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

DADT trial

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 LGBTPOV.com, 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 Leave a Comment

  • 1. Alan_Eckert  |  September 1, 2011 at 8:45 am

    Even though DADT was repealed, that doesn't mean that there weren't any damages when it was/is law. The repeal of DADT doesn't give back jobs or even an honorable discharge to the people in this case and the thousands of others over the last 15 years.

  • 2. jpmassar  |  September 1, 2011 at 8:57 am

    Is the hearing being broadcast? Is anyone going to be there to listen? How soon will a transcript be available?

  • 3. Ann S.  |  September 1, 2011 at 9:05 am

    I know Kathleen is planning to attend. Hopefully she will be able to tell us more about what happened later.

  • 4. Sagesse  |  September 1, 2011 at 9:06 am

    LCR posts transcripts on their website as they become available, if I recall.

  • 5. Leo  |  September 1, 2011 at 9:58 am

    There is also a very real possibility there may be a new Republican Administration and Congress after the 2012 elections that could reinstate DADT.

    The main arguments against DADT repeal were FUD (it will hurt unit cohesion, it will be a distraction, the military has no time for this, etc.) Arguments like "homosexuality is immoral because the bible says so" no longer fly in a congressional debate, although they probably underlie some congressmen's views. What would be the arguments for reinstating DADT once open service is the status quo?

  • 6. jpmassar  |  September 1, 2011 at 10:05 am

    You're making the assumption that there would have to be a (logically consistent) argument.

  • 7. Leo  |  September 1, 2011 at 10:12 am

    I'm assuming there would have to be some argument since we're talking about a law being passed by Congress, not a popular referendum. I'm willing to settle for a logically inconsistent one for now :)

  • 8. jpmassar  |  September 1, 2011 at 10:15 am

    No, we're talking about an executive order. There is no need for Congress to pass a law re-instituting DADT; an executive order would be sufficient.

    (The repeal by Congress only repealed DADT; it did not do anything to prevent discrimination from being reinstituted)

  • 9. Dana_Jeanne  |  September 1, 2011 at 10:24 am

    And if that happens–which it WILL if we get any of the current GOP candidates as Pres–what will happen to all the people in the military who come out since it's been repealed? Do they all get kicked out?

    This is so STUPID, all this back and forth. We need an ammendment to the US constitution like the ones for Women's rights and African-Americans.

    Sorry– had a bad start to the day.

  • 10. Leo  |  September 1, 2011 at 10:34 am

    The quote I was commenting on said "Administration and Congress." I guess that's open to interpretation. But I also find it hard to believe that a president would sign an executive order and refuse to provide justification for it.

  • 11. jpmassar  |  September 1, 2011 at 10:35 am

    It would depend on what the new regulations that were put in place said. Unlikely that they would get kicked out; regulations probably wouldn't be retroactive. But not impossible to imagine, especially with President Bachmann.

  • 12. jpmassar  |  September 1, 2011 at 10:36 am

    Hard to believe there's absolutely no news about the hearing anywhere that I can find.

  • 13. DaveP  |  September 1, 2011 at 11:38 am

    If the republicans get into office, they just have to draft a bill that does the same thing as DADT, force it through and sign it. It could be done quietly or it could be done with lots of accompanying grandstanding filled with anti-gay rhetoric about how it's 'necessary for a strong America' blah blah blah.

    We NEED the courts to rule on the issue, making it clear that it is unconstitutional to discriminate against armed forces personnel simply because they are LGBT. No witch hunts, no dismissals, no unfair treatment, same benefits, the whole thing.

  • 14. Ronnie  |  September 1, 2011 at 12:02 pm

    Subscribing & sharing…… "Kyle's Story" (video)…… <3…Ronnie:
    [youtube 3xz8ta8CxSA http://www.youtube.com/watch?v=3xz8ta8CxSA youtube]

  • 15. Kathleen  |  September 2, 2011 at 10:25 am

    Audio of yesterday oral arguments in LCR v. USA now available:
    http://www.ca9.uscourts.gov/media/view_subpage.ph

  • 16. Eric  |  September 2, 2011 at 11:33 am

    More of what the Obama administration really thinks of the LGBT community.

    If the issue is moot in a few days and it supposedly doesn't matter, why doesn't the government drop its appeal? If what they argue is true, why do they want the district court decision overturned?

    Holder needs to go, we are not donating anything to the Obama campaign, until he resigns.

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