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Ninth Circuit Welcomes Future Anti-Gay Laws By Throwing Out Log Cabin DADT Case

The Ninth Circuit Court of Appeals just dismissed the Log Cabin Republican’s case against “Don’t Ask, Don’t Tell” stating that “the repeal, in short, gave Log Cabin ‘everything’ its complaint ‘hoped to achieve.'” This is bad news.

The LCRs wanted a federal court to declare the law unconstitutional so that a future administration could not come back and reinstate DADT or a similar anti-gay law. They also hoped a decision against DADT would help pave the way so the thousands of soldiers discharged under the law could “get reinstatement, back pay, or other compensation for having their careers cut short.”

But the Ninth Circuit’s ruling even went so far as to vacate the district court’s rulings and findings in the LCR’s case saying, “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.”

The judicial branch would like to pretend that all is good and well now that DADT is gone, but nothing could be further from the truth. A ruling in favor of LCR would have gone a long way towards ensuring that such a law never got onto the books ever again, something which remains a possibility now that this case has been rendered moot. Looks like our only hope is with a court declaring the Defense of Marriage Act unconstitutional.

By:           Daniel Villarreal
On:           Sep 29, 2011
Tagged: , ,
  • 32 Comments
    • Joetx
      Joetx

      So much for the supposedly liberal 9th Circuit.

      Sep 29, 2011 at 3:24 pm · @ReplyReply to this comment ·
    • Queer Supremacist
      Queer Supremacist

      And apparently we’re ungrateful self-loathing traitors for not kowtowing to that fascist glory-hog who is responsible for this?

      Homophobic Republicans everywhere, Obama is your best friend.

      Can judges be recalled?

      Sep 29, 2011 at 3:34 pm · @ReplyReply to this comment ·
    • Hyhybt
      Hyhybt

      One problem: as I understand it, so long as DADT is not *in fact* reinstated, it’s a moot issue. Look at the Prop 8 case’s issues with standing. Nobody is harmed by a policy that does not exist, and do we really want to allow suing in advance to prevent hypotheticals as a general practice?

      Upholding the previous ruling would certainly have been convenient, but (again, as I understand it) it wouldn’t have made much sense at this point, solely because what they were suing to have removed is removed already.

      Sep 29, 2011 at 3:42 pm · @ReplyReply to this comment ·
    • B
      B

      QUEERTY: “The LCRs wanted a federal court to declare the law unconstitutional so that a future administration could not come back and reinstate DADT or a similar anti-gay law.”

      Unfortunately, a decision declaring the DADT law unconstitutional wouldn’t prevent a different version of DADT from being passed, which would then have to make its way through the courts.

      What the court really did was to drop the thing because it is now moot, so they can spend their time on everything else.

      Sep 29, 2011 at 3:43 pm · @ReplyReply to this comment ·
    • Daniel Villarreal
      Daniel Villarreal

      @B: Where it wouldn’t outright prevent the passage of such a law, it would have laid good legal precedent that would help courts declare such a law as unconstitutional.

      Sep 29, 2011 at 3:46 pm · @ReplyReply to this comment ·
    • Mike in Asheville
      Mike in Asheville

      Relying on Queerty to provide thorough legal analysis of this issue is misplaced. While Queerty and Daniel Villarreal have provided the basic details, the Court’s opinion is actually substantially more disruptive than as reported.

      Reading the opinion, the Court ruled based on long standing precedence regarding moot cases resolved by repealing the subject of the case. Based on the precedents argued, the Court did not have any practical choice but to render the case moot.

      The extra step to specifically vacate all of the findings, evidence and holdings of the district court, is not unusual. While very disappointing for the many victims of DADT, it happens to also be of help in that litigation for former service members to not rely on an opinion that would not withstand scrutiny under appeal.

      One of the Circuit Judges wrote an additional opinion straight-forwardly opining that the district court ruling WOULD NOT sustain the appeal due to a reviewable issue of misusing Lawrence v Texas when the district court ruled DADT unconstitutional.

      Bottom line: Log Cabin got everything they sued for through the repeal of DADT; while having DADT ruled unconstitutional was of great morale value, the Court of Appeal basically said that that ruling would not have been upheld resulting that any use of the district court’s ruling would have been suspect and not reliable.

