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Is DOJ Still Upholding Don’t Ask, Don’t Tell? A Painful Reminder That Gays Are Still Second Class Citizens

Is DOJ Still Upholding Don’t Ask, Don’t Tell? A Painful Reminder That Gays Are Still Second Class Citizens

by Karen Ocamb on March 21, 2012

Cancer-stricken CW2 Charlie Morgan and her wife Karen Morgan at the OutServe conference(Photo by Karen Ocamb)

Tuesday, March 20 marked the 6th month anniversary of the repeal of Don’t Ask, Don’t Tell. To be sure, as former Marine Captain and longtime Servicemember Legal Defense Network board member Tom Carpenter noted,  repeal was a “nonevent.” Even Stars and Stripes reported that “DADT died quietly.”

But the celebrations must be tempered with some hard facts: 1) the Justice Department is still arguing against the Log Cabin Republican legal team that won the ruling that DADT was unconstitutional; and 2) while President Obama lauds the repeal of DADT in his re-election speeches, he has not yet signed an executive order banning discrimination based on sexual orientation or gender identity in the military; and 3) because of the Defense of Marriage Act, the federal government is failing to provide health care and surviving spouse benefits, among other benefits, to out servicemembers. That most directly and painfully impacts Chief Warrant Officer 2 Charlie Morgan of the New Hampshire National Guard right now. Morgan came out on Thomas Roberts’ MSNBC show – but was apparently too ill with cancer to appear with him again on Tuesday to celebrate the repeal. Morgan is part of an SLDN lawsuit challenging DOMA.

SLDN ED Aubrey Sarvis, SLDN co-founder Michelle Benecke and OutServe's Jonathan Hopkins (Photo by Karen Ocamb)

In a statement commemorating the repeal, Army Veteran and SLDN Executive Director Aubrey Sarvis said:

“Even as we celebrate the success we have seen so far on ‘Don’t Ask, Don’t Tell’ repeal, we know that implementation cannot be entirely successful as long as we have two classes of service members. It’s past time for the Secretary of Defense to act on this front, and at this six-month mark, it would be entirely appropriate to do so. The reality is that the Department of Defense started looking at benefits long before repeal of ‘Don’t Ask, Don’t Tell’ took place, including in the findings of the Comprehensive Review Working Group…. We cannot be a nation with two classes of service members.”  (For more on McLaughlin v. U.S. and the plaintiffs involved, click here.)

Meanwhile, retired transgender servicemember Autumn Sandeen noted that trans servicemembers now have OutServe through which they can connect – but they must still serve in silence since the repeal only applies to lesbian, gay and bisexual servicemembers.

And then there is the matter of the snarky DOJ continuing to fight the historic Log Cabin Republican lawsuit that hastened the repeal of DADT.  Here’s a little trip down memory lane.

LCR Executive Director R. Clarke Cooper and White & Case partner Dan Woods at the DADT repeal signing ceremony (Photo courtesy Clarke Cooper)

Dan Woods, a partner in White & Chase,  took on the Log Cabin Republican’s appeal to challenge the constitutionality of DADT in 2004 pro bono. Woods and his team endured years of fighting the DOJ – finally landing before US District Court Virginia Phillips in Riverside in 2010.  I can attest that the slew of DOJ lawyers were rude and patronizing – essentially arguing that the court should defer to the Pentagon because courts always defer to the military. Phillips accepted most of Woods’ legal arguments and on Sept. 9, 2010 ruled that DADT was unconstitutional (here’s the decision) and issued an injunction against enforcement of DADT worldwide.  As CBS News reported at the time, Judge Phillips said

the Log Cabin Republicans “established at trial that the Don’t Ask, Don’t Tell Act irreparably injures servicemembers by infringing their fundamental rights.”

She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

“Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers’ rights or to compensate them for violation of their rights,” Phillips said:

Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Before issuing her order, Phillips had asked for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban’s enforcement.

The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.

“The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” said Dan Woods, an attorney for the Log Cabin group.

Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.

The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

Legal experts say the Obama administration could choose to not appeal her ruling to end the ban — but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.

As I reported on Oct. 24, 2010:

This cartoon by Walt Handelsman sums up the confusion the military must feel since District Court Judge Virginia Phillips ruled Don’t Ask, Don’t Tell unconstitutional and Pentagon decided to abide by her subsequent Oct. 12 permanent global injunction against enforcement of DADT – until the Obama Justice Department was granted an emergency temporary stay by the 9th Circuit Court of Appeals last Wednesday, pending a DOJ appeal of Phillips’ original ruling.

