October 25, 2010
The U.S. 9th Circuit Court of Appeals is being barraged with briefs today — and not just in the Prop 8 case. Check out the documents Scribd below and the analysis from Karen, cross-posted from LGBTPOV.
By Karen Ocamb
Many of us got intellectual whiplash trying to keep up with the rapid developments in Log Cabin Republicans v. the United States – the six-year federal Don’t Ask, Don’t Tell trial in which District Court Judge Virginia Phillips ruled on Sept. 9 that DADT violated the First and Fifth Amendments to the U.S. Constitution.
The 9th Circuit granted the Justice Department an emergency stay of Phillips’ permanent global injunction against enforcement of DADT – an injunction with which the Pentagon complied for a full week with no complications, repercussions or mass exodus of heterosexual soldiers. Monday afternoon, Dan Woods, a partner in White & Case, the law firm representing Log Cabin Republicans pro bono, filed a 46-page response asking the 9th Circuit to grant the injunction while the two sides appeal Phillips’ ruling.
Frankly, I think the brief alone is evidence that the DOJ attorneys should be fired for incompetence. Point by point, Woods not only devastates the DOJ’s arguments – but also underscores the infuriating arrogance DOJ lead attorney Paul Freeborne and his assistants displayed at trial. Once again, the DOJ seems to be saying – Hey, We’re the federal government, representing the US Military and that should be enough for due judicial deference. Woods notes that Phillips didn’t buy that argument and the 9th Circuit shouldn’t either.
And sometimes Woods made his point with a sweet touch of elegance that hopefully reminds the judges that DADT is not just a law in dispute – but one that has real consequences on GAY human beings and their families:
Read the rest, including Scribd docs, in the extended entry….
“Appellants’ [the DOJ] motion does not discuss the public interest at all, beyond reciting that an Act of Congress is “deemed” to be a declaration of public interest (Motion at 16). But the public interest is not so limited: it lies equally if not more so in safeguarding the Constitutional rights that define us as a nation. The public interest is not served by blind deference to military judgment or even to legislative findings. Rather, the clear public interest is in ensuring that the military, like every other institution of our society, conforms to Constitutional requirements.
Finally, it must not be overlooked that it is not only servicemembers who are affected by DADT. Servicemembers’ family and friends – third party members of the public – are affected also, as their own First Amendment rights are impaired.”
Wood writes that:
“The district court’s injunction requires only one thing: that the government discontinue all investigations and discharge proceedings that have been commenced under the “Don’t Ask, Don’t Tell” statute, 10 U.S.C. § 654, and its implementing regulations (“DADT”).
The government made no showing to the district court, and makes no showing here, either that it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district court’s judgment remains in place pending determination of this appeal. By contrast, the district court conducted a careful, extensive analysis of the law, at every stage of the proceedings below. It concluded, after a full trial at which it heard testimony from over 20 witnesses and received over 100 exhibits in evidence, that DADT causes irreparable harm to servicemembers by its very existence and implementation, subjecting them to investigation and discharge, and chilling their First Amendment rights of free speech and petition, while actually impairing unit cohesion, morale, and discipline – the very factors that supposedly justify DADT. The district court’s decision was not a political one, nor an instance of “judicial activism”: it was compelled by the evidence before it, presented at a full trial conducted under our adversarial litigation system.
Every day that the government remains free to implement the Don’t Ask, Don’t Tell policy, American citizens’ Constitutional rights are violated. The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail. The motion does not meet any of the factors for a stay pending appeal, and it should be denied.”
Woods is particularly pointed when it comes to the DOJ’s argument that the court should just wait for the law to be repealed by Congress. Woods essentially says, ‘Yeah, Right!’
“The government supported its repeated requests to stay the trial below on the political branches’ inevitable repeal of DADT. Its current emergency stay motion retains that premise, referring to the statute’s eventual “repeal” over twenty times. After all, appellants’ claimed need for an “orderly” transition requires that there be a transition in the first place; and that requires repeal.
But repeal remains uncertain, and any momentum toward repeal is now stalled.
[T]he motion does not provide any information as to when the Senate may vote on the bill again. No date is scheduled for a vote, there is no assurance that there will not be another filibuster, and there is no assurance that the Senate will pass the legislation. The motion does not provide any evidence on this at all, or even attempt to explain why a lame-duck Senate would vote differently than it did in September, and ignores how next week’s midterm elections could impact repeal efforts.