      Log Cabin stood up and forced movement in spite of all the obstruction by wing nuts. Cheers for that. Equity for dismissed service members is not, alas, at hand; but our community stood up to fight HIV/AIDS and funds services for many. Time to stand-up for those service members too.

      Sep 29, 2011 at 4:13 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      We FINALLY got heightened scrutiny…and fucking Barack Obama took it away.

      So fuck you, Mr. President! Seriously, fuck you.

      Sep 29, 2011 at 4:33 pm · @ReplyReply to this comment ·
    • Pitou
      Pitou

      @the crustybastard: I must agree, good sir.

      Sep 29, 2011 at 4:55 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      “”stating that “the repeal, in short, gave Log Cabin ‘everything’ its complaint ‘hoped to achieve.’”””
      __________________________

      Cowards. They did NOT achieve everything. If the COURT had ruled on it, it would have prevented Congress from ever REINSTATING it AND, if they had struck it down it could have been used to attack companies still discriminating against gays.

      Sep 29, 2011 at 4:56 pm · @ReplyReply to this comment ·
    • PS
      PS

      I understand the “you got everything you wanted” response from the 9th circuit. Log Cabin did NOT sue to have benefits established for LGBT service members, something that is more of a DOMA issue. They sued to have DADT tossed out. That being said, the court did their job in addressing the lawsuit before them. If the lawsuit is now moot (because DADT no longer exists), what other choice would they have? Now, they could have done this BEFORE Obama repealed it. But, Obama fought them on that for some reason. He wanted the process (through him) to work itself out vs. DADT being deemed unconstitutional by the courts. I’m not a legal expert so I really don’t know which is best. I just know that Obama could have addressed a lot more LGBT issues during his first two years vs. delaying until his 3rd year to “evolve” on DOMA cases, signing off on the DADT repeal, etc. Let us not forget, Obama STILL does not support full marital equality. He remains silent on this and won’t lead on this civil rights issue.

      It seems like Bill Clinton could certainly be a LEGAL advocate for LGBT rights at this point. Imagine Bill Clinton signing a “friend of the court” brief stating that he now concurs that DOMA is unconstitutional and that he regrets signing it. Having two presidents, especially the one that signed it into law, taking LEGAL stances on DOMA would certainly seem to carry additional weight with the circuit courts and SCOTUS.

      Sep 29, 2011 at 5:15 pm · @ReplyReply to this comment ·
    • Michael Bedwell@LeonardMatlovich.com
      Michael Bedwell@LeonardMatlovich.com

      @Mike in Asheville:

      No less than the Attorney General of the United States disagrees with you:

      Last February, in the process of explaining their total reversal on fighting DOMA cases, US Attorney General Eric Holder said on behalf of Obama: “[The Supreme Court] has rendered a number of decisions that set forth the criteria THAT SHOULD INFORM THIS AND ANY OTHER JUDGMENT as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s ‘ability to perform or contribute to society’. … Indeed, WHEN THE COURT RULED THAT GENDER-BASED CLASSIFICATIONS WERE SUBJECT TO HEIGHTENED SCRUTINY, WOMEN ALREADY HAD WON MAJOR POLITICAL VICTORIES such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).”

      OF COURSE, that was “any other judgment” except one about DADT and when they didn’t want to contradict themselves in order to defend it. Barack Obama can twist himself in so many ways he could star in his own Cirque du Soleil show. Rationally, logically one can’t have it both ways—unless one is the military and a Democratic President is just as willing to be your two-faced Piss Boy as every Repug President has.

      Barack the Ripper—stabbing tens of thousands of gays who were discharged in the back by declaring that those who wrote DADT was right—they DID hurt their country’s national security—and doing the same thing to any currently serving who imagined that with repeal would come equal treatment IN the military. Now the miitary can continue to deny them the same protections against harassment and discrimination in, e.g., assignments, evaluations, promotions, that blacks, women, et al. have, AND their partners benefits NOT banned by DOMA. And, of course, cutting to shreds the ONLY thing that could have prevented a future Repug President or Congress from bringing back some form of the ban. [#4 B: you don’t know what the fuck you’re talking about.]

