't being used as an excuse to avoid Lawrence altogether.

Regarding your questions, (1) I'm not sure--possibly? And (2)--certainly, though with respect to Patton, the barracks seem like a safer option than some of the hotels I've spent an evening in company with.

And absolute clarity is never a waste of time. :)

[jmm99]

reconsider your approach in seeking "clarification" - e.g., "Your para 2 is ambiguous to me. Do you mean this or that ?" - whether posted or in a PM - before firing.

Oh well, legal opinions in a Net forum are the inherent birthright of every poster (which is fine); but have the real world equivalence of paintball or airsoft "warfare" (which also is fine).

On another level (the real world), my thought, as I've tried to put these cases into some order, is what the hell would I advise a Soldier or Marine on what conduct is legal and illegal for him or her. The defender role.

Or conversely, what the hell do I tell a commanding officer as to what is legal and illegal (and what legal orders can he issue in this area). The prosecutor role.

Yeh, Lawrence is the "general rule", subject to the three-prong Marcum test - and when you start to add up the exceptions that allow prosecutions, the exceptions may eat up most of the so-called rule.

The regulations governing "barracks" (more broadly, what portion of a military reservation can be excluded from Lawrence - all, part ?; what conduct can be barred ?; etc.) are an example. Clearly, broad geographic regulation is allowed the CO:


United States v. Webster M. SMITH, No. 1275 (C.G.Ct.Crim.App. 2008)

The Regulations for the Corps of Cadets includes an Article 4-5-05 entitled Sexual Misconduct. (Appellate Ex. XXIV.) Paragraph a.3 thereof prohibits sexual conduct on board military installations, which includes the Academy, even if between consenting cadets. We find that Appellant’s conduct, as he testified to it (R. at 1326-27), was outside any protected liberty interest recognized in Lawrence. See Stirewalt, 60 M.J. at 304 (liberty interest is considered “in light of the established . . . regulations and the clear military interests of discipline and order that they reflect”). We note that a holding otherwise would apparently yield the anomalous result that the regulation would be enforceable as to all forms of sexual conduct except sodomy, as the Government pointed out at oral argument. [14]

14 We have found no authority suggesting that military regulation of sexual conduct generally may be unconstitutional.

The presence of the regulation readily distinguishes this case from those of the Army Court of Criminal Appeals opinions attached to Appellant’s brief, in which in-barracks consensual sodomy convictions were overturned. In one of them, the opinion specifies that there was no evidence of a barracks policy prohibiting the conduct. United States v. Meno, ARMY 20000733, at 4 (A.Ct.Crim.App. Jun. 22, 2005) (per curiam). In the other, a guilty plea case, the accused had not admitted any facts that would take the case out of the Lawrence liberty interest. [15]

15 Appellant’s clemency request to the Convening Authority, dated 22 August 2006, attached another Army Court of Criminal Appeals opinion and cited a Navy Court of Criminal Appeals opinion, each of which involved a guilty plea with no indication or admission by the accused of additional factors taking the case out of the Lawrence liberty interest.

United States v. Bullock, ARMY 20030534, at 5 (A.Ct.Crim.App. Nov. 30, 2004). We are not aware of any court-martial appellate decision overturning a sodomy conviction based on Lawrence when there was a regulation aside from Article 125, UCMJ, prohibiting the behavior. [16]

16 Under the circumstances of this case, even if Appellant were found not guilty of extortion and even if there were no regulation, it is not clear that the conduct would be within the Lawrence liberty interest. We do not reach that question.

Now, if you remove extortion and the regulation from the Webster Smith case, then I would say that we have something very akin to US v Bullock. Or, did I miss something ?

Yet, the Smith judges (in fn 16; after citing Bullock just after fn 15) say "it is not clear that the conduct would be within the Lawrence liberty interest."

It seems likely that the demise of DADT (and I don't expect it to be revived) will open the door to a lot of legal questions that have been lurking in the shadows.