Even if the legislation passes the Senate, repeal is uncertain and subject to multiple cascading contingencies. Because the Senate version of the bill differs from the House version, the bills require reconciliation….. Thus, the “orderly transition” which the government seeks to achieve via a stay remains speculative at best.”
Woods circles the DOJ’s arrogance with a Big Red Pencil noting their “new grounds” for demanding the stay, including the issue of LCR’s “standing,” failure to even mention Lawrence v Texas, and what Woods says is a misreading and misuse of the Witt case.
“It challenges the district court’s finding that Log Cabin has standing to bring this action (Motion at 6-9). It challenges the district court’s finding that DADT violates the First Amendment rights of current and prospective servicemembers (Motion at 11-12). And it challenges the district court’s injunction, which applies to the military as a whole, as being “in essence classwide relief” (Motion at 12-15).
None of these grounds was submitted to the district court as a basis for the request to that court for a stay pending appeal.”
He again underscores DOJ arrogance here:
“The motion attempts to transform the “presumptive constitutional validity of an Act of Congress” into an ipso facto conclusive declaration of irreparable injury; the application goes so far as to claim (at pages 1-2) that the invalidation of a statute by itself “is routinely the basis for stays pending appeal.” But it is simply not the case that a stay is required whenever a statute is held unconstitutional. In appropriate circumstances, as where the balance of equities weighs in favor of those who successfully challenge the constitutionality of a statute, a stay of an injunction against enforcement of that statute will be denied.
Finally, appellants cite Bowen v. Kendrick, 483 U.S. 1304 (1987) (Rehnquist, C.J., in chambers) for the proposition that the Supreme Court often grants a stay upon the government’s request where a district judge declares an Act of Congress unconstitutional. But that is far from a categorical rule, as shown above. As Chief Justice Rehnquist explained in Bowen, the presumption of constitutionality is an equity to be considered in balancing the hardships. Irreparable injury to the non-moving party is a heavy weight on the other side of the balance. And in none of the cases cited by appellants did that balancing analysis require consideration of a statute that the executive branch admits does not further its stated goals, as here.”
On military deference, Woods wrote:
“Appellants’ motion also heavily invokes the notion of judicial deference to Congress and the military when it comes to regulating military affairs. But as the district court recognized throughout the proceedings below, the military is not immune to the demands of the Constitution. “Deference does not mean abdication” and Congress cannot subvert the guarantees of the Due Process Clause merely because it is legislating in the area of military affairs. Witt, 527 F.3d at 821. “Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs….” Weiss v. United States, 510 U.S. 163, 176 (1994).”
Woods also takes note that there was no “irreparable injury” during the week when DADT was dead.
“The supposed “injury” to the military that the government claims would result from the district court’s injunction is, by the government’s own account, entirely a matter of rewriting handbooks and personnel manuals, developing training and “education” materials, reassuring serving personnel that their “views, concerns, and perspectives” are valued, and the like. These activities are not “irreparable injury” of the type that the test for a stay contemplates.
If this Court grants the government’s application for a stay, homosexual servicemembers will continue to be investigated and discharged under DADT.44 Those investigations and discharges violate the due process and First Amendment rights of the servicemembers, and it is firmly established that deprivation of Constitutional rights is ipso facto irreparable injury. “[C]onstitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.” Nelson II, 530 F.3d at 882; Elrod v. Burns, 427 U.S. 347, 373 (1976)
The government has already acted nimbly in response to the district court’s injunction. Two days after it was issued, on October 14, the Defense Department announced that it was halting all discharges under DADT. Press Release (Ex. 21). The next day, October 15, the military instructed its field recruiting offices to process applications for enlistment from openly gay and lesbian applicants. Press Release (Ex. 23). News reports indicated that applications from such individuals were received (and presumably processed) without incident. On that same day, Undersecretary of Defense Stanley issued a memorandum to the secretaries of the military departments (Ex. 22) directing that “the Department of Defense will abide by the terms of the injunction.” Then, last Thursday, October 21, following this Court’s issuance of a temporary stay, the Secretary of Defense issued a memorandum (Ex. 24) directing that “until further notice, no military member shall be separated pursuant to 10 U.S.C. § 654 without the personal approval of the Secretary of the Military Department concerned, in coordination with the Under Secretary of Defense for Personnel and Readiness and the General Counsel of the Department of Defense. These functions may not be delegated.”
