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Log Cabin Republicans attorney: “Witt makes it more likely the government will appeal” pending DADT trial injunction

DADT trial

(Cross-posted from LGBTPOV)

By Karen Ocamb

On Thursday, Sept. 9, District Court Judge Virginia Phillips ruled in Log Cabin Republicans v. United States of America that DADT is unconstitutional and had a “direct and deleterious effect” on the armed services. She wants to issue an immediate injunction against further enforcement worldwide – but delayed imposing that injunction until the Log Cabin Republicans and the DOJ had time to argue why she should or should not immediately and permanently halt enforcement of DADT.

On Thursday, Sept. 23, the DOJ filed its response asking the judge to continue the ban. DOJ Assistant Attorney Freeborne said enjoining enforcement of DADT worldwide, as LCR called for, is “”untenable” and beyond Phillips’ authority. Freeborne wants to limit any relief to LCR’s 19,000 members only.

“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” Freeborne wrote.

On Friday, Sept. 24, the LCR smacked back, hard. During the trial this summer in Riverside, Freeborne andEarle Miller - LCR - DADT the DOJ attorneys were incredibly rude and cocky, including towards Judge Phillips. She was not intimidated – and LCR attorney Earle Miller (pictured) reminded her of that experience. In his introduction, he wrote that the DOJ acted as if the “Court conducted a mock trial in July or tendered an advisory opinion” about whether her authority was limited to this district or circuit.

“The Court: Are you suggesting that, theoretically, if a district court orders that any regulation or federal law is unconstitutional, it only applies in the district where the Court sits?

Freeborne: Well, Your Honor, we can put that issue aside. I just note that I think that….

The Court: That’s because I think you are incorrect.”

Miller agrees and with profuse citations (see the complete filing below), writes that “such breadth is appropriate here, where only a worldwide injunction will safeguard the constitutional rights of the military personnel following the facial invalidation of DADT.” Limiting the scope of the injunction to just LCR members “will not afford complete relief.” He wrote:

“In this case, where the Court has found DADT unconstitutional on its face, an injunction that covers only Log Cabin members, or only extends to the countries of the Central District of California, would not provide complete redress of the Constitutional violations complained of. In a facial challenge brought by an associational plaintiff seeking to vindicate the rights of a nationwide – indeed, worldwide – class of individuals, a worldwide injunction is necessary to give the plaintiff its relief.”

Miller also argued that the court’s order “should foreclose the government from relitigating the constitutionality of DADT in multiple venues on an as-applied basis,” which is “precisely the point of a facial challenge – to force a single determination that DADT is unconstitutional, and short-circuit the thousands of as-applied challenges that the government would apparently prefer to litigate from one end of the country to the other.”

A stay is “inappropriate while DADT continues to cause harm daily to homosexual servicemembers.” Miller also notes that the DOJ is not asking for a stay pending an appeal – but instead is “asking the Court to ‘defer’ entry of any injunction for an unspecified ‘reasonable time.’” He reminded Phillips that she’s already “rejected a similar claim.” Miller wrote:

“Finally, and most troubling, the government’s request for a stay ignores the ongoing harm that would be suffered by current and prospective homosexual members of the our armed forces during the indefinite stay period that the government requests. The Court has ruled that DADT violates these individuals’ Constitutional rights. It is sad and disappointing that the government asks these men and women to continue to serve our country bravely, patriotically, and silently to protect the constitutional rights of all Americans, while it asks the Court to deny their indefinitely.”

Miller’s conclusion:

“Only an injunction binding the United State and the Department of Defense wherever they have servicemembers subject to DADT will adequately protect the thousands of men and women whose Constitutional rights are daily violated by that policy. Full relief here requires nothing less than a worldwide injunction, and the Court should enter judgment for Log Cabin and such a permanent injunction.”

Dan-Woods-LCR-DADT1I emailed lead LCR attorney Dan Woods and Miller with a couple of questions, especially given the victory in the Witt case. Here are questions to Dan Woods, modified a little for clarity:

KO: The Witt case is as-applied. You’re arguing that the DADT injunction should be worldwide. IF Judge Phillips agrees with you and orders and injunction against enforcement – will that mean that the government can no longer appeal the Witt case – or any other DADT existing case? I understand the LCR case would not be retroactive – so I’m wondering about on-going cases such at Lt. Victor Fehrenbach.