Regards

Mike

[jmm99]

As you might gather from my prior post (ref to "paintball" and "airsoft", etc.), I'm not in one of my comfort zones (esp. considering the possible consequences, legal and military, in the real world).

So, taking this thread solely as learning experience, we've looked at some cases; but there is a much larger world of regulatory materials that have to come front and center.

To address sexual conduct issues with any smarts, one has to know all of the applicable regulations, rules, orders (DoD, service branch, command, etc.).

For example, re: General Orders, here is a brief explanation from the 2010 Operational Law Handbook (download from LCS Int & Op Law Dept (http://www.loc.gov/rr/frd/Military_Law/LCS-International-and-Operational-Law-Dept.html))


C. Consider the need for or existence of a General Order for the operation.[11]

11 A general order (GO) is the commander’s tool to promote mission accomplishment and protect deployed forces. Much like the Rules of Engagement (ROE), GOs are a flexible way for the command to centrally plan, but de-centrally execute the commander’s intent. One of the earliest general orders was given at Bunker Hill, “Do not fire until you see the whites of their eyes.” Modern general orders include prohibitions on the use of privately owned weapons, alcohol, or entry into local religious or cultural buildings.

1. Draft a general order for the operation. Based upon mission requirements and command guidance, military justice supervisors and TC must draft the general order (GO) for the operation and have it ready for publication as soon as possible. Before attempting to draft a GO, JAs must determine if their higher headquarters already published a mission or theater specific GO. See examples at the end of this chapter (GOs for operations in Desert Shield, Haiti, and Allied Force). Judge advocates must also be aware that the higher headquarters may also prohibit or limit the ability of lower headquarters to promulgate general orders.

2. Publish a general order for the operation. The GO must be published and disseminated to all Soldiers prior to deployment. Violations of a properly published GO may be punished under Article 92, UCMJ. Even though the government need not prove knowledge of a lawful GO as an element of the offense, the contents of the GO should be aggressively briefed to all deploying Soldiers.

3. Conducting mission training / predeployment briefings. Judge Advocates must be thoroughly familiar with the GO for the operation and must provide extensive briefings prior to deployment. As with ROE training, supervisory JAs must ensure all members of the command understand the commander’s intent. Refresher training on the GO (and ROE) upon arrival in theater, and at regular intervals throughout the deployment, are critical tasks.

I've attached a pdf snip from the Handbook of some General Orders appended as examples (2010 Operational Law Handbook, snip: pp. 470-481).

As an example of regulations and rules, see AR 600-20 (http://armypubs.army.mil/epubs/pdf/r600_20.pdf):


Army Regulation 600-20
Personnel-General
Army Command Policy
Headquarters
Department of the Army
Washington, DC
18 March 2008
Rapid Action Revision (RAR) Issue Date: 27 April 2010

I've attached a pdf snip, "4-19. Homosexual conduct policy" (p.28; pdf p.34), which will be revised to accord with whatever the new policy exactly becomes.

Any additional links and comments adding to the learning experience re: regulations, rules and orders will be appreciated.

Frankly, I prefer war crimes, Laws of War and ROEs, etc., to this sexual conduct and gender stuff.

Regards

Mike

[Stan]

This Week at War: The Ask-Tell Era Begins (http://www.foreignpolicy.com/articles/2011/01/14/this_week_at_war_the_ask_tell_era_begins)



Rand's sanguine predictions concerning the repeal of DADT imply a renewed commitment by all service members to the military's traditional social contract. Under this contract, individuals who join the service agree to forfeit a portion of their individual autonomy and eagerly work hard at achieving the unit's goals. The other side of the military's social contract is the responsibility of the military's leaders to set high standards, to enforce the rules fairly, to assess subordinates based on merit, and to ensure that soldiers who fulfill their part of the bargain are treated with respect. Based on their research, Rand's analysts assume that U.S. service members will agree to this long-standing social contract after the end of DADT. That seems like a reasonable assumption, but it will require the goodwill of all to make it a reality.

More at the link...

