Filed under: 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.
By Adam Bink
What a roller coaster last night. Karen:
Late Friday night, the three judge panel of the 9th Circuit Court of Appeals granted the government’s emergency motion to reinstate Don’t Ask, Don’t Tell, with the major caveat that the military can not investigate, penalize or discharge LGBT servicemembers while the case challenging the constitutionality of DADT is under appeal. Meanwhile, Earle Miller, an attorney at White & Case, the firm representing the Log Cabin Republicans against the US, advises gay servicemembers NOT to come out.
“The military is still enjoined from investigating and discharging servicemembers,” Miller said by phone late Friday night. “But it’s still not safe to come out. I think it’s risky.”
The news comes on the weekend when hundreds of active duty gay servicemembers had planned to come out during San Diego Gay Pride on Sunday, believing that DADT was finally and officially dead.
Chief Judge Kozinski and Justices Warlaw and Paez said in their order that the government “provide considerably more detailed information concerning the implementation of the Don’t Ask, Don’t Tell Repeal Act of 2010” than they did in their filing of May 20, 2011, in which they argued against lifting the stay. In particular, they seemed impressed by three new representations: a declaration from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness, that said that “only one servicemember has been discharged under 10 U.S.C. § 654 since the passage of the Repeal Act; the representation that the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands have recently submitted their written advice regarding the status of their preparation for repeal and ability to satisfy the certification standards set by Congress; and the representation that repeal certification will be presented to the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff in a matter of weeks, by the end of July or early in August.”
The Court took note that the government “acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act” and set July 18 for the DOJ to explain why.
However, the Court concluded:
“In order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts, the stay entered November 1, 2010, is reinstated temporarily in all respects except one. The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask,Don’t Tell policy.”
Subsequent motions must be filed by July 22.
“The Court is slapping the government around for not filing a full briefing,” Miller said. “But the government is still trying to have it both ways, telling the Court ‘Trust us and defer to the military.”
“Obviously, having a federal court order turning DADT back on is disappointing for all the servicemembers anticipating implementation of open service,” said C. Clarke Cooper, Executive Director of the Log Cabin Republicans.
Basically, can’t join, but can’t get kicked out, may be the read.
Oral arguments are set for Sept. 1 in Pasadena, CA.
By Adam Bink
Earlier today, the DOJ filed for an emergency stay from the 9th Circuit in the Log Cabin Republicans v. United States case. Last week, a panel from the 9th Circuit ruled that given the approaching full repeal of DADT, and the government’s recent filing in the DOMA case, there was no need for a stay. Today, the DOJ said there was.
The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for “emergency” reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the “Don’t Ask, Don’t Tell” law — a motion that asks for the stay to be put back in place by “close of business” on Friday, July 15.
Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit’s claim that “it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654″ — the DADT law. DOJ countered today that “it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010″ in a letter that argues that — after the Don’t Ask, Don’t Tell Repeal Act was signed into law — Section 654 became a “transitional provision.”
The government argues that “§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 ‘shall remain in effect until such time that all of the requirements and certifications required by’ the Repeal Act ‘are met.’” Because of this provision in the repeal act, the government argues, “§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process.”
The chief of staff of the Repeal Implementation Team at the Department of Defense — Marine Corps Major General Steven A. Hummer — detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.
Hummer states, “At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress.”
In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for “a temporary administrative stay of the injunction” while considering the emergency motion. DOJ is asking for quick action on that request. “We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011,” the lawyers wrote to the court.