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Don't Ask, Don't Tell Lawsuit Dismissed
Posted by: Claude J. Summers on 09/29/11
Last updated on: 09/30/11
 
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On September 29, 2011, a three-judge panel of the Ninth Circuit Court of Appeals dismissed Log Cabin Republicans v. U.S.A., the lawsuit that challenged the constitutionality of Don't Ask, Don't Tell.

The panel ruled that the repeal of DADT rendered the lawsuit moot. "This suit became moot when the repeal of section 654 took effect on September 20. 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. The repeal, in short, gave Log Cabin 'everything' its complaint 'hoped to achieve' . . . . There is no longer 'a present, live controversy of the kind that must exist' for us to reach the merits."

The Court in a strongly worded conclusion also deemed the October 2010 opinion by District Judge Virginia Phillips declaring DADT unconstitutional without precedential value: "Because Log Cabin has stated its intention to use the district court's judgment collaterally, we will be clear: It may not. Nor may its members or 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. The repeal of Don't Ask, Don't Tell provides Log Cabin with all it sought and may have had standing to obtain."

In a concurrence one member of the panel, Judge Diarmuid O'Scannlain, declared that he would have upheld Don't Ask, Don't Tell had the panel ruled on the merits of the case. He argues that the 2003 case Lawrence v. Texas should not have been read to require heightened scrutiny in considering Don't Ask, Don't Tell.

In response to the Court's decision, Dan Wood, lead attorney for Log Cabin Republicans in the case, issued the following statement: "We are, of course, disappointed by today's ruling but we will continue to fight on for the constitutional rights of all people impacted by Don't Ask, Don't Tell. This is an important issue for all Americans and we anticipate seeking re-hearing before the full Ninth Circuit."

R. Clarke Cooper, executive director of the Log Cabin Republicans, blamed the Obama administration for not letting the precedent set by Judge Phillips stand.

"The ruling in Log Cabin Republicans v. United States is the reason why Congress finally acted to end this failed and unconstitutional policy," Cooper said. "This decision by the Ninth Circuit denies more than 14,000 discharged gay and lesbian servicemembers an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of servicemembers' rights."

Jon Davidson, Legal Director at Lambda Legal, issued the following statement in reaction to the decision: "We are deeply disappointed that the Ninth Circuit chose to erase the factual findings and legal conclusions reached after years of litigation and a lengthy trial that thousands upon thousands of lesbian, gay, and bisexual service members' constitutional rights were violated for 18 years by Don't Ask, Don't Tell. The end of anti-gay discrimination by the military was required by the Constitution, not just by political considerations."

"It is wrong to require the more than 14,000 service members who were unconstitutionally discharged to start from square one in obtaining the military benefits they lost, getting their military records corrected, and fighting government efforts to collect educational loans they were prevented from working off, among other harms," he added. "The work to end the damage done by Don't Ask, Don't Tell is far from done and we call on the administration to provide justice to those our country has wronged."

 
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