Yesterday the Supreme Court decided against hearing on appeal a challenge to the military's Don't Ask/Don't Tell policy. So first off, a pox on every headline writer who announced that the Court "upheld" the policy. One of the first things you learn in law school is that the Court declining to hear an appeal (denying certiorari in lawyerspeak) is not the same as upholding the result below. Often the Court just doesn't feel the case isn't the best for deciding the issue.
Chris Geidner blogging at Law Dork explained this and more, including what he calls the "odd background posture" of the case:
- Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy. The organization, however, was no longer representing James Pietrangelo when he sought certiorari. SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case.
For a little broader context, consider the dissent among gay activists over the high profile suit challenging California's Prop 8 gay marriage ban. Again, just reading this from afar it appears that gay activists are seeing greater chances of success (and of minimizing backlash) by securing legislative victories as opposed to court challenges.
Enter Time Magazine. They've posted a story headlined "Dismay Over Obama's Turnabout on 'Don't Ask Don't Tell.' Who is dismayed? Well, the entire story consists of Pietrangelo hurling invective at Obama. Not one recognized leader of the gay community is quoted. If Chris Geidner, a blogger in flyover country (though granted an extremely well-read and well-connected one) understands the backstory of the case, why can't Time at least offer a little balancing perspective before winding Pietrangelo up and watching him go?
But no worries. This post will soon hit my Twitter feed. And that will change everything.