[jmm99]

As stated above, I'm of the "don't ask, don't care" persuasion. This article is interesting - first day and all.

NYT - Marines Hit the Ground Running in Seeking Recruits at Gay Center (http://www.nytimes.com/2011/09/21/us/marine-recruiters-visit-gay-center-in-oklahoma.html?_r=1)

No deep thoughts or comments from me.

Regards

Mike

[selil]

No deep thoughts or comments from me.



Marines are professionals. Marines adapt. Looks to me like they did both with style.

[ganulv]

As a kid pre-DADT my mother came home from Guard one Sunday and said her unit commander (whom I remember from the couple of times I was in his presence as so understated it was calming) had called them all in and read them the Riot Act over a Xeroxed flyer with a gay joke on it which had been posted on the cork board. As soon as they were dismissed the fellow next to my mother turned to her and whispered, “Someone in this room is apparently unaware that his brother died of AIDS.” I know that a Marine weapons company and a National Guard medical company are at best apples and oranges, but given my own introduction to issues of homosexuality in the U.S. Military I have been for going on two decades now consistently puzzled by the notion that things are going to go t#ts up if homosexual servicemen and -women are allowed to acknowledge their sexual orientation.

[jmm99]

Well said. :)

I think you could add experience and expertise to this thread, New technologies and war legislation: a progress (http://council.smallwarsjournal.com/showthread.php?t=14108&page=2)?

Up to you, of course.

Regards

Mike

[Ray]

In our Army, we don't care who is what or who is doing what so long as it does not create a disciplinary issue.

Of course, it is not that we do not know what is up, but so long as it is not 'rape' where we take suo moto cognisance and throw the man out without benefits, life goes on.

When the chaps are sharing cramped bunkers on the Line of Control and leave is rare, it can develop into a British public school. To believe it would not is being naive.

Indian army bunker
http://www.flickr.com/photos/pravinp/405753298/

[Fuchs]

I know that a Marine weapons company and a National Guard medical company are at best apples and oranges, but given my own introduction to issues of homosexuality in the U.S. Military I have been for going on two decades now consistently puzzled by the notion that things are going to go t#ts up if homosexual servicemen and -women are allowed to acknowledge their sexual orientation.


This puzzles me.

Isn't the rating of perceived masculinity typically like this (in descending order):

hetero males
homo females
homo males
hetero females

?

If a masculine psyche is the issue, shouldn't lesbians be more welcome in a military than normal women?



Well, I guess I shouldn't approach this with objectivity...

Disclaimer:
I would LOVE a world with about 30 % homo males. Seriously, so many competitors gone - the supply shortage of hetero men would make things so much easier for us! :D

[motorfirebox]

This puzzles me.

Isn't the rating of perceived masculinity typically like this (in descending order):

hetero males
homo females
homo males
hetero females

?

If a masculine psyche is the issue, shouldn't lesbians be more welcome in a military than normal women?



Well, I guess I shouldn't approach this with objectivity...

Disclaimer:
I would LOVE a world with about 30 % homo males. Seriously, so many competitors gone - the supply shortage of hetero men would make things so much easier for us! :D
In my experience, when homosexuality in the military is considered by those who oppose it, the focus is on homosexual males.

[Ken White]

In my experience, when homosexuality in the military is considered by those who oppose it, the focus is on homosexual males.Due mostly to combat -- a male preserve until quite recently -- cohesion concerns. Most folks in the armed forces don't much care about what happens socially in the rear areas or out of combat but they do care about what happens or could happen if they and some others are committed to shooting events...:D

Serving female homosexuality was until recently known, accepted and other than ribald jokes, mostly ignored as a non-problem -- as was male gayness in most cases. Having served in units in both the Marines and the Army where known gay guys were also serving, my experience was they were generally but not universally accepted unless they got excessively blatant. Local solicitation or Campiness in Camp were not usually accepted... :eek:

The focus was and probably is still mostly on the homosexual male but the concern is divided. Some is for him, some for the straight guy who may react adversely for a host of good and bad reasons to the presence of a gay squad, platoon or company member (no pun intended). However, most concern by the large majority of serving persons is simply for the overall effect in all aspects on the unit -- though for a few people (very few and mostly old, both literally and figuratively...) the potential for 'embarrassing' incidents reflecting on the service is also an issue.

