Metropolitan News-Enterprise


Friday, September 30, 2011


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Ninth Circuit Deems Challenge to ‘Don’t Ask, Don’t Tell’ Moot


By SHERRI M. OKAMOTO, Staff Writer


A facial constitutional challenge to the military’s now-repealed policy banning openly gay troops yesterday was dismissed by the Ninth U.S. Circuit Court of Appeals as moot.

In a per curiam opinion, the three judge panel said the issue has been resolved since Americans can enlist and serve in the armed forces without regard to sexual orientation.

Log Cabin Republicans, a gay rights nonprofit, filed suit in 2004, challenging the policy widely known as “don’t ask, don’t tell” —codified in 1993 at 10 U.S.C. § 654(b)— and its implementing regulations, as facially unconstitutional under the due process clause of the Fifth Amendment, the right to equal protection guaranteed by that Amendment, and the First Amendment right to freedom of speech.

The group sought a declaration that the policy is facially unconstitutional and an injunction barring its enforcement.

U.S. District Court Judge Virginia A. Phillips of the Central District of California dismissed the equal protection claim, but allowed the due process and First Amendment challenges to proceed to trial.

Last October, Phillips found Sec. 654 was unconstitutional and issued a permanent injunction from applying the statute and its implementing regulations.

While the government’s appeal was pending, Congress enacted the Don’t Ask, Don’t Tell Repeal Act of 2010, which went into effect last Tuesday.

Judges Arthur L. Alarcón, Diarmuid F. O’Scannlain, and Barry G. Silverman said yesterday that this congressional action had deprived the Ninth Circuit of jurisdiction to review the government’s appeal as there is no longer a live case of controversy.

Standard of Review

In determining whether a case has become moot on appeal, the judges explained, an appellate court “ ‘review[s] the judgment below in light of the…statute as it now stands, not as it…did” before the district court.’ ”

This case, the panel reasoned, “became moot when the repeal of section 654 took effect” last week as the repeal “provides Log Cabin with all it sought.”

“If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654,” they said.

The panel rejected Log Cabin’s argument that the underlying constitutional issues to prevent future limitations or outright bans on military service by gay and lesbian Americans since “[w]e cannot say with ‘virtual[ ] certain[ty],’… that the Congress that passed the Repeal Act—or a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell.”

As to this possibility, “[w]e can only speculate, and our speculation cannot breathe life into this case,” the judges said.

Vacatur Issued

They noted that the government “did not forfeit the appellate review to which it was entitled” after the district court’s adverse ruling, and reasoned that since “[m]ootness has thus deprived the United States of the review to which it is entitled” as to the underlying question of the constitutionality of Sec. 654, that vacatur was appropriate.

“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,” the judges said.

They also warned Log Cabin, as well as “its members or anyone else,” that the district court’s judgment cannot be used collaterally in the future.

These “now-void legal rulings and factual findings have no precedential, preclusive, or binding effect,” the judges said, concluding that “[b]ecause the case is moot and the United States may not challenge further the district court’s rulings and findings, giving those rulings and findings any effect would wrongly harm the United States.”

Judge Diarmuid O’Scannlain also wrote separately, opining that Don’t Ask, Don’t Tell would have to withstand heightened scrutiny in order to pass constitutional muster as the policy implicates the same fundamental right at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which held that the liberty interest protected by the due process clause prohibits states from criminalizing private homosexual conduct by consenting adults.

“If we had been able to reach the merits in this case, I would have been obliged to vote to reverse,” he said.

Log Cabin Executive Director R. Clarke Cooper yesterday told the Associated Press that he was disappointed with the Ninth Circuit panel’s decision since he felt  “Log Cabin Republicans v. United States said more than ‘don’t ask, don’t tell’ should be repealed—it stood for the fundamental constitutional rights of service members not to be discriminated against by the nation they serve.”

Cooper suggested that yesterday’s decision effectively “denies more than 14,000 discharged gay and lesbian service members an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of service members’ rights.”

Dan Woods of White & Case LLP argued the cause for the Log Cabin Republicans against Henry C. Whitaker of the United States Department of Justice.

Woods told the Associated Press that he is going to request en banc review of yesterday’s decision.

The case is Log Cabin Republicans v. United States, 10-56634.


Copyright 2011, Metropolitan News Company