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DADT trial

By Eden James

When the breaking news rains, it comes down like a hurricane. And, today, it’s all been good news.

Judge Virginia Phillips just ruled against the Department of Justice, denying its request for a stay of injunction in Log Cabin Republicans vs United States of America.

Kathleen, as usual, is on top of it with the Scribd doc:

[scribd id=39699756 key=key-1gkjq6qivj3i55ir41do mode=list]

Clarke Cooper, Executive Director of Log Cabin Republicans:

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen. As this past week has shown, our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom. As Commander in Chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security. The president has said that ‘Don’t Ask, Don’t Tell’ will end on his watch, but is currently standing in the way of its demise. Log Cabin Republicans will continue to fight this policy no matter how many obstacles he puts in the way.”

Dan Woods, White & Case:

“We applaud Judge Phillips’s ruling denying the government’s request for a stay of injunction, as it brings us one step closer toward ending once and for all this unconstitutional policy that President Obama and Congress seem incapable or unwilling to end themselves,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans in Log Cabin Republicans vs United States of America. “Meanwhile, homosexual servicemembers are fighting and dying today in two wars for their fellow Americans’ constitutional rights, while their own constitutional rights are being held hostage to an uncertain bureaucratic process that seems more interested in beancounting the trouble they would be put to from modifying their training materials than in protecting these servicemembers’ civil rights.”

Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

UPDATE: The Boston Herald with word from the DoJ and Pentagon:

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.


  • 1. Kathleen  |  October 19, 2010 at 11:04 am

  • 2. Ann S.  |  October 19, 2010 at 11:07 am


  • 3. JonT  |  October 19, 2010 at 11:16 am

  • 4. StraightForEquality  |  October 19, 2010 at 11:30 am


  • 5. Ronnie  |  October 19, 2010 at 11:11 am

    More hype…more hype….I love it!!!!!….<3…Ronnie

  • 6. MJFargo  |  October 19, 2010 at 11:12 am

    I suppose, Kathleen, one of these days you're going to give us bad news, but so far….

    Thanks, thanks, thanks (again and again)

  • 7. DebbieC  |  October 19, 2010 at 11:14 am

    Dan Choi's re-enlisted. Have to believe it will all work out for the best in the long run.

  • 8. allen  |  October 19, 2010 at 11:22 am

    That's probably the best news of my day. Choi sounds like a great character through and through and he has a great attitude about re-enlisting and being patriotic.

    He's kinda become a hero for DADT as the Olsen and Boies team are for marriage equality.


  • 9. Rhie  |  October 19, 2010 at 11:45 am

    I have a few questions on his rank…

    Didn't he graduate Annapolis? So, won't he return at some officer rank?

  • 10. JonT  |  October 19, 2010 at 11:58 am

    My understanding is that as he cannot join the Marines, and instead, has applied for the Army, he would start at the bottom – he cannot retain his previous rank.

    As he has a college degree, his title would be Specialist.

    (I got this from the video – his own words).

  • 11. Don in Texas  |  October 20, 2010 at 1:46 am

    Lt. Choi graduated from West Point. He possesses critical skills needed by the Army. I am unfamiliar with Army Regulations, but it seems to me he is fully qualified for his former rank of First Lieutenant.

  • 12. Freddy  |  October 20, 2010 at 1:26 am

    As of right now, Lt. Dan Choi has not re-enlisted, the process takes longer than a couple of hours and any one that has sat in a recruiters office and then a MEPS station for an enlistment knows this, once your packet is assembled by the recruiter and is reviewed by his boss, you then get your appt. at MEPS where you go through the poking and prodding by the doctors and what not, you sit with the career counselor and choose a position, then the contract is drawn up by someone in a different office, after all the paperwork is generated and believe me, there is lots of paperwork, then you wait for a commissioned officer to perform the enlistment ceremony, recruiter stations like the one in NYC don't have to staff to do anything more than assemble the packet and collect the waivers to send to the regional command for approval. That said, Lt. Choi being prior service, there will be extra waivers, letters of recommendation and other paperwork that is required. The short of the story is that it will take him a minimum of a week to get all this accomplished and that is if it gets pushed through quickly, for a normal applicant like myself it can and did take 3 months to get all this done.