There are too many human variables to really have a one-size-fits-all solution or any pat answers. Yet we must... :wry:

[ganulv]

Serving female homosexuality was until recently known, accepted and other than ribald jokes, mostly ignored as a non-problem -- as was male gayness in most cases. Having served in units in both the Marines and the Army where known gay guys were also serving, my experience was they were generally but not universally accepted unless they got excessively blatant. Local solicitation or Campiness in Camp were not usually accepted... :eek:

I don’t know if it is a particularly American issue, but a lot (though not necessarily all or even the majority, really) of my countrymen do fail to divine that the public assertion of one’s beliefs, identity, ideology, etc. can wear on others, even those who put a premium on tolerance. Despite holding an opposing POV myself, I have worked with plenty of Republicans and atheists in my day and am fine with that part of them as long as they don’t go on about the genius of Rush Limbaugh and Richard Dawkins. That sort of balance is a hard (impossible?) thing to try to arrive at via a one-size-fit-all policy, for sure.


The focus was and probably is still mostly on the homosexual male but the concern is divided. Some is for him, some for the straight guy who may react adversely for a host of good and bad reasons to the presence of a gay squad, platoon or company member (no pun intended). However, most concern by the large majority of serving persons is simply for the overall effect in all aspects on the unit -- though for a few people (very few and mostly old, both literally and figuratively...) the potential for 'embarrassing' incidents reflecting on the service is also an issue.I’ve been in Fayetteville on a Friday night. I would say the bar for embarrassing incidents is set pretty high at this point. :D

[Fuchs]

Ironically, one of ancient units that emphasised cohesion the most was the Sacred Band of Thebes (http://en.wikipedia.org/wiki/Sacred_Band_of_Thebes). :D

[Ken White]

ganulv:

Heh. Me too. Despite holding an opposing POV myself, I have worked with plenty of Democrats, Republicans, evangelicals and atheists in my day and am fine with that part of them as long as they don’t go on about the genius of Rush Limbaugh, Paul Begala, Pat Robertson and Richard Dawkins...

Fanatics of any stripe or type are dangerous and to be watchfully ignored. :wry:
That sort of balance is a hard (impossible?) thing to try to arrive at via a one-size-fit-all policy, for sure.Any sort of true balance is extremely difficult to attain or maintain in a nation of over 300M diverse souls scattered over ± 3.8M square miles. Though to hear the big guvmint types, if they were in charge it'd be a snap. :rolleyes:
I’ve been in Fayetteville on a Friday night. I would say the bar for embarrassing incidents is set pretty high at this point.Huh? What do you have against good clean fun...:D

As a participant in those games many years ago, BPC, when the pressure to be nice and to conform was nowhere near what it was post 1985 or so thanks to John Wickham, little that happened there ever embarrassed the Army because the national news media (a) knew at least something about the Army, (b) knew that testosterone imbalance was real but would pass and did not reflect on any institution, (c) knew that bar maids will be bar maids and most were not in or of the Army, (d) knew what was news and what was not, (e) didn't have time to waste on local stupidity. Today, things are different... :rolleyes:

Fuchs:
Ironically, one of ancient units that emphasised cohesion the most was the Sacred Band of Thebes.True dat. Fortunately, that also was BPC -- and they didn't have a Congress full of persons who needed to remain in the public eye by focusing on anything that might help them do that...

[AdamG]

With homosexuals now able to serve openly in the military, the gay rights movement’s next battleground is to persuade the Obama administration to end the armed forces’ ban on “transgenders,” a group that includes transsexuals and cross-dressers.