The injunction prompted concerns in the Pentagon that  that DADT would end through the courts before proper “training” had taken place – prompting Defense Sec. Gates to actually urge Congressional repeal in late 2010 before the new more conservative Republicans were sworn in and repeal might become more problematic. Meanwhile, people such as openly gay law professor Tobias Wolff pointed out on the Huffington Post that the order by the district court and the injunction alone were not sufficient since the “the DADT statute would still be on the books. Only a repeal by Congress can change that. The only thing stopping the DADT statute from being enforced would be the court’s worldwide injunction. And if a hostile administration were to come into power in 2013 or 2017, that hostile administration could come to the court and ask it to lift or modify the injunction.” He argued that only a repeal of the law would suffice.”

President Obama signs repeal of DADT (Official White House Photo by Chuck Kennedy)

President Obama signed the repeal act on Dec. 21, 2010 – but Tom Carpenter pointed out:

[U]nfortunately, the final repeal legislation is a skeleton of the Military Readiness Enhancement Act (MREA), the bill that had been advanced by leaders of repeal of DADT.  The repeal statute was stripped of any nondiscrimination provisions and therefore will require the President to issue an executive order in order to provide for real equality.

When the repeal went into effect on Tuesday, Sept. 20, 2011, Carpenter celebrated the historical significance but wrote:

we must also recognize the fight for equality in the military is far from over. Yes, GLB service members will be able to come out, if they choose, without fear of imminent discharge. In order to truly level the playing field for LGB troops and their families, there are 49 major issues that need to be dealt with by the Pentagon.  Most important of these is the lack of protection against discrimination missing in the repeal law…..

With a President Romney, Perry, or Bachman in 2013 and someone like Joe “you lie!” Wilson as Secretary of Defense, it would not take much imagination to anticipate an attempt to return to DADT or the earlier complete ban on open service. It would not require an act of Congress, nor even an executive order to do this: the Pentagon could turn the clock back by merely changing existing DoD regulations.

Ten days later, the 9th Circuit ruled on the LCR case, Carpenter, an attorney, wrote:

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…..

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 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.”

District Court Judge Virginia Phillips

But while the case per se is over, there is still the matter of attorneys’ fees which brought the two sides back in court before Judge Phiilips. And last Thursday, on March 15, in a detailed ruling recounting the case and the points on which Woods and LCR trumped the DOJ, Phillips ruled that LCR deserved attorneys fees and expenses. As the National Law Journal reported:

U.S. District Judge Virginia Phillips in Riverside, Calif., ruled on March 15 that White & Case, which represented Log Cabin Republicans on a pro bono basis, was entitled to fees and costs under the Equal Access to Justice Act because the organization obtained an injunction halting enforcement of the ban on openly gay service members. Phillips, who issued that injunction as part of a judgment finding Don’t Ask, Don’t Tell unconstitutional in 2010, said she would decide the amount of fees and expenses at a later date.

Dan Woods, a partner in the Los Angeles office of White & Case who spearheaded a team of dozens of attorneys in the case, on Jan. 12 asked for up to $2.1 million in fees and expenses under the act, which grants attorney fees to a “prevailing party” in an action against the United States unless the government’s position in the case is “substantially justified.” ….

Department of Justice spokeswoman Tracy Schmaler did not respond to a request for comment.

Phillips rejected arguments that the gay Republican organization was entitled to an additional $2.2 million in fees and $47,000 in costs under the Federal Rule of Civil Procedure. Wood had argued that his client was entitled to the additional recovery because the government had failed to prove that Don’t Ask, Don’t Tell contributed to national security — a point President Obama conceded in 2009…..

In his original motion, Woods argued that his client was entitled to more than $2 million in fees and $35,000 in costs because it had successfully argued that Don’t Ask, Don’t Tell was unconstitutional. He noted that the 9th Circuit had not vacated Phillips’ ruling on the merits of the case. He also maintained that the Log Cabin Republicans had effectively lifted the stay on Phillips’ injunction prior to effective repeal of Don’t Ask, Don’t Tell, allowing service members to avoid discharge under the law.