  • 13. Aaron  |  October 19, 2010 at 11:29 am

    so the injunction remains until the 9th cna rule?

  • 14. Kathleen  |  October 19, 2010 at 2:24 pm

    Aaron, at present the injunction stays in place. However, I expect the DoJ to go to the 9th Circuit and, if necessary, the Supreme Court to ask for a stay. We'll probably see an application to the 9th Circuit early tomorrow.

  • 15. Alan E.  |  October 19, 2010 at 11:30 am

    Well duh!

  • 16. Dane  |  October 19, 2010 at 11:31 am

    I am a student but I am just curious if the appeal is almost a good thing at this point? I understand that it could have pushed us back but because it didn't doesn't it make the ruling more powerful because now resistance has been put up and it won. (An uncontested leader is a little weaker than a leader who fought over his right to lead)

    I don't know anything about law but I was just curious.

  • 17. Joel  |  October 19, 2010 at 12:03 pm

    It's not a denial to appeal, Dane. It's a denial of stay pending appeal (which will also be appealed). It means that the judge's order goes into affect immediately, regardless of whether an appeal is filed or not. Legal heroes, am I right?

  • 18. Rhie  |  October 19, 2010 at 11:44 am

    *Stomps and whistles*

  • 19. GALY  |  October 19, 2010 at 11:51 am

    Marine, when referring to a United States Marine is ALWAYS capitalized.

  • 20. JonT  |  October 19, 2010 at 11:53 am

    Sir! Yes Sir!

  • 21. Craig  |  October 20, 2010 at 1:00 am

    … um, not if someone chooses not to capitalize it. (LOL!)

  • 22. Rhie  |  October 20, 2010 at 4:40 pm

    If it's not capitalized it doesn't refer to a US Marine. It refers to a shade of blue, or to a word that means in regards to the sea.

    Just because a person chooses to be disrespectful and grammatically incorrect doesn't make it right.

  • 23. Sagesse  |  October 19, 2010 at 12:17 pm

    And checking another box.

  • 24. Bill  |  October 19, 2010 at 1:05 pm

    I believe Choi was graduated from West Point.

  • 25. Matthew  |  October 19, 2010 at 1:20 pm

    Seems cut and dry to me.

    Obama's 'says' he agrees DADT is unconstitutional and it undermines national security. Can't they just show the video of him saying that to the 9th circuit. Nuff said!

    DADT is effectively gone now an the sky didn't fall. Anyone who tries to reinstate it now will go down I'm infamy.

  • 26. Bluprntguy  |  October 19, 2010 at 11:41 pm

    Just as a clarification, I don't think Obama has said that DADT is unconstitutional. I think he has called it things like unfair and unjust.

  • 27. Sagesse  |  October 20, 2010 at 12:12 am

    He has also called it discriminatory, but has never used the word 'unconstitutional'. I believe that is in deference to the Supreme Court. It is still controversial whether discrimination based on sexual orientation is 'unconstitutional', and until the Supreme Court gets a case and says so, it is presumptuous for the president or the administration to do so. No one is sure what the Roberts court would say about Perry or LCR… so these rights cannot be 'clearly' or 'obviously' unconstitutional…. yet. The evidence is piling up, though.

  • 28. Bob  |  October 19, 2010 at 1:38 pm

    Obama's appeal if it comes to that is a good thing, and I want to reword something I said about htis on an earlier post, He doesn't have to stand up and say it's unconstutional, that would negate the appeal or whatever,

    So i was thnking he would word his appeal in a mild form of disagreement.

    But having thought about it, Obama could go with the strongest defense of DADT, and bottom line is, the strongest defense in this case is exactly the same as the strongest arguments by proponents in the prop8 trial

    In other words the strongest defense of DADT is laughable.

  • 29. Elizabeth Oakes  |  October 19, 2010 at 2:39 pm

    Well….WOOT again, at least for now. We'll see what the appellate courts say about the stay pending appeal. Go Judge Phillips!

  • 30. Larry  |  October 19, 2010 at 8:44 pm

    Let's be a little more accurate here than what you've written:

    “Meanwhile, homosexual servicemembers are fighting and dying today in two wars for their fellow Americans’ constitutional rights…."

