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DADT: Analysis of today’s 9th Circuit decision in the LCR case

DADT trial

By Adam Bink

From the comments, MichGuy and chiefscribe note today’s decision from the 9th Circuit to dismiss the Log Cabin Republicans’ case against the government regarding “Don’t Ask, Don’t Tell.” What’s notable is not only did the court dismiss the case, but it legally erased the trial record and decision. SCOTUSBlog explains:

Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas.   Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly.  The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress.  (The decision is here; it includes Judge O’Scannlain’s separate added views.)

Apparfently not content to have the judge’s ruling simply off the books, Judge O’Scannlain wrote a 10-page concurring opinion in order to provide what he called a “guidepost for responsible decision-making” for courts dealing with claims to gay rights based upon Lawrence.    Judge Phillips, who sits in Riverside, Calif., had relied heavily upon that 2003 precedent in nullifying the military gay ban last September; in October, she barred the Pentagon from enforcing the ban anywhere in the world.  She did so in a case filed by a gay rights advocacy group. the Log Cabin Republicans.

After the “don’t ask/don’t tell” repeal law took effect nine days ago, ending a long-standing ban on homosexuals serving openly in uniform, the Obama Administration had asked the Ninth Circuit panel to declare the case to be moot, and to go further and vacate — that is, erase from the books, officially — Judge Phillips’ ruling and the worldwide injunction she had issued.   The Log Cabin Republicans had resisted those requests, arguing that the case was not dead because Congress might re-impose the ban and because those discharged from the service under the ban may suffer negative consequences from it.  That organization also had indicated that it wanted to use Judge Phillips’ precedent in other gay rights cases.  (A number of discharged gay individuals have cases pending in court, either seeking reinstatement or damages.  The Phillips precedent could have aidedd those claims.)

In Thursday’s unanimous ruling, the three-judge panel granted both of the Administration’s requests.  It declared the Phillips decision to be legally dead, and vacated it.  Noting that the Log Cabin Republicans had stated that they intended “to use the district court’s judgment” in other cases, the panel responded: “We will be clear: It may not.  Nor may its members nor 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.”  When Congress repealed the “don’t ask/don’t tell” policy, the panel said, the Log Cabin Republicans got all that they had sought by suing the Pentagon’s leaders.

Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books.  Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion.

As Karen notes over at, Dan Woods, the lead attorney for LCR, says this isn’t over yet.

Full text:

h/t MichGuy and chiefscribe for the links


  • 1. Ann S.  |  September 29, 2011 at 6:04 pm


  • 2. Kathleen  |  September 29, 2011 at 6:12 pm

    USC law professor David B. Cruz on today's decision and O'Scannlain's concurrence:

  • 3. Sheryl_Carver  |  September 30, 2011 at 9:29 am

    So there is still hope that the DADT case could continue, Kathleen? (I've been unable to keep up with P8TT as much as usual.) LCR will have to file an appeal for an en banc hearing, I assume? How long to they have to do that?

  • 4. jpmassar  |  September 29, 2011 at 6:19 pm

    How To Report the National Organization for Marriage As A Hate Group

    petition asking Mark Zuckerberg to ban NOM from Facebook

    via Pam's House Blend

  • 5. Rich  |  September 30, 2011 at 9:44 am

    I just reported NOM and it made my day.

  • 6. Ronnie  |  September 29, 2011 at 6:44 pm

    Subscribing & sharing…..

    Wal-Mart Adds Trans Protections To Non-Discrimination Policy

    Who Are the LGBT Characters on the New Fall Season?

    Dustin Lance Black Goes Back to School with the Homecoming Project: Interview

    & YouTube personality, Davey Wavey made this tribute for Jamey Rodemeyer & all of the other children lost to bullycide…. Video Description: "In memory of those who lost their lives, post this video on Facebook. Note: Balloons used were biodegradable. When it comes to the tragic suicides – like that of Jamey Rodemeyer – that our community continues to face, it's hard to find the words. So, I made this video."

    [youtube sVyugde89W0 youtube]

  • 7. Eric  |  September 29, 2011 at 6:55 pm

    Did we really expect anything different from the Obama administration? Holder needs to go.

  • 8. Steve  |  September 30, 2011 at 3:41 am

    This doesn't have anything to do with Obama

    If you read the decision, you'll realize that they really had no other choice than to dismiss the case. The precedence was pretty damning.

    What's annoying though is the one judge's own concurrence in which he slammed the broad application of Lawrence. That was just vindictive

  • 9. David Henderson  |  September 29, 2011 at 7:18 pm

    If the Obama administration has only asked for the case to be declared moot, but not asked for everything to be vacated, could the court have done so on its own? Or did they only have the ability to wipe the case from the face of the earth because of the administration's request that they do so?

