With DADT Repeal, Log Cabin Victory Vacated

Saying issue is “moot,” Ninth Circuit declines to hear appeal, renders 2010 ruling on constitutionality a nullity

Finding that the “case or controversy” that gave rise to the Log Cabin Republicans’ (LCR) lawsuit challenging the Don’t Ask, Don’t Tell (DADT) policy’s constitutionality and enforcement was put to rest by the September 20 repeal, a three-judge panel of the US Court of Appeals for the Ninth Circuit has ruled that the court has no jurisdiction to decide the government’s appeal of District Judge Virginia Phillips’ decision to strike down the policy last year.

Since the government will not have its day in court to challenge her ruling that the anti-gay policy violated the Fifth Amendment due process rights and First Amendment free speech rights of gay and lesbian service members, the San Francisco-based panel’s September 29 ruling vacated Phillips’ decision and returned the case to the District Court with instructions to dismiss it as moot. Phillips’ decision will therefore effectively be wiped off the books and rendered a nullity.

Phillips’ ruling was in force for several days last fall before the Ninth Circuit stayed it pending the government’s appeal, and the status of her decision was called into question once President Barack Obama signed the DADT Repeal Act on December 22. That law did not immediately end the policy nor did it affirmatively establish the rights of gays and lesbians to serve in the military. Instead, it required the president, defense secretary, and chair of the Joint Chiefs of Staff to certify that ending the policy would not impair military effectiveness before moving on its demise. Obama, Defense Secretary Leon Panetta, and Joint Chiefs Chair Michael Mullen made that certification in late July, which allowed the Pentagon to end DADT 60 days later.

In early 2011, the government moved to put the case on hold while the steps spelled out by the Repeal Act were carried out. LCR’s counsel, Dan Woods of White & Case, argued that the law’s provisions were conditional and uncertain, and the court denied the government’s request to suspend the proceedings. Parties were instructed to submit briefs on the government’s challenge to Phillips’ ruling and on LCR’s appeal of her dismissal of the group’s equal protection claims.

The government made the argument that in the wake of the Repeal Act, the question of DADT’s constitutionality was no longer at play and that instead the issue was whether the mechanism Congress adopted establishing the conditions for repeal was constitutional.

Although the repeal was certified in July, the panel heard argument on September 1, at which time LCR made the case that even if the policy expired on September 20, its challenge remained significant for several reasons. The Repeal Act merely allowed the Pentagon to end the policy, it did not require the military to open up service to gay and lesbian soldiers, nor did it give them nondiscrimination protections. Even if DADT goes away, the Executive Branch retains a free hand to set conditions on gay and lesbian service –– under Obama or any successor.

LCR also pointed to other cases and claims for injuries suffered by individuals due to DADT’s past enforcement that are pending in the courts or could be brought. The policy’s constitutionality is relevant to those cases, so the appeal process should be allowed to play out, the group argued.

But the government persuaded the court that well established precedent holds that if Congress repeals a statute subject to constitutional challenge, a lawsuit mounting that claim is moot as is any district court finding for the plaintiffs. The appeals panel pointed out that LCR's standing as a plaintiff was limited to seeking a declaration the policy was unconstitutional and an injunction against its enforcement.

With the policy repealed, an injunction against its enforcement would be meaningless. The possibility that Congress or the Executive would reinstate the policy or a similar constraint on gay and lesbian service members serving openly was purely speculative, the panel found.

Responding to LCR’s argument that the constitutional question was relevant to other claims regarding past enforcement of DADT, the panel wrote, “Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Despite the fact that the panel ruled the Ninth Circuit lacked jurisdiction to consider the appeals of Phillips’ ruling, one member, Circuit Judge Diarmuid F. O’Scannlain, saw fit to write a lengthy concurring opinion repudiating Phillips’ use of the 2003 Lawrence v. Texas sodomy decision in applying heightened scrutiny to the government’s arguments defending DADT.

Given the criticism some leading Republican presidential candidates have made regarding DADT’s repeal –– and the ability of the Executive Branch to reinstitute restrictions on gay and lesbian service, potentially without congressional approval –– the question about the policy’s constitutionality, unfortunately, is not purely academic.

Woods stated he will seek review of the three-judge panel’s ruling by an en banc panel of the full Ninth Circuit Court of Appeals.

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