“Our position is that the military should re-examine the policy, the medical regulations, so as to allow open service for transgender people,” said Vincent Paolo Villano, spokesman for the 6,000-member Center for Transgender Equality.

The Servicemembers Legal Defense Network (SLDN), which pushed to end the military’s gay ban, is urging President Obama to sign an executive order prohibiting discrimination based on “gender identity.”

http://www.washingtontimes.com/news/2011/sep/28/after-demise-of-dont-ask-activists-call-for-end-to/

Have fun on thatpredictably slippery slope (http://www.youtube.com/watch?v=nVXmMMSo47s)

[jmm99]

The Sacred Band of Thebes has been mentioned several times in this thread (history link (http://www.sacredband.com/Thebes) from an earlier post). That mention shook open an old file drawer in my noggin - not about the Theban Band itself; but about a clever tactic used against a "Theban-type Band" in the Roman Games.

I read Those About to Die (http://www.amazon.com/Those-About-Die-Daniel-Mannix/dp/0345216245) (Ballantine, 1958), by Daniel P. Mannix (http://en.wikipedia.org/wiki/Daniel_P._Mannix), in the late 1950s. This lassoing tactic stuck in my head as being clever:

(snip beginning here (http://wordinfo.info/unit/4149?letter=R&spage=6)):


...
After this first bout, there was a full-scale battle between the Essedarii in their chariots, with laqueurii (lariat throwers) riding with them, and Hoplite infantry in armor and carrying spears.

The Hoplites were Greek mercenaries who fought for hire under their own officers, either against an enemy or in the circus. On entering the arena, the Hoplites formed a closed phalanx, the equivalent of the British hollow square that broke Napoleon's chasseurs eighteen hundred years later.
...

(snip ending here (http://wordinfo.info/unit/4150?letter=R&spage=6)):


...
The phalanx was itself again, ready to meet the next charge of the Essedarii.

Two chariots were coming in abreast now. Surely they intended to hit the phalanx full on, sacrificing themselves so the following chariots could plow through the broken line.

The Hoplites braced themselves for the shock. At the last instant the chariots split, turning to left and right. The lariat man in the left-hand chariot threw his noose with the quick, underhand toss, aiming for a man in the rear rank.

An officer cut the rope through with a single slash while it still hung poised in mid-air. He had served in the Near East and his sword was of Damascus steel. The other lariat man took advantage of the distraction. He had been playing his rope, doing a spin now known as the Ocean Wave, in an attempt to hold the Hoplites' attention and distract them from his friend.

When he saw that his comrade's throw had been foiled, he instantly flung his own rope, leaning far over the side of the chariot and putting the whole force of his body into the motion, using his arm mainly to guide the rope. He caught a man in the fifth rank, jerked him off his feet, and began towing him through the other lines.

Among the Hoplites, homosexuality was regarded not only as natural but as an idealized and noble relationship between an older and a younger man.

In the phalanx, the young men in the front ranks each had a lover among the older men in the rear ranks. This situation was believed to increase the efficiency of the regiment for no man would run away and forsake his lover in a crisis. But the relationship also posed difficulties.

As the Essedarius dragged his captive through the ranks, the man's boy-lover dropped his spear and threw himself on his friend's body to save him. The two men together cut a wide swathe through the ranks.

An officer passed his sword through the boy's throat and the cry of "Dress ranks! Dress ranks!" went up from the officers and the non-coms alike. But the damage had been done. The phalanx was broken, and the yelling Essedarii were charging in from all directions.
...

Now, (1) Mannix's book can be fairly classed as "popular history" or "historical fiction"; and (2) I do not present this as an argument against gays serving in combat situations. I don't think it likely that either Army or Marines are going to field a "Theban Band" at a "Restrepo".

I can think, however, of a situation where close (straight) relationships were a material adverse factor to a "Non-Theban Band" - the 1975 collapse of many ARVN units who were tied locally to their families.

I doubt that either of these issues (the "Non-Theban" being statistically much more likely) will be considered rationally or in an NPC mode.

Regards

Mike