    Our service members are fighting and dying for corporate America—ie, for oil & minerals–in both Iraq & Afghanistan. To suggest they are fighting & dying to protect our civil liberties at home is just a ruse.

  • 31. Rainfish2000  |  October 19, 2010 at 9:18 pm

    The U.S. Court of Appeals for the D.C. Circuit ruled Aug. 6 that the Park Service’s regulation forcing individuals or small groups to obtain a permit for First Amendment activities was unconstitutional. But the court upheld the agency’s policy of setting aside designated park areas for larger demonstrations and the sale of printed material after applicants obtained a permit.

    The Justice Department this week DECLINED to appeal the ruling.


    hmmmmmmm…really? Well, doesn't that just set a BAD precedent for other Presidents in the future who refuse to defend other laws THEY don't like? Geez, some Obots will say anything to defend that spineless homophobic cretin Obama. Sorry, he doesn't get a pass on this one — except maybe from some diehard masochistic morons who are so afraid of the Republican boogeyman that they'll let anyone take a crap on them as long as the abuser is a Democrat. Wow, talk about a bad case of Battered Wife Syndrome, geez!

    Nothing is more important than the absolute, unconditional civil rights of all Americans. To let another day pass which allows injustice to continue would be a crime in itself. This federal judge was right in striking down DADT.

    By the way, did Obama's interracial parents have to wait for Congress to act before their marriage was allowed to be legal in all fifty states? Obviously, some "activist court" had to intercede…the same with school desegregation.

    If the ruling is not appealed any further (as it should not be)no future Republican administration is going to put the toothpaste back into the tube after tens of thousands of Gay and Lesbian soldiers have already been serving openly for years — especially with over 70% of the public today who want it over and done with.

    Obama is a disgrace. Pure and simple. If he is not challenged and then ousted in the primaries before 2012, the Democratic Party is doomed. The vast majority of political pundits (on the Left as well) are saying that this is the worst two year showing of any president in recent history. Obama must go.

  • 32. Craig  |  October 20, 2010 at 1:18 am

    The fact that the Justice Department chose not to appeal the permit ruling completely belies the Obama administration claims that it MUST defend laws on the books as a matter of obligation.

    Now we have PROOF that Obama is choosing to lie to us and give us lame lip service when the Justice Dept. absolutely could choose not to appeal challenges to DOMA or Don't Ask — especially when they supposedly agree that the laws are unconstitutional.

    They are appealing DOMA and Don't Ask as a matter of chosen policy, not a matter of some pretend "obligation."

    THAT is the truth.

    I think he personally favors equal rights for gays; but he is a political wimp. Great pre-election speeches, terrible post-election follow-up. He has never been anything resembling the 'fierce advocate' since taking office that he was on the campaign trail, back before he actually had to DO anything about all his hollow words.


    However, I disagree that he is the worse two-year showing of any president in recent history. I have only this to say in response to that: George W. Bush.

  • 33. Don in Texas  |  October 20, 2010 at 1:51 am

    The government chose not to appeal the overturning of a Park Service REGULATION, not a federal law.

    There is a big difference.

  • 34. Alan E.  |  October 20, 2010 at 2:00 am

    NPS regulations are federal law.

  • 35. Rhie  |  October 20, 2010 at 4:36 pm

    Hey woah now. I get that you disagree with some people here. But, there is a way to do it civilly and without trivializing abuse victims.

  • 36. JonT  |  October 20, 2010 at 3:14 am

    'The vast majority of political pundits (on the Left as well) are saying that this is the worst two year showing of any president in recent history.'

    Hyperbole much?

    Did you forget the 8 years under Bush? I sure haven't.

    Not going to forget on election day either.