  • 10. Kathleen  |  September 29, 2011 at 7:33 pm

    When a case is declared moot, it's fairly standard to dismiss the complaint and vacate any judgments associated with it. LCR argues it's not automatic. I don't have enough context to know how strong those arguments are. It didn't seem to me an unreasonable request to have an opportunity to develop a broader factual record on the questions of mootness and vacature, which would mean remanding it back to the district court to do that.

    Dan Woods has indicated he intends to ask for review en banc.

  • 11. Brain Death  |  October 1, 2011 at 10:12 am

    I doubt en banc review will be granted. The plaintiffs are now entitled, on other grounds, to the relief they sought.

    There were also an issue of whether plaintiffs had standing; the Court merely assumed they did when they judged the mootness of the case.

  • 12. Kathleen  |  September 29, 2011 at 7:36 pm

    Meant to also say – the concurrence by O’Scannlain seems completely uncalled for, imo. The panel decided the case is moot; there's no reason to opine on the merits. In fact, he seems pissed off that he didn't get to rule on the merits and wants everyone to know his opinions on the whole gay thang. I'm guessing he and Scalia are good buds, or wish they were.

  • 13. Phillip R  |  September 29, 2011 at 9:03 pm

    Exactly. I thought it was quite uncalled for.

    It's like it wasn't enough to rip the bandaid off without throwing some salt on it as well.

  • 14. FlexSF  |  September 29, 2011 at 9:21 pm

    Is there anyway to inflict retribution on this federal dictator for his unwarranted, cynical directive to impede the gays from legal equality and heightened scrutiny status in the legal system?

  • 15. shelostcontro1  |  September 30, 2011 at 10:41 pm

    No1curr about your opinion, O'Scannlain.

  • 16. Brain Death  |  October 1, 2011 at 10:08 am

    A concurrence of course, is not binding (except with respect to points of law where it agreed with a sufficient number of judges to constitute a majority). It can be used by judges to jutsify a holding (as long as it does not contradict binding precedent), but it is not binding.

  • 17. Bryce  |  September 29, 2011 at 9:42 pm

    Is there some recourse? I mean, can the LCR go to the bar, or the ninth circuit, or some other organization and say: "Hey, he wasn't supposed to reach the merits (per the Hall case), but he commented on them anyway, and it was inappropriate, and bad, and it makes future litigation harder to pursue"? Or can they appeal just to have something to to counter O'Scannlain's bizarre diatribe?

  • 18. Alan_Eckert  |  September 30, 2011 at 9:46 am

    They can request an en banc review with the 9th Circuit.

  • 19. Franck  |  September 29, 2011 at 11:34 pm

    OT, but I just read this:

    Well, bummer. You win this round, Mr. Boehner.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1561 days, as of today.

  • 20. Sagesse  |  September 30, 2011 at 6:35 am

    9th Circuit vacates ruling that found Don't Ask, Don't Tell unconstitutional

  • 21. rocketeer500  |  September 30, 2011 at 8:35 am

    The DOD has just confirmed that Chaplains are now allowed to perform SSM were they are legal. The DOD has announced that bases are "sexual orientation neutrual" and Chaplains are free to perform marriages either on base or off base.

  • 22. Ronnie  |  September 30, 2011 at 8:35 am

    Pentagon: Chaplains May Officiate Same-Sex Weddings
    "The Defense Department announced Friday that military chaplains can perform same-sex wedding ceremonies in their official capacities in states where gay marriage is legal. The ceremonies can be performed on military facilities."

    "A military chaplain may participate in or officiate any private ceremony, whether on or off a military installation, provided that the ceremony is not prohibited by applicable state and local law. Further, a chaplain is not required to participate in or officiate a private ceremony if doing so would be in variance with the tenets of his or her religion or personal beliefs. Finally, a military chaplain’s participation does not constitute an endorsement of the ceremony by DoD."

    (me) AWESOME!!!!…. The Military reaffirms & protects Religious Liberty for the Chaplains who support the freedom to marry…… Good news, I love it….. <3…Ronnie

  • 23. maggie4noh8  |  September 30, 2011 at 11:00 am

    Please check this out and consider following through:

  • 24. Prop 8 Trial Tracker &raq&hellip  |  February 9, 2012 at 11:32 am

    […] Circuit Judge Diarmuid O’Scannlain, a Reagan appointee, the same judge who not only voted to throw out Judge Phillips’ decision in the Log Cabin Republicans case against Don’t Ask, Don’t Tell, but took it upon himself to write a 10-page […]

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