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This is the first in a series of comments from this AP report. Part two is here, and part there here.
We all know how much the Christian-dominated military hates gays, but do they hate naked women too? Maybe it's self-hate, then. It's never good to repress ones sexual orientation, you know. From the AP:
An Air Force staff sergeant who posed nude for Playboy magazine has been relieved of her duties while the military investigates, officials said Thursday. [...] "This staff sergeant's alleged action does not meet the high standards we expect of our airmen, nor does it comply with the Air Force's core values of integrity, service before self, and excellence in all we do," Oscar Balladares, spokesman for Lackland Air Force Base, said in a statement.
Irrelevant. If she was on duty, then posing for the mens magazine means she was AWOL and is in a heck of a lot more trouble than not meeting the exceedingly low high standards of the United States military. Since that doesn't appear to be the case, one can only assume she was on some sort of leave, and acting in her own personal capacity, and not subject to military regulations. As such, any actions already taken and any further action by the military represents an unconstitutional abridgement of the first amendment. Thou shalt not abridge speech comes long before Thou shalt not offend a Christian-dominated military by getting naked.
Though a few people on Newsvine seem to be sadly lacking an understanding of Constitutional law (and shamefully so) and believe that the UCMJ somehow trumps the Constitution itself. Rather than repeat myself, I'll just treat you to the full text of my reasoned response here. Enjoy.
PWT, you would be wrong. Again, there are a number of things about that military that do not apply to civilians
The first amendment trumps everything but threats and national security, and sometimes not even then. And arguably, even those things are not exceptions if you read the statute as literal. (State secrets is a serious concern as it plainly violates the Constitution on its face, but its existence does not make it right or legal.) Regardless, the Constitution trumps the UCMJ. It trumps everything, that's the point of it. Law must emanate from Constitution, therefore anything that changes it must come from it.
Clothing has long been recognized as a form of speech and is protected now as it ever was.
Good catch Cash -- the UCMJ does supersede the Constitution on a number of issues.
Nothing supersedes the Constitution. Nothing. If people assume so, it is only because unconstitutional statutes haven't been challenged in a competent court of law and properly tossed.
You guys, Congress wrote the UCMJ, and Congress is subservient to the Constitution. As an act of Congress, the UCMJ cannot supersede Constitution unless Constitution allows it. For the time being, it does no such thing, nor should it ever.
Article I, Section 1: Delegates all legislative powers to the Congress. Article I, Section 2: The composition and voting rights of the House. Article I, Section 3: The composition and voting rights of the Senate. Article I, Section 4: Places, manners, and times for elections. Article I, Section 5: Makes each house the master of its own rules and proceedings, with the exception of adjournment of greater than three days, which must be agreed upon by both. Article I, Section 6: Gives Congressmen immunity while in session for their work, requires them to be paid, and forbids them from serving under the executive branch while in office. Article I, Section 7: Requires House and Senate concurrence on bills, and the Presidents signature or veto. Article I, Section 8: Bestows rights upon the Congress (to tax, pay debts, borrow money, make money, create a Navy, etc.) These are all rights of creation and execution; they are not mandatory. Article I, Section 9: Habeas Corpus; No taxation without a census, No taxing intra-state exports, no preference over other states; can't take money from the treasury without a bill, and no title of nobility granted to anyone, ever. Article I, Section 10: Forbids the states from doing things just granted as rights of Congress, such as creating treaties or making money.
Article II, Section 1: Creates the office of the President and lays out rules for federal elections; limits on who may be President; succession; payment; the oath of office. Article II, Section 2: President as Commander in Chief; with advice and consent, treaties; appointments, vacancies. Article II, Section 3: Mandates the state-of-the-union, but not when. Article II, Section 4: President, VP, all civil officers must be removed from office on impeachment and conviction.
Article III, Section 1: Creates the Supreme Court, and at Congressional will, inferior courts. Article III, Section 2: Gives the power of judicial review of all cases arising under the Constitution; limits and extensions to SC jurisdiction; all trials of crime except impeachment must be by jury. Article III, Section 3: Definitions of treason.
Article IV, Section 1: All states must respect the acts, records, and judicial proceedings of all other states, also known as the "Full Faith and Credit Clause". Article IV, Section 2: citizenship, extradition. Article IV, Section 3: Allows new states to join the union, but forbids another state from forming inside another without state legislature and congressional approval. (Ed: Sorry, D.C.) Article IV, Section 4: Guarantees that each state will essentially mimic the federal government as a Republic, and promises to protect them.
Article V: Gives Congress the right to amend the Constitution, and how such amendments must be ratified.
Article VI: All debts proior to the Constitution are still valid; "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"; binds the courts to the law, and all members of all branches of government to their oaths; forbids religious tests for qualification.
Article VII: Ratification of the nine states deemed sufficient for establishment, signatures.
So far, the Constitution has made painfully clear that it supersedes all laws while providing for its amendment, and binds all three branches of government as subservient to it. In so regardless as to what any particular law says, the military is bound by law. *This law*.
I continue; Amendments to the Constitution;
Article I: Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article II: Guns.
Article III: No Soldier shall, in time of peace by quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Article IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War, or public danger; nor shall any person be subject for the same offence to be twice out in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall property be taken for public use, without just compensation.
No other amendments concern the creation of law; the creation and administration of the military; the rights of speech; the military in any capacity at all. This is not the first time I've read the Constitution and all of its amendments, and I am sure it won't be the last. What is lasting however is my distinct impression that while the Constitution allows for popular law to govern aspects of it, nothing may ever supersede it absent an amendment which changes it. That is entirely the point of it.
The UCMJ, having been a creation of Congress and existing as a popular law, cannot supersede the Constitution. Any interpretation supporting such a conclusion is mistaken; any judicial ruling in error. Ultimately the UCMJ is a law like any other. No order given may be valid, no law created shall be legal that violate the Constitution.
Ipso facto, the military's attempt to repress speech is unconstitutional and would not withstand the courts strict scrutiny.