Dan Woods: If the court issues the injunction we requested, the government could appeal Witt but it would also have to appeal our case. If the court issues the injunction we requested, I imagine Lt. Fehrenbach’s lawyers would also use it to their advantage, also giving the government another reason to appeal it, to prevent Fehrenbach from using our case because it is on appeal and therefore not final. In short, Witt makes it more likely the government will appeal our case.

KO: What is your best guess about how the judge will rule? Do you think she will be impacted by what happened with the Senate vote at all?

DW: I hope that Judge Phillips signs the form of permanent injunction we requested. I do not think the Senate vote this week will impact her decisionmaking, except perhaps on the issue of the government’s request for a stay, where the vote helps us argue against a stay.

KO: I just posted a piece on how upset folks are about the DADT Senate vote – and how now folks are turning to you guys. Do you have ANY idea of what a timeline for this case might look like?

DW: In terms of a timeline, I can only guess but I estimate that Judge Phillips will issue a permanent injunction, in one form or another, by the end of the next week. After that, the government has 60 days to appeal. In the meantime, they are likely to ask her to stay enforcement of the judgment, she is likely to refuse, and the government would then have to seek a stay from the Ninth Circuit Court of Appeals. Sorry it is so complicated.

My question to Miller was about an attachment that accompanied the filing. It was a scan of the Sept. 1993 ruling out of the Central District Court of California in the DADT case filed by Keith Meinhold. I am not a lawyer so I was confused as to why he attached it. I also asked if he thought the 9th Circuit will take the “deference” custom more to heart than did Judge Phillips? Miller said:

“The attachment we filed was the injunction that the district court issued in Meinhold’s case. After some intermediate skirmishing up to the Supreme Court, the 9th circuit reversed the injunction so far as it ordered the government to do anything other than with regard specifically to Meinhold.

In other words, since Meinhold brought his challenge “as-applied,” the 9th Circuit held that the injunctive relief should extend only to him and that was sufficient to give him full relief. We attached that order just to show Judge Phillips where we had taken some of the injunction language that the government objected to. That language was never actually enforced in the Meinhold case.

As for the military deference thing, the 9th Circuit has already held, in the Witt case, that (as we quoted in our brief) ” ‘deference does not mean abdication’ and Congress cannot subvert the guarantees of the Due Process Clause merely because it is legislating in the area of military affairs.” That is the best current indication of the views of the 9th Circuit that I know of.”

Though the federal LCR case has not received as much attention it warrants, it is my contention that this case is as shock full of evidence and expert witnesses as is the federal Prop 8 trial. It is remarkable to finally see discrimination based on sexual orientation laid out starkly in a court of law where evidence, not opinion or conjecture matter. Of course, judges are people with biases, too. But it is so nice to see two federal judges agree that lesbians and gays are being denied our constitutional rights.

And we should be grateful, too, to the lawyers who our fighting for our equality – in this case, two straight lawyers, Dan Woods and Earle Miller. And yet here is how Miller modestly signed off his email today:

“Thanks again for your interest in the case. We’re all happy to be helping to strengthen our country by pressing this issue forward.

Earle Miller

White & Case LLP”

Here is the Log Cabin Republicans’ response to the DOJ’s objections:

46 Comments

  • 1. Ann S.  |  September 25, 2010 at 8:03 am

    scribin'

  • 2. Lesbians Love Boies  |  September 25, 2010 at 8:06 am

    scribing so I don't miss anything, but still behind in posts!

  • 3. Chris in Lathrop  |  September 25, 2010 at 8:08 am

    Wow… I caught one early! :) Anyways…

    "…without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,”

    Exactly what effect is lessened attrition of forces during combat operations supposed to have? I can't imagine how these lawyers graduated law school with such lacking logic! Do all advocates of hatred just have foot-in-mouth disease, then? Sheesh.

  • 4. dtwirling  |  September 25, 2010 at 8:12 am

    Question: If the ruling (now, or in the future) only applies to LCR members… could servicemembers then join LCR to gain protection from DADT? I doubt it could work like that, but it'd be nice if it could.

