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Tom Carpenter: 9th Circuit DADT Decision ‘As Bad As It Could Have Been’

Tom Carpenter: 9th Circuit DADT Decision ‘As Bad As It Could Have Been’

by Karen Ocamb on September 30, 2011

Marines waiting for the dust to settle in Afghanistan (DoD photo by Cpl. Nathan McCord, U.S. Marine Corps.

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.







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{ 6 comments… read them below or add one }

Anonymous October 1, 2011 at 2:55 AM

Thanks so much for this essential context, Tom (& Karen)…

The possibility of the ruling serving as a signal to a future Republican president is unsettling, but worth understanding.

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.

The arguments mounted by opponents of repeal seldom attacked the substance of DADT, they supported reinstatement of an outright ban on LGBT service.  I have long been frustrated that the anti-gay folks have been described as supporting the DADT status quo, when that simply wasn’t the case.

Clearly, much work remains.


lambda98 October 1, 2011 at 1:41 PM

I suspect that the decision dismissing the case was the best we could have hoped for from this panel. It looks like it was a compromise to avoid going to the merits, which may have resulted in a 2-1 vote to uphold DADT.

O’Scannlain’s concurrence is a nasty piece of work, and probably was designed to position himself as a possible Supreme Court nominee. However, it runs counter to other decisions made in the Ninth Circuit, especially in the Witt cases.

If Log Cabin Republicans request an en banc hearing, the results may be different. If an appeal to the SCOTUS is accepted, it will be interesting to see how Justice Kennedy reacts to this drastic narrowing of the implications of Lawrence v. Texas.


Steve October 2, 2011 at 10:03 PM

I agree with Carpenter that the ruling was terrible, but there are a number of errors and omissions in this post.

First, an executive order would not remove the vulnerability created by the elimination of the anti-discrimination protection in the repeal law.  An executive order can be withdrawn by a subsequent President, with no input from Congress or, for that matter, the Pentagon.  Had there been an anti-discrimination provision in the repeal legislation, DADT could not be restored absent further Congressional action.

Second, Judge O’Scannlain (not “O’Scannlian” as Carpenter writes) is a notorious conservative, well to the right of most circuit judges.  Anything he wrote would not be taken as a message on behalf of the entire judiciary that there would be no resistance to a re-institution of DADT.  Moreover, Judge O’Scannlain is 74 years old and would be almost 76 when the next President takes office.  He is not angling for a Supreme Court seat b/c he knows that he is too old to be nominated.

The real puzzle, which is not addressed at all by Carpenter, is why the 2 other judges, Silverman is a Clinton appointee and is a moderate liberal.  Alarcon was a Carter appointee.  Alarcon is very old and served in the Army during WWII, so it is possible that he is offended at the notion of federal judges overriding the military on issues involving readiness and cohesion.  Of course that is just speculation, and I have no theory as to Silverman.

Hopefully, LCR will seek en banc review.  I think the outcome will be different if they can get the full court to hear the appeal.


Tom Carpenter October 3, 2011 at 3:15 PM

Steve: I agree with you that an EO could be withdrawn by a new President but it is a step in the right direction. It would be very difficult to  un-ring that  bell  with the military  fully on board.
Thank you for pointing out the typo. You may be correct about the age issue. The oldest Justice ever appointed was Horace Lutton who was 65 when he was appointed in 1909. The recent trend seems to be to appoint Justices in their 50′s so that the country will have their “service” for many years. Or could it be that Presidents want their legacies to live on through these appointments?I also agree with you about the other two judges. A mystery to me and I didn’t want to speculate about them. LCR is seeking an en banc review. 


Marc Leger November 9, 2012 at 8:15 PM

hi Tom

I have been trying to find your email but Skip did not have it. I would like to speak to you when you get a moment in regards to an issue with SLDN.

Please contact me at 323-650-0964 or via email at luluglen@dslextreme.com

Marc Leger



iewiwo October 5, 2011 at 4:13 AM

Judge O’Scannlain is not going to get on the supreme court…he’s 74 years old.  The age lawyers stop looking attractive for a supreme court nomination is 60.


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