Scholarly Paper VS Social Media on Sexuality
The article “When evidence is a crime” by Elizabeth Goitein is a case study about a Federal court decision to uphold the “don’t ask, don’t tell policy (DADT)” and violation of The First and Fifth Amendments. The court decision in “Holmes vs. California Army Nation Guard took place in 1997, which was fairly recent after the decision by former President Clinton who implemented the “Don’t ask Don’t Tell policy”. The case study argues that the continuing to ignore the rights of Homosexuals in the courts will result in a trend of continued dismissal of Homosexual rights in the Armed Forces; specifically the First Amendment. This case was published in the Yale Law Journal in 1998 which Goitein analyses one specific case’s violation of Homosexual rights by providing evidence from other similar cases of Homosexual conduct and criminal cases. The Yale Law Journal is the most widely cited and one of the oldest law reviews in the nation. The Journal’s mission is to disseminate legal scholarship to the world. In the Holmes case was a consolidation of two Military Officers, Lieutenant Watson and Holmes, who were discharged under the “DADT” Policy. They were discharged on the fact that the service members stated that they were Homosexuals. The policy afforded them the opportunity to provide evidence that they were individuals who do not engage in homosexual activity. They two Officers used the military courts to fight the policy based on their military record of service. Despite their outstanding record they were eventually discharged. They eventually filed complaints that their Fifth; equal protection, and First Amendment rights; freedom of speech, have been violated. In Watson’s complaint the Navy argued that the discharge was based on the likelihood homosexual conduct rather than the expression of homosexual conduct (Goitein, 1998). This seems to be a major play on words from the Navy during the complaint and was eventually challenged in the Holmes case. The United States District Court granted a summary due to the fact the “DADT” policy punished speech and status rather than the act of Homosexuality itself (Goitein, 1998). The issue is that the Military does not specifically state what Homosexual conduct truly is. The only word that comes close is “propensity” to engage in Homosexual activity. The issue remains that in many other criminal cases that the courts found it unconstitutional to penalize someone for their status absent of acts. So without a clear definition of homosexual activity and the inability to actually prove there was homosexual conduct is a violation of American rights.
The court eventually dismissed the charges due to the fact that the state had a right to protect the unit cohesion and morale. The question remains that when a Service Member openly admits that their gay could in turn be used as an admission of guilt in Homosexual conduct. This is a clear violation of the First and Fifth Amendment policies. How can we logically say that the admission of sexual preference affects unit morale? These statements from Military Officers were not based off of any evidence or actual fact or from isolated incidences. The ramifications from the court decisions on this policy are still seen today. There is a clear dismissal of Homosexual or Human rights based off of suspected or alleged possibility of disruption of unit cohesion. There still is no clear definition on the “DADT” which is still in effect today.
Time magazine published an article called “History of Gays in the Military” on February 2, 2010. The article was sparked by the President of the United States Barack Obama and his first State of the Union address. The President spoke on repealing the DADT policy because it violated the rights of Americans and denied them the opportunity to serve the country they love. The article brings history into play. Homosexuality has obviously been around since the beginning of...
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