Phillips agreed. “Here, the Ninth Circuit’s partial lift of the stay provided a significant benefit to Plaintiff as it resulted in the halt of all investigations and discharges under the Act,” Phillips wrote. “The limited injunctive relief therefore constituted a material alteration in the legal relationship between the parties. This material alteration provided a benefit to Plaintiff that was not nullified when the Ninth Circuit found the Act’s repeal rendered the case moot and vacated the judgment and injunction.”

She said the government’s defense of the statute was unreasonable. “In opposing the lift of the stay, Defendants advocated for continued enforcement of Don’t Ask, Don’t Tell, even though Congress had passed the Repeal Act and Defendants no longer defended Don’t Ask, Don’t Tell as constitutional,” she wrote.

Phillips rejected the Justice Department’s argument that awarding fees and costs would be harmful to the government because such awards would be considered “collateral proceedings” to a ruling that the 9th Circuit had vacated. (Emphasis mine)

Log Cabin Republicans attorney Dan Woods (Photo courtesy Dan Woods)

In an interview with me, Woods said:

We are also very pleased with Judge Phillips’s decision. We still have a long way to go to recover any fees or costs but this decision was an important and necessary first step.

I doubt that she had any intention of circumventing the Ninth Circuit’s order; to me, she was just being her customarily thorough self. To be clear, though, while lawyers cannot cite her findings from the trial in future cases, journalists and historians certainly can. The Ninth Circuit cannot erase history.

Asked if he thought the DOJ would appeal Phillips awarding the attorneys fees, Woods said, “I have no idea. Your guess is as good as mine.”

My guess – given their rude, patronizing behavior in court – is that they will.

Woods said that the last he heard about the outstanding discrimination cases, the “government was trying to settle them quietly.” And though the 9th Circuit ruling was a blow after all those years of hard work, Woods said he’s OK”

I am holding up fine. Thank you for asking. I was obviously greatly disappointed by the order vacating Judge Phillips’s judgment but remain greatly satisfied that our win at the trial and our wins on motions in the Ninth Circuit played such a significant role in bringing down DADT.

Now the DOJ and the Pentagon need to “show him the money,” end discrimination in the military – and find some way to circumvent DOMA so Charlie Morgan and her family don’t have that financial stress impeding Morgan’s battle against cancer. That would be one way to honor her service!  Six months after the repeal of DADT, the effects of that unconstitutional and overtly discriminatory law are still being felt.

 

 

 

{ 3 comments… read them below or add one }

Tom Carpenter March 21, 2012 at 2:41 PM

Karen: Thank you for the reality check. While yesterday was a time of celebration because opponents of the repeal of DADT have been dead wrong, everyone needs to understand there is still much work to be done before all service members are treated equally. In my meeting with high ranking military officers who were working for the Comprehensive Review Working Group, they all agreed that there was no place in the force for two classes of service members. They were as frustrated as we are with the impact of DOMA on benefits for spouses and dependents. Notwithstanding DOMA, the White House and civilian leadership at the Pentagon have the means to make some of these changes through DoD regulations. What are they waiting for?

Reply

Surely U Jest March 23, 2012 at 11:38 AM

I’m a bit perplexed. As has been mentioned, it’s DOMA, not DADT, that now stands in the way of service members getting the vast majority of benefits they deserve while at the same time relegating same-sex military families to second class status.

Yet, just a little over 24 hours ago, LCR lauded John Boehner on its blog for his defense of DOMA and criticized the President for not defending what he believes to be an unconstitutional law. LCR even went so far as to say they [LCR] “weren’t afraid of having the facts proven in court.”

I’m sure the Speaker appreciated the “atta-boy” from LCR and I guess it’s nice that the even though BLAG hired one of the top constitutional lawyers in the country to defend against overturning DOMA, that LCR sees this opposition as half-hearted. Yet, somehow I bet any of that is of little consolation to Charlie Morgan, her wife, and children.

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Joe S March 23, 2012 at 12:58 PM

By rendering the case moot isn’t that violating or disrespecting the legal idea of precedent? Lawyers often rely on precedent to guide their cases, so what would be the point of saying a case is invalid for such use when it’s currently the only case addressing the issue?
Honestly I think if it’s possible from the 9th court to be challenged on its action it should be done. However , as has been pointed out, DOMA is right now of more direct concern , and must be dealt with.

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