  • 37. Chris in Lathrop  |  October 19, 2010 at 10:08 pm

    Finally a court going all the way for equality! Woohoo! 🙂

  • 38. MichGuy  |  October 19, 2010 at 11:44 pm

    QUESTION for the readers;

    If DADT is repealed via Congress before the case is heard by the Appeals Court, WOuldn't that mean that the District Court's ruling will still be stand and be valid. I would assume that at that point the Appeals COurt will have to dismiss the request for appeal due to "MOOTNESS"

    If DADT is repealed I would think that the appeals court would no longer have jurrisdiction due to no actual controversy and they would have to dismiss the case as "MOOT"

  • 39. MichGuy  |  October 19, 2010 at 11:52 pm

    QUESTION for the readers;

    If DADT is repealed via Congress before the case is heard by the Appeals Court, WOuldn’t that mean that the District Court’s ruling will still be stand and be valid. I would assume that at that point the Appeals COurt will have to dismiss the request for appeal due to “MOOTNESS”

    If DADT is repealed I would think that the appeals court would no longer have jurrisdiction due to no actual controversy and they would have to dismiss the case as “MOOT”

    I mean its not like you can issue a ruling on a lw that no longer exist. Lower Federal Courts are no allowed to give advisory opinions. Thy can only rule on actual controversies.

  • 40. Leo  |  October 20, 2010 at 12:24 am

    As I understand it, yes, the appeal will be dismissed as moot if Congress repeals DADT. The district court's ruling will be effectively moot since it applies to nonexistent law. District court rulings aren't binding precedents, unlike circuit/supreme court rulings, so I don't think its precise legal status would matter.

    I'm curious, though, about the status of an appeals court ruling if the case becomes moot while on appeal to SCOTUS. This could conceivably happen with Prop 8: Suppose Ninth Circuit affirms; Proponents appeal to SCOTUS; and before SCOTUS rules, Prop 8 is repealed in the 2012 elections. Would the appeals court ruling be a binding precedent in the Ninth Circuit (because it hasn't been overturned and can't be appealed further) or not (because it has been appealed and the appeal hasn't been decided on merits)?

  • 41. Carol  |  October 20, 2010 at 2:31 am

    The mootness rule is an example of the requirement of an actual case or controversy: courts can't rule where there is no actual dispute to resolve. An exception to the mootness rule is where the issue is likely to come up again even though the existing dispute between specific parties has for some reason gone away.

    If Congress repeals DADT (which I don't think will happen on Obama's watch), then the issue of gays in the military will have been resolved politically and is unlikely to arise again.

    I see same sex marriage as different, though. Even if California repeals Prop 8 in 2012, it remains a live issue in most other states, and SCOTUS could decide to resolve whether a constitutional right is at stake, using Perry as a vehicle. SCOTUS controls its own docket and can retain or reject cases it has already accepted. If SCOTUS accepts and then dismisses an appeal without deciding it, the 9th Circuit decision remains binding in the 9th Circuit and as persuasive precedent elsewhere.

  • 42. Richard A. Walter (s  |  October 20, 2010 at 12:57 am

    How did I miss this one?

  • 43. Alan E.  |  October 20, 2010 at 2:12 am

    via Towleroad (who got it from Politico) The Department of Justice has filed an emergency request with the Ninth Circuit Court of Appeals requesting a stay on the injunction barring enforcement of DADT. The DOJ requests the Ninth Circuit to enter the stay today.

    Document is here.

  • 44. Alan E.  |  October 20, 2010 at 2:15 am

    This footnote will "explain" why the feds will try to defend this law but not the others recently left to stand as unconstitutional at lower courts:

    The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

  • 45. Alan E.  |  October 20, 2010 at 2:17 am

    Wow. page 2:

    The worldwide injunction also threatens to disrupt the ongoing efforts to
    fashion and implement policies to effect any repeal of § 654 in an orderly fashion.

    I guess it's OK to continue discriminating against gays for just a little longer, at least until it is possibly removed (but no guarantee).

  • 46. Alan E.  |  October 20, 2010 at 2:19 am

    Page 2 again (these are documented pages, not PDF pages):

    Although the Administration has called for a repeal of the
    statute, it has made clear that repeal should not occur without needed deliberation,
    advance planning, and training.

    The military has already shown that they can stop enforcing the policy quite effectively without much notice.