  • 5. Jonathan H  |  September 25, 2010 at 8:15 am

    I love drowning in email!

  • 6. Kathleen  |  September 25, 2010 at 8:19 am

    Scribin' – cause I have fewer than 100 emails in my inbox.

  • 7. Lesbians Love Boies  |  September 25, 2010 at 8:25 am

    On page 10 of the document (scribd page 15) it states:

    In addition, the government is NOT (emphasis mine) asking for a stay pending appeal. Instead, it is asking the Court to "defer" entry of any injunction for an unspecified "reasonable time."

    What does that mean exactly?

  • 8. Gelz209  |  September 25, 2010 at 8:36 am

    Scribing

  • 9. Alan E  |  September 25, 2010 at 9:04 am

    Acrimony [this is the autocorrected word on my iPhone for scribing].

    Going to be way behind tomorrow.

  • 10. Sheryl Carver  |  September 25, 2010 at 9:09 am

    The DOJ's view of is that, at most, it should only apply to CURRENT members.

    Starts at Line 14, Document Page 6:

    "Moreover, given that an
    open-ended injunction would be tantamount to a nationwide injunction, this Court
    should limit relief to current LCR members." (emphasis mine)

  • 11. Sheryl Carver  |  September 25, 2010 at 9:13 am

    IANAL, but I'm guessing "pending appeal" means the stay is only as long as it takes for the appeal process to complete, or 60 days if the DOJ doesn't appeal.

    "An unspecified reasonable time" could be forever, with no appeal required. Thus, the DOJ could get what it wants without the bother of appealing or the risk of losing the appeal.

    What do the real legal experts think?

  • 12. JonT  |  September 25, 2010 at 9:25 am

    Agreed. I require a minimum of 200 emails a day to feel alive.

    :)

  • 13. Don in Texas  |  September 25, 2010 at 9:31 am

    But if they join LCR, they appear to be admitting their sexual orientation and, therefore, can be kicked out of the military.
    Catch-22.

  • 14. Lesbians Love Boies  |  September 25, 2010 at 9:38 am

    Dorothy Louise Taliaferro "Del" Martin (May 5, 1921 — August 27, 2008) and Phyllis Ann Lyon (born November 10, 1924) were an American lesbian couple known as feminist and gay-rights activists. They were a couple until Del Martin's death on August 27, 2008.

    Martin and Lyon met in 1950, became lovers in 1952, and moved in together on Valentine's Day 1953 in an apartment on Castro Street in San Francisco. They had been together for three years when they founded the Daughters of Bilitis (DOB) in San Francisco in 1955, which became the first social and political organization for lesbians in the United States. They both acted as president and editor of The Ladder until 1963, and remained involved in the DOB until joining the National Organization for Women (NOW) as the first lesbian couple to do so.

    Both women worked to form the Council on Religion and the Homosexual (CRH) in northern California to persuade ministers to accept homosexuals into churches, and used their influence to decriminalize homosexuality in the late 1960s and early 1970s. They became politically active in San Francisco's first gay political organization, the Alice B. Toklas Democratic Club, which influenced Dianne Feinstein to sponsor a citywide bill to outlaw employment discrimination for gays and lesbians. Both served in the White House Conference on Aging in 1995.

    They were married on June 16, 2008 in the first same-sex wedding to take place in San Francisco after the California Supreme Court's decision in In re Marriage Cases legalized same-sex marriage in California. Martin died from complications of an arm bone fracture in San Francisco.

    http://www.youtube.com/watch?v=-dHaISDy6CU

  • 15. Rhie  |  September 25, 2010 at 9:39 am

    Same here

  • 16. Lesbians Love Boies  |  September 25, 2010 at 9:40 am

    If you have a dry eye after watching this video, something is wrong.

