Filed under: DADT trial
By Adam Bink
By Adam Bink
From the comments, MichGuy and chiefscribe note today’s decision from the 9th Circuit to dismiss the Log Cabin Republicans’ case against the government regarding “Don’t Ask, Don’t Tell.” What’s notable is not only did the court dismiss the case, but it legally erased the trial record and decision. SCOTUSBlog explains:
Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress. (The decision is here; it includes Judge O’Scannlain’s separate added views.)
Apparfently not content to have the judge’s ruling simply off the books, Judge O’Scannlain wrote a 10-page concurring opinion in order to provide what he called a “guidepost for responsible decision-making” for courts dealing with claims to gay rights based upon Lawrence. Judge Phillips, who sits in Riverside, Calif., had relied heavily upon that 2003 precedent in nullifying the military gay ban last September; in October, she barred the Pentagon from enforcing the ban anywhere in the world. She did so in a case filed by a gay rights advocacy group. the Log Cabin Republicans.
After the “don’t ask/don’t tell” repeal law took effect nine days ago, ending a long-standing ban on homosexuals serving openly in uniform, the Obama Administration had asked the Ninth Circuit panel to declare the case to be moot, and to go further and vacate — that is, erase from the books, officially — Judge Phillips’ ruling and the worldwide injunction she had issued. The Log Cabin Republicans had resisted those requests, arguing that the case was not dead because Congress might re-impose the ban and because those discharged from the service under the ban may suffer negative consequences from it. That organization also had indicated that it wanted to use Judge Phillips’ precedent in other gay rights cases. (A number of discharged gay individuals have cases pending in court, either seeking reinstatement or damages. The Phillips precedent could have aidedd those claims.)
In Thursday’s unanimous ruling, the three-judge panel granted both of the Administration’s requests. It declared the Phillips decision to be legally dead, and vacated it. Noting that the Log Cabin Republicans had stated that they intended “to use the district court’s judgment” in other cases, the panel responded: “We will be clear: It may not. Nor may its members nor 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.” When Congress repealed the “don’t ask/don’t tell” policy, the panel said, the Log Cabin Republicans got all that they had sought by suing the Pentagon’s leaders.
Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books. Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion.
As Karen notes over at LGBTPOV.com, Dan Woods, the lead attorney for LCR, says this isn’t over yet.
h/t MichGuy and chiefscribe for the links
By Adam Bink
Monday’s oral arguments regarding whether to release the tapes in the Perry case:
Yesterday’s arguments in LCR v. USA before the 9th Circuit can be found here.