9th Circuit DADT Decision As Bad As It Could Be
By Tom Carpenter, attorney
(Corrected) Thursday’s decision by the 9th Circuit Court of Appeals was just as bad as it could have been. As I previously opined, the likely result, after repeal of DADT was effective, would be for the judges to find Log Cabin Republicans vs. the United States moot. This was the easy way out for the judges; don’t address the merits of the case, just punt. It is noteworthy that this decision is per curium, meaning we don’t know which judge wrote the decision. This is an unusual procedure.
Why did none of these judges have the courage to admit to authorship of this decision? What we do know is that Judge O’Scannlain, who wrote a concurring opinion, was not the author of the court’s decision.
One thing is certain; we are all indebted to the Log Cabin Republicans, who brought this lawsuit. Where were the Stonewall Democrats? (Full disclosure: I am a long time and ardent Democrat). These Republicans have fought this battle for 7 years and have beaten the Department of Justice lawyers at every stage. Their attorneys from
Case and White White & Case have worked all that time for no fees. There is no doubt that this case and the decision of Judge Virginia Phillips motivated the DoD to get with the program. How many times did Secretary Gates and Admiral Mullen talk about the need to keep the repeal process in the hands of the military for fear the Court would find DADT unconstitutional and force the government’s hand? Not to mention the 8-day period that Judge Phillips’ worldwide injunction stopping discharges under DADT was in place, and the military did not collapse. In the debate in the Senate and House leading to the passage of the DADT Repeal Act last year, this case was brought up over and over again. Judge Phillips decision was no doubt a motivating factor in getting the Congress, as well as the White House, to move repeal forward before the court’s decision became final.
The White House is really in a fix. While the Department of Justice, under instruction from the President and his Attorney General, Eric Holder, is no longer defending the Defense of Marriage Act, it has been consistent in maintaining that DADT is constitutional. At the same time, the President has called for the repeal of this law. How do they square these two inconsistent positions? They say they agreed to take out discrimination protection in the Repeal Act because the Pentagon wanted it removed, and they would not have had the votes to pass the act with this protection in place.
This case, if it had stood, would have provided that missing protection. This situation can be remedied by either an executive order from the President providing this protection or he can instruct his new Secretary of Defense, Leon Panetta, to include this protection in the Department of Defense Human Goals Charter. With a mere addition of four words this could be accomplished. Mr. President, now is the time to show you are a strong leader and truly the “fierce advocate” you claim to be for our community.
Finding the Log Cabin case moot did not go far enough for this panel. They wanted to make it clear that in any future litigation it would be as if this case never went to trial and really never existed. This is what they said:
“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.”
Judge O’Scannlain was not satisfied and took this even further. Unless it is absolutely necessary, traditionally jurists do not directly attack their brethren in the lower trial court. Not in this case. I was a witness to how the government lawyers treated Judge Phillips with borderline disrespect during the trial phase. It was unprofessional and uncalled for. Now Judge O’Scannlain has piled on.
In a 10-page opinion he gratuitously addressed the merits of the case. This was his opportunity to prove his credentials as a strict constructionist. Justices Scalia, Thomas, Roberts, or Alito could have written what followed.
In her decision, Judge Phillips relied on the seminal case of Lawrence vs. Texas finding that DADT was unconstitutional. She applied a heightened standard of review and concluded that the right to serve openly in the armed service was protected under the substantive due process clause of the constitution. In his decision, O’Scannlain read Lawrence very narrowly and concluded just the opposite saying:
“In the end, careful application of the Supreme Court’s “established method” in substantive due process cases shows that Lawrence did not establish any fundamental right—let alone any right relevant to the Don’t Ask, Don’t Tell policy in the military.”
I submit what O’Scannlain was really doing was talking to his fellow Republicans, particularly the Presidential candidates. He was cutting off the legs of Judge Phillip’s well-reasoned trial judgment that DADT was unconstitutional. He was giving these potential Presidents a road map on how to return to DADT or a ban – a green light saying, “don’t worry about what Judge Phillips has said, go ahead and don’t expect any resistance from the judiciary.” He may also be establishing himself as a potential Supreme Court nominee of a President Romney, Perry or Cain. A strict constructionist who will nearly always defer to the executive or the legislative branches, stuck in the past, trying to channel the founding fathers and finding the Constitution dead on arrival.
This decision now creates uncertainty for our “open but not equal” LGB service members. They finally can serve with integrity, consistent with the core values of the services.
What most people do not realize is that what happened with repeal of DADT was to return this personnel policy, from the Congress, to the DoD. This means that the DoD has full authority to change the regulations to return to an outright ban at worse, and DADT at best. They can do this without any Congressional action. We have all heard many of the Republican candidates say they were against repeal of DADT and would, if elected, return to that policy or the ban. This case, since it found DADT unconstitutional, would likely have prevented this from happening. Now these recently liberated troops face a real possibility that in 2013 a new president could turn the clock back. On behalf of those LGB troops protecting your liberties, thank you Judges Alarcon, Silverman and especially O’Scannlain.