  • 17. Michael Ejercito  |  September 25, 2010 at 10:18 am

    There is a good reason for this, as it was outlined in their brief. "As the Supreme Court has made clear, the United States is not a typical
    defendant, and a court must exercise caution before entering an order that would
    limit the ability of the government to enforce a law duly enacted by Congress, or
    defend its constitutionality in other tribunals
    . This is especially true where, as is
    the case here, the law at issue has been found constitutional in numerous other
    courts throughout the country. See Cook v. Gates, 528 F.3d 42, 65 (1st Cir. 2008);
    Able v. United States, 155 F.3d 628, 631-36 (2d Cir. 1998); Richenberg v. Perry,
    97 F.3d 256, 260-63 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 926-34
    (4th Cir. 1996) (en banc)."

    The full link to their brief is here .

  • 18. Michael Ejercito  |  September 25, 2010 at 10:21 am

    The government is arguing it should only apply to servicemen who were members at the time the district court injunction was issued.

  • 19. Sagesse  |  September 25, 2010 at 10:37 am

    Do inboxes have a limit?

  • 20. Ann S.  |  September 25, 2010 at 10:43 am

    I'm sure we'll find out!

  • 21. Lesbians Love Boies  |  September 25, 2010 at 10:46 am

    only when your mailbox exceeds the storage limit

  • 22. Lesbians Love Boies  |  September 25, 2010 at 10:48 am

    sorry, capacity, not count…ie gmail has 7501MB limit, when you exceed that, you will get a warning (there is a little room to go over in gmail).

  • 23. Sagesse  |  September 25, 2010 at 10:56 am

    @LLB

    The question was rueful and rhetorical :).

  • 24. Tomato  |  September 25, 2010 at 10:56 am

    No dry eyes here.

    That wedding was incredibly important, and ours had more meaning because they were first.

    (My wife and I waved our ring-hands at him during SF Pride, and he applauded us.)

  • 25. Richard A. Walter (s  |  September 25, 2010 at 11:03 am

    Will read more of this later. Two days of house guests, unexpected events yesterday, and NCPride in Durham today, so have plenty to catch up on.

  • 26. Ann S.  |  September 25, 2010 at 11:15 am

    So beautiful. No dry eyes here.

    My brother and his husband were married the following morning. There were no protesters, they have been busy protesting the marriage of Del and Phyllis. Something is wrong with them if they think that the union of these two women could somehow harm them.

  • 27. Lesbians Love Boies  |  September 25, 2010 at 11:26 am

    I can't believe there were protesters. How insane.

    But I have a sneaking suspicion those two women have seen so much more than I ever will in terms of hatred…and yet they remained together all those years and waited until the day they could get legally married. And they made it. I am so happy for them, but so incredibly sad for the ones who didn't make it, and the ones who don't have that right any longer.

    One day…and I hope we are all alive to rejoice in the love of a spouse.

  • 28. Sagesse  |  September 25, 2010 at 11:47 am

    I liked Gavin Newsom's line (part of the service I think) 'and don't take each other for granted.' They were together for as long as I've been alive (and that's a very long time). He kinda laughed when he said it.

  • 29. Kathleen  |  September 25, 2010 at 12:53 pm

    Looking forward to your return, Richard. Miss you!

  • 30. Ronnie  |  September 25, 2010 at 1:33 pm

    yeah….and?….rhetorical question…please don't answer….. ; ) ….Ronnie

  • 31. Jonathan H  |  September 25, 2010 at 1:42 pm

    As everyone else said, the DOJ is saying that it should only apply to current LCR members. Then it goes on to say that since they don't know who the LCR members are, (because they'd have been discharged under DADT) that nobody actually gains any protection.
    Oh, and the government shouldn't pay for it, because even though they lost this time, they've won in the past and that means they shouldn't have to pay for defending DADT again.

    I'd say it's the stupidest thing that I've ever seen the government say, but since Bush was president for two terms it might not even make the top ten.