That the government could and did issue the October 15 instructions and comply with the injunction immediately shows that the military will not sustain irreparable harm from compliance and belies the need for a stay pending appeal. And while the October 21 directive has no effect on the initiation and progress of investigation or discharge proceedings – and thus does not cure the constitutional harm that the district court found – it will necessarily slow the rate of actual discharges, given that all DADT discharges must be personally approved by three high-ranking civilian officials. That strikingly undermines the government’s claim that it must keep its current policies and regulations in place, and will sustain irreparable harm if it is not free to fully enforce DADT pending appeal.”
“For all the reasons set forth above, appellants’ emergency motion for stay should be denied. If a stay is granted, however, this appeal should be expedited.”
Additionally, Woods has asked for oral arguments on the issue. Luis Mocete from White & Case told me:
“Any oral argument on the motion would be done telephonically and this week. The 9th Circuit usually doesn’t hear oral arguments on motions but said that they might on this one since it is so high profile. We welcome the opportunity to present our case to the court and to respond to any questions that they might have about the case or the trial proceedings, since the government barely touched on any of that in their brief. If oral argument is scheduled it will likely be this week and won’t cause delay.”
In a press release Woods said:
“We weren’t surprised by the Ninth Circuit ruling granting the government a temporary stay, given the short amount of time the judges had to consider the case. Now that the Court has had additional time to study the case and when it has the opportunity to consider the opposition brief we have filed today, we are cautiously optimistic that the Ninth Circuit Court of Appeals will deny the government’s motion for a stay of the injunction because the government has not met the factors required for a stay pending appeal. The government’s motion does not show that the government is likely to prevail on the merits of the appeal and does not even attempt to refute the fact that the constitutional rights of current and prospective gay and lesbian servicemembers will continue to be violated during any stay. It remains sad and disappointing that the government seeks to continue to enforce ‘Don’t Ask, Don’t Tell’ by its motion for a stay pending appeal, even as the President has repeatedly said that the policy ‘weakens’ our national security and recently said in a ‘tweet’ that he basically agrees with Judge Phillips’s decision.”
R. Clarke Cooper, Executive Director of Log Cabin Republicans and an openly gay Captain in the Army Reserves who is subject to discharge, said:
“In its latest appeal, the Obama Administration is putting paperwork ahead of the fundamental constitutional rights of servicemembers,” said “This is just another in a long line of delay tactics from a President who has not missed an opportunity to defend this policy in court. As was articulated last week by former United States Solicitor General Ted Olson, the Department of Justice is not obligated to appeal this ruling. Thanks to this injunction, the Pentagon successfully suspended discharges and ended discrimination in recruitment without incident, proving that the United States military is ready and able to implement open service. There is no reason to make our armed forces spend another day enforcing an arbitrary, irrational policy that only undercuts unit cohesion and military readiness. We have faith that the Ninth Circuit, having had the chance to examine the trial record, will agree.”
Lambda Legal was among those who filed a friend-of-the-court brief urging the U.S. Ninth Circuit Court of Appeals to leave the injunction in place. The gist of their brief argued:
“that DADT takes a heavy toll on lesbian, gay and bisexual (LGB) service members, forcing them to live in constant fear of being discovered. But its influence extends far off American military bases: ”DADT is nothing short of a public pronouncement by the federal government that discrimination against LGB people is acceptable, that LGB people are inferior to heterosexual people, and that being lesbian, gay or bisexual is a shameful trait that ought to be concealed.”
The brief also argues that DADT’s discriminatory message is particularly damaging to lesbian, gay and bisexual youth, as exemplified by the surge of recently-reported teen suicides caused by antigay bullying. ”The government cannot plausibly claim that its actions are unrelated to such tragedies and abuses, so long as it remains the nation’s leading model for open discrimination against LGB people.”
“‘Don’t Ask Don’t Tell’ dishonors the memory of lesbian, gay and bisexual service members who have given their lives for this country,” said Peter Renn, Lambda Legal Staff Attorney. ”It also terrorizes the living, forcing them to be constantly on guard, even in private conversations on the phone or through email. The U.S. Supreme Court ruled in 2003 that we all have a constitutionally protected right to intimacy, and you don’t lose that right when you enlist in the military.”
Thanks to Kathleen Perrin for posting the motions to Scribd.
Log Cabin Republicans answering brief:
Log Cabin Republicans attachments:
Servicemembers United Amicus Brief in Log Cabin Republicans v. USA:
Servicemembers Legal Defense Network (SLDN) Amicus in Log Cabin Republicans v. USA:
Lambda Legal Amicus Brief in Log Cabin Republicans v. USA:
Palm Center Amicus Brief in Log Cabin Republicans v. USA: