September 1, 2011
By Adam Bink
The case filed by LCR is up for an appeal hearing today. Most folks are thinking, why does this matter, DADT will end this month? Over at LGBTPOV.com, Tom Carpenter makes a case:
On Thursday, Sept. 1, in the Federal Court in Pasadena, the Obama Justice Department lawyers will try to convince a three-judge panel that – with the impending repeal of DADT – the case is moot, asking them to send the matter back to Judge Phillips and instructing her to dismiss the case.
Judge Phillip’s decision had two parts. The first awarded declaratory relief, ruling that DADT infringed on the fundamental rights of current and prospective service members and violated their Fifth Amendment due process rights and their First Amendment rights of freedom of speech and petition.
The second part awarded injunctive relief, enjoining the government from enforcing or applying DADT and its implementing regulations, and ordering the government to suspend and discontinue investigations and discharge proceedings.
Lawyers for the Log Cabin Republicans will likely agree with the government that when repeal is finally in place, the second part of the decision will be moot, meaning “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” However, the first part of the decision, finding the law unconstitutional, is not.
Why is this important?
Consider what happened in the last several months before certification and during the 60-day waiting period: the Republican controlled House of Representatives approved legislation to block funds for the military’s training for DADT repeal.
Additionally, three leading potential Republican candidates for President – Michelle Bachmann, Rick Perry, and Mitt Romney – have publicly stated that as President they would support reinstatement of DADT. There is also a very real possibility there may be a new Republican Administration and Congress after the 2012 elections that could reinstate DADT.
And, even if President Obama has a second term, his administration has failed to respond to the demand by SLDN to issue an executive order or other regulation outlawing discrimination based on sexual orientation. (See SLDN’s recent letter to Defense Sec. Penetta here) Only a decision of the Court of Appeals affirming the district court’s declaratory judgment that the law is unconstitutional, with no appeal to the United States Supreme Court by the Obama Justice Department, can conclusively drive a stake through the heart of the policy.
More from The Advocate, quoting Dan Woods, the lead attorney.