  • 32. Ronnie  |  September 25, 2010 at 1:43 pm

    DADT is unconstitutional….GET OVER IT…I'm tired of my money be stolen from me….just to be used against me & innocent people like me to make some homophobic Fascists feel comfortable in their insignificant lives….REPEAL THE GOD-DAMN LAW….& if you don't like it, Michael Ejercito the realtor ….then GO HOME!!!…better yet move to a theocratic country…this country is Secular….again…GET OVER IT!!!…. >I …Ronnie

  • 33. AndrewPDX  |  September 25, 2010 at 2:00 pm

    Subscribing… late to the party (been moving all day)

    Liberty, Equality, Fraternity
    Andrew

  • 34. bJason  |  September 25, 2010 at 11:22 pm

    What the Government is asking is that the Judge NOT enter her ruling for "an unspecified reasonable time". This would mean, effectively – I think – that there would be no injunction and the clock would not start ticking on the amount of time the Government has to appeal. In essence, there would be no decision TO appeal.

    Someone correct me if I am wrong.

  • 35. Michael Ejercito  |  September 26, 2010 at 2:24 am

    As everyone else said, the DOJ is saying that it should only apply to current LCR members. Then it goes on to say that since they don’t know who the LCR members are, (because they’d have been discharged under DADT) that nobody actually gains any protection.

    The actual named plaintiffs in the suit were LCR members.

    This could lead to further litigation as servicemen dishcarged under DADT and claiming to be LCR members would have to demonstrate that they were members at the time the injunction was lifted.

    Of course, this would become largely moot once the Ninth Circuit issues a ruling on the merits, as it would be binding on all federal courts in the circuit as a matter of precedent.

  • 36. Michael Ejercito  |  September 26, 2010 at 2:31 am

    And yet, the First Circuit ruled otherwise in Cook v. Gates , despite applying heightened scrutiny

  • 37. Ronnie  |  September 26, 2010 at 7:27 am

    Yeah…and…you're point is? (rhetorical question)….you're still an insignificant fascist pig…. >I …Ronnie

  • 38. Elizabeth Oakes  |  September 26, 2010 at 7:35 am

    *in that secretive Maxwell House coffee-switcheroo commericial voice*

    ….What Michael doesn't seem to know is that a highly qualified Republican-appointed federal judge has already ruled in our favor, and that trumps his cut 'n' paste agitprop postings no matter how many times he hits the 'refresh' button. Will he notice when these rulings become settled law, or will he continue to live in his anti-gay Fantasyland?

    …only his hairdresser knows for sure!

  • 39. Jonathan H  |  September 26, 2010 at 10:08 am

    "…only his hairdresser knows for sure!"

    Great Caesar's Ghost Elizabeth are you trying to kill me with laughter? I think I sprained something!

  • 40. Michael Ejercito  |  September 26, 2010 at 12:54 pm

    Yeah…and…you’re point is? (rhetorical question)….you’re still an insignificant fascist pig…. >I …Ronnie

    There are two conflicting court rulings, on the same legal questions, in different circuits. It is proper for the government to operate on the assumption that DADT is constitutional and file appeals given the differences of opinion in court.

    If the Ninth Circuit ultimately rules contrary to the First Circuit, then the U.S. Supreme Court will have to decide.

  • 41. Michael Ejercito  |  September 26, 2010 at 12:56 pm

    What Michael doesn’t seem to know is that a highly qualified Republican-appointed federal judge has already ruled in our favor

    And ruled contrary to the First Circuit 's Cook v. Gates ruling.

    There seems to be a difference in opinion in the courts on this issue.

  • 42. Ronnie  |  September 26, 2010 at 1:00 pm

    you attempted to answer a a rhetorical question….obviously failed if was an actual question……are you a f@#king idiot?….do you not know what rhetorical means, TROLL?

    X)…..Ronnie

  • 43. Ronnie  |  September 26, 2010 at 1:01 pm

    yeah &?…..that's all…. X) ….Ronnie

  • 44. Michael Ejercito  |  September 26, 2010 at 1:05 pm

    The government has every reason to pursue the appeal.

  • 45. Kathleen  |  September 26, 2010 at 1:25 pm

    I really don't have the time to explain all the ways your comments are inaccurate, misleading, ill informed, etc. As I suggested before, given your apparent interest in the law, your time would be better spent submitting applications to law schools. In the meantime, PLEASE go back to looking for real estate sales and leave the legal analysis to people with some background in the law.

  • 46. Michael Ejercito  |  September 27, 2010 at 12:50 am

    Does Judge Philips's ruling in LCR consistent with the First Circuit's ruling in Cook ?

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