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Filed under: DADT trial

Why today’s 9th Circuit hearing in the Log Cabin Republicans/DADT case may matter

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, 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.

16 Comments September 1, 2011

9th Circuit partially rejects government’s emergency stay request on DADT

By Adam Bink

What a roller coaster last night. Karen:

Late Friday night, the three judge panel of the 9th Circuit Court of Appeals granted the government’s emergency motion to reinstate Don’t Ask, Don’t Tell, with the major caveat that the military can not investigate, penalize or discharge LGBT servicemembers while the case challenging the constitutionality of DADT is under appeal. Meanwhile, Earle Miller, an attorney at White & Case, the firm representing the Log Cabin Republicans against the US, advises gay servicemembers NOT to come out.

“The military is still enjoined from investigating and discharging servicemembers,” Miller said by phone late Friday night. “But it’s still not safe to come out. I think it’s risky.”

The news comes on the weekend when hundreds of active duty gay servicemembers had planned to come out during San Diego Gay Pride on Sunday, believing that DADT was finally and officially dead.

Chief Judge Kozinski and Justices Warlaw and Paez said in their order that the government “provide considerably more detailed information concerning the implementation of the Don’t Ask, Don’t Tell Repeal Act of 2010” than they did in their filing of May 20, 2011, in which they argued against lifting the stay. In particular, they seemed impressed by three new representations: a declaration from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness, that said that “only one servicemember has been discharged under 10 U.S.C. § 654 since the passage of the Repeal Act; the representation that the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands have recently submitted their written advice regarding the status of their preparation for repeal and ability to satisfy the certification standards set by Congress; and the representation that repeal certification will be presented to the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff in a matter of weeks, by the end of July or early in August.”

The Court took note that the government “acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act” and set July 18 for the DOJ to explain why.

However, the Court concluded:

“In order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts, the stay entered November 1, 2010, is reinstated temporarily in all respects except one. The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask,Don’t Tell policy.”

Subsequent motions must be filed by July 22.

“The Court is slapping the government around for not filing a full briefing,” Miller said. “But the government is still trying to have it both ways, telling the Court ‘Trust us and defer to the military.”

“Obviously, having a federal court order turning DADT back on is disappointing for all the servicemembers anticipating implementation of open service,” said C. Clarke Cooper, Executive Director of the Log Cabin Republicans.

Basically, can’t join, but can’t get kicked out, may be the read.

Oral arguments are set for Sept. 1 in Pasadena, CA.

41 Comments July 16, 2011

Department of Justice requests emergency stay on DADT injunction

By Adam Bink

Earlier today, the DOJ filed for an emergency stay from the 9th Circuit in the Log Cabin Republicans v. United States case. Last week, a panel from the 9th Circuit ruled that given the approaching full repeal of DADT, and the government’s recent filing in the DOMA case, there was no need for a stay. Today, the DOJ said there was.

Metro Weekly:

The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for “emergency” reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the “Don’t Ask, Don’t Tell” law — a motion that asks for the stay to be put back in place by “close of business” on Friday, July 15.

Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit’s claim that “it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654” — the DADT law. DOJ countered today that “it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010” in a letter that argues that — after the Don’t Ask, Don’t Tell Repeal Act was signed into law — Section 654 became a “transitional provision.”

The government argues that “§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 ‘shall remain in effect until such time that all of the requirements and certifications required by’ the Repeal Act ‘are met.'” Because of this provision in the repeal act, the government argues, “§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process.”

The chief of staff of the Repeal Implementation Team at the Department of Defense — Marine Corps Major General Steven A. Hummer — detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.

Hummer states, “At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress.”


In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for “a temporary administrative stay of the injunction” while considering the emergency motion. DOJ is asking for quick action on that request. “We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011,” the lawyers wrote to the court.


32 Comments July 14, 2011

DADT enforcement and court update

By Adam Bink

Two developments: the first is today’s order from the 9th Circuit, essentially ordering the government to “fish or cut bait” on defending DADT. Essentially, the Government is ordered to submit a report indicating whether or not it intends to defend the law; and both parties are ordered to show cause for why this case is not moot given the repeal of DADT in motion. Thanks to Karen O for the heads-up and Kathleen for the link.

The second is that Tom Carpenter over at LGBTPOV catches hold of a memo from Undersecretary of Defense Clifford Stanley on how the military will react to injunction being in effect on DADT enforcement. The last sentence of the 2nd paragraph is notable.

49 Comments July 11, 2011

9th Circuit lifts stay in Log Cabin Republicans’ “Don’t Ask, Don’t Tell” case

By Adam Bink

In the Log Cabin Republicans v. United States case, a stay was granted by the 9th Circuit pending appeal. Well, that stay was just lifted by the 9th Circuit. The recent DOJ brief in the Golinski case was noted by the court, as well as the fact that DADT repeal is in progress and that “the preponderance of the armed forces are expected to have been trained by mid-summer.” As such, the court concludes:

The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.

Very, very big news.

Full order (h/t Kathleen):

[scribd id=59466413 key=key-1n5pb7o4r9m6z5ybvqhg mode=list]

Update: Statement from SLDN:

Today’s decision by the Ninth Circuit  Court of Appeals is most welcomed. It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department. In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy.

139 Comments July 6, 2011

LCR vs. United States of America, et al legal update

Thanks to Kathleen for an update -Adam

By Kathleen

Three amicus briefs were filed on Friday in support of the federal government in the case of Log Cabin Republicans v. United States of America, et. al. (LCR v. USA). Amicus briefs in support of Log Cabin Republicans will be due in early April.

You may recall that in September of last year district court Judge Virginia Phillips declared the U.S. military policy known as “Don’t Ask, Don’t Tell” (DADT) unconstitutional and on October 12, issued a world-wide injunction against its enforcement. The government is appealing that decision in the 9th Circuit Court of Appeals and in the meantime, the appeals court stayed Judge Phillips’s injunction, pending the outcome of the appeal.

The government’s opening brief in the 9th Circuit was originally due in January. However, proceedings were delayed by the Congressional repeal of DADT at the end of last year and the government’s subsequent claim that repeal should put the court case on hold. Log Cabin Republicans disagreed, arguing that with DADT still in place, and with no time certain for final implementation of repeal, the court case must proceed. Initially the Court suspended briefing while considering the government’s request, but on January 28 the Court issued an order denying the government’s motion and setting a new briefing schedule.

The government filed its opening brief on February 24, and amicus briefs in support of the government were due last Friday. Log Cabin Republicans’ answering brief is due March 28, and amicus briefs in support of LCR will be due one week later.

Foundation for Moral Law brief can be found here. Church of God of Prophecy Chaplaincy Ministries, et al brief 
can be found here. The National Legal Foundation brief can be found here.

87 Comments March 7, 2011

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