BY ARTHUR S. LEONARD | Despite the enactment in December of the Don’t Ask, Don’t Tell Repeal Act of 2010, laying out a roadmap for ending the military’s anti-gay policy, the Department of Justice (DOJ), on February 25, filed its brief supporting its appeal of a ruling last September striking down the ban as unconstitutional on its face.
Several weeks after her decision in Log Cabin Republicans v. United States, District Court Judge Virginia Phillips of California ordered the military to immediately cease enforcement of Don’t Ask, Don’t Tell, a ruling that temporarily suspended the policy, until a Ninth Circuit panel stepped in.
In Log Cabin appeal, Justice says Congress has prerogative to guide repeal
Following passage of the repeal statute, DOJ initially tried to have the Log Cabin suit held “in abeyance” pending its full implementation, but that motion was denied, also by a 9th Circuit panel.
The government’s initial grounds for appeal were based on its challenge to the standing of the Log Cabin Republicans to bring its suit, to the extent of the district court’s authority to order a remedy, and to the merits of Phillips’ findings on the policy’s constitutionality.
In light of the repeal statute signed by President Barack Obama on December 22, however, DOJ, in an unusual move, reframed the question as follows: “Whether Congress lacked the constitutional authority to establish an orderly process for repeal of [Don’t Ask, Don’t Tell], while keeping the former statute in place and maintaining the status quo during the transition in policy.”
This is a significant shift for the DOJ, but that seems consistent with its announcement last week that it now concedes that equal protection claims concerning sexual orientation require heightened scrutiny .
When Phillips decided the case last year, she dismissed the equal protection claim the Log Cabin suit raised, in line with 9th Circuit precedent that sexual orientation classifications in law need merely survive rational basis judicial review, under which a statute is presumed constitutional unless it can be proved there is no plausible non-discriminatory rationale for it. Under heightened scrutiny, the burden shifts to the government to show that such a classification is substantially related to an important government objective.
Phillips instead found for the Log Cabin Republicans on due process and free speech grounds.
LCR is appealing the judge’s dismissal of its equal protection claim, and the position DOJ took last week on pending Defense of Marriage Act litigation suggests the government might not contest the plaintiffs on this issue.
Given that the Log Cabin suit could be moot soon, the easiest out for the 9th Circuit might be to accept the government’s longstanding position that the plaintiff lacked standing. In order to have organizational standing to contest a law’s constitutionality, a group must have members whose constitutional rights are threatened by its enforcement. DOJ persuasively argues that at the time LCR filed its initial complaint in 2004, it had no such members.
LCR sought to sidestep this problem by conferring “honorary membership” on Alexander Nicholson, director of Servicemembers United, an organization of gay active duty soldiers and veterans, but the government responded that Nicholson was no longer in active service — and by all accounts, not a Republican, so therefore ineligible for membership under the group’s by-laws.
As a result, prior to filing its amended complaint, LCR recruited an active-duty member of the military to join the organization on an anonymous basis. In response to this, DOJ argued that by relying on such a “hypothetical” plaintiff, the group could not demonstrate credibly that the individual was in real danger of discharge under Don’t Ask, Don’t Tell. On this point, the government was less persuasive, since the “John Doe” plaintiff would immediately be subjected to discharge should they be forced to abandon anonymity.
The government was on firmer ground in arguing that John Doe was not a member of Log Cabin at the date of the original complaint, having been recruited only for purposes of the amended filing.
One or more of the technical issues advanced by DOJ could be used by the 9th Circuit to justify an order that Judge Phillips’ decision be vacated and the case dismissed.
A more irregular response by the 9th Circuit would be to accept DOJ’s repositioning of the merits question and consider solely whether the current situation — in which Congress has passed the Repeal Act and implementation is proceeding to a likely conclusion by year’s end — is sufficient to meet any constitutional requirements. On this question, DOJ notes that the 9th Circuit panel that stayed Phillips’ order to immediately cease the policy’s enforcement last fall apparently sympathized with the government’s argument that an orderly repeal process was necessary to avoid undue military disruption. This perspective is in line with the customary deference the courts have shown to Congress and the president on questions of military policy.
In responding to this DOJ brief, Log Cabin will likely vociferously protest DOJ’s attempt to reframe the question before the court on the ground that it had not been previously litigated. The group will certainly also reiterate Phillips’ ruling on its standing and the appropriate relief.
The DOJ has also argued that because the Log Cabin suit was not certified as a class action on behalf of all lesbian, gay, and bisexual service members, any remedy should only apply to John Doe and Nicholson, should he see to reenlist.
It’s all a tangled mess, and it actually makes little sense for the 9th Circuit to schedule oral argument as long as the Defense Department appears headed for expeditious completion of the repeal process. The DOJ brief alleges that this process is well underway, with new policies having been devised and training is soon to begin, with an intent to complete the process in a matter of months.
Still, the appeal ought not be dismissed and the district court’s decision shouldn’t be vacated for now, since holding this sword over the Defense Department may help to ensure continued best efforts toward repeal by the military. It’s not unlikely that threat is what Judge Phillips had in mind with her provocative immediate worldwide injunction last fall.