  • 47. Alan E.  |  October 20, 2010 at 2:24 am

    Page 2-3:

    To that end, the Secretary of Defense established the
    Comprehensive Review Working Group, which is currently nearing completion of a
    comprehensive review of how best to implement a repeal of § 654. The Working
    Group has visited numerous military installations across the country and overseas,
    where it has interacted with tens of thousands of servicemembers on this issue. The
    Working Group has also conducted an extensive, professionally developed survey
    that was distributed to a representative sample of approximately 400,000 servicemembers. An abrupt, court-ordered end to the statute would pretermit the
    Working Group’s efforts to ensure that the military completes development of the
    necessary policies and regulations for a successful and orderly implementation of any
    repeal of § 654. The significant impairment of the Department’s efforts to devise an
    orderly end to the statute would cause irreparable harm.

    There is no proof of irreparable harm for the government that outweighs the irreparable harm that is and has been going on under DADT.

  • 48. Alan E.  |  October 20, 2010 at 2:28 am

    Page 4:

    the district court ruled
    that Log Cabin Republicans had demonstrated representational standing to challenge
    the statute on the basis of injuries the statute allegedly caused to two individuals that
    Log Cabin Republicans claimed as members.

    Note the "allegedly caused." There is nothing alleged about being fired from the military.

  • 49. Alan E.  |  October 20, 2010 at 2:34 am

    Page 8:

    The other person Log Cabin Republicans offered to establish standing was
    an anonymous individual currently serving in the military, “John Doe.” Doe
    submitted a two-page declaration averring that he was gay and feared that he would
    be discharged under the statute.S e e Trial Ex. 38, at 2. Doe’s declaration states that
    he “fear[s] that challenging the constitutionality of the” statute “will subject [him] to
    investigation and discharge pursuant to the” statute, Trial Ex. 38, at 2, but the
    declaration states no plan to violate the statute and does not suggest that Doe has
    been threatened with discharge.

    Umm, the army would have standing to fire "Doe" because not being anonymous in this case would be openly admitting that he is gay. The fact that he said he was gay shows that he has already violated the statute and suggests that Doe could be threatened with discharge.

  • 50. Alan E.  |  October 20, 2010 at 2:39 am

    *sigh* They are again trying to claim that the decision should only apply to the plaintiffs in the case, not a facial challenge that would apply to the entire "world."

  • 51. Alan E.  |  October 20, 2010 at 2:44 am

    Page 11:

    The district court’s conclusion that the statute violates the First Amendment
    likewise should be reversed. This Court has held that § 654 does not violate the First
    Amendment because it provides for “discharge for . . . conduct and not for speech.”
    Holmesv. Cal. Army Nat’l Guard, 124 F.3d 1126, 1136 (9th Cir. 1997)

    Actually, a person can be discharged for merely stating that he or she is gay. There is no proof needed that any actions were taken based on that statement. In fact, the DOJ even quoted the text of DADT earlier that said (page 3):

    Title 10 U.S.C. § 654 provides for separation from the military if a member
    of the armed forces has…(2) “stated that he or she is a homosexual or bisexual,
    or words to that effect, unless there is a further finding . . . that the member has
    demonstrated that he or she is not a person who engages in, attempts to engage in,
    has a propensity to engage in, or intends to engage in homosexual acts”

    The DoJ must demonstrate that additional measures were taken to prove whether the second part of that clause is true. There was evidence presented in this case that shows that it was not the case in almost all dismissals citing this clause.

  • 52. Alan E.  |  October 20, 2010 at 2:51 am

    Also see Christian Legal Society v. Martinez where it was decided by the Supreme Court "declined to distinguish between status and conduct." Conduct is distinctly related to status, the declaration of which will get you fired. Also see Lawrence v. Texas that makes in unconstitutional to discriminate based on sexual conduct related to orientation.

  • 53. Alan E.  |  October 20, 2010 at 2:52 am

    The conclusion of which can only lead to violating Due Process, as well.

  • 54. Alan E.  |  October 20, 2010 at 2:55 am

    ok I'm done for now. Back to work.

  • 55. JonT  |  October 20, 2010 at 3:29 am

    Wow, what a whiny document.

    They slice the first amendment up pretty thinly too.

  • 56. Kathleen  |  October 20, 2010 at 2:25 am

    Just woke. Server was hanging up on me, so here's another source for the motion:
    LCR v USA – Emergency Motion for Stay – 9th Circuit

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