      “At what point do we say ‘ENOUGH’? At what point do we stand up and say we will not allow it to happen anymore? Enough is enough!” – Harvey Milk.

      Today is that day for me. Only if Christ appears in a burning bush and guarantees me that, otherwise, whatever Repug will win will I vote for Barack Obama next year.

      Sep 29, 2011 at 5:20 pm · @ReplyReply to this comment ·
    • Hyhybt
      Hyhybt

      The biggest thing to prevent reinstatement, court decision or not, is the sheer difficulty of it, politically and practically.

      It’s one thing to say “this must be kept secret,” and quite another to say “this must be made secret, even though everybody already knows;” putting any form of DADT back in place would require either discharging everyone who has come out in the meantime (which surely will be quite a lot by the time a new administration comes along, even if that’s 2013) or else having two sets of rules, where those already out can stay out but nobody else can. And that second option is unworkable because it proves unequivocally that there’s no harm done by their being out. That’s on top of the damage done to operations by either option.

      Politically… how smart is it to implement a policy that somewhere around three quarter of the public is against? SAYING you will to win the primary may be necessary, and it may not be a prominent enough issue to hurt much in the first general election, but actually doing it is different. And besides the rarity of a serious primary challenge for an incumbent, as I understand it having one means you’ll lose the general anyway, so once in office that particular motive is gone.

      Sep 29, 2011 at 5:45 pm · @ReplyReply to this comment ·
    • Erik
      Erik

      The reinstatement of DADT, or even the outright ban on gay and lesbian service members that existed prior to DADT, will likely never happen. Even if Obama were to lose re-election, it would be very difficult to put the genie back in the bottle after two years. It would be disruptive to the military and would force the dismissal of a large number of out military personal. Because of this, any such proposal would be met with strong opposition from military leaders, and be highly controversial.

      Now, would someone like Michele Bachmann reinstate DADT if she were elected President next year? Absolutely. But Michele Bachmann will never be anything more than a visitor to the White House. Mitt Romney is the likely GOP nominee next year and I don’t see him doing it.

      I think it’s a mute point. DADT is gone and it’s not coming back.

      Sep 29, 2011 at 5:52 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      Judge Diarmuid F. O’Scannlain’s concurrence adopts the overturned reasoning of Bowers v. Hardwick and Justice Scalia’s infamous hyperventilating dissent from Lawrence v. Texas; to wit, fundamental rights become un-fundamentalized when claimed or exercised by homosexuals.

      This rationale may be represented by the following formula: “There may be a fundamental right to X*, but there can never be a fundamental right to homosexual X”

      He writes,“[W]hen a right is not rooted in our constitutional text, traditions, or history, our authority as judges is at its end. We must then leave the task of identifying and protecting new rights where the Constitution leaves it—with the political branches and the people.”

      The really breathtakingly circular bullshit argument employed is that the recognition of any right possessed of a gay person can be neither fundamental nor an equal right, but some novel “new right” which cannot possibly be regarded as fundamental, because fundamental rights are only possessed by those whose fundamental rights have traditionally and historically been guaranteed and protected, and obviously gay rights haven’t, otherwise you wouldn’t be here suddenly claiming you have fundamental rights, which you don’t possess because — duh! — you’re gay, so that’s not my problem, but you’re free to try winning a popularity contest.

      Judge O’Scannlain is also apparently unfamiliar with the Constitution’s Equal Protection Clause, which if I recall correctly doesn’t specifically exclude gay people.

      ——————
      [* Where X = life, liberty, pursue happiness, speech, religious belief, a free press, peacefully assemble, keep and bear arms, privacy, stand for office, vote, own property, enter contracts, relocate domiciles, marry, reproduce or abort, live together as a family, give your child a private education, obtain legal assistance if indigent], etc.]

      Sep 29, 2011 at 6:11 pm · @ReplyReply to this comment ·
    • Michael Bedwell@LeonardMatlovich.com
      Michael Bedwell@LeonardMatlovich.com

      @Erik:

      You’re simply wrong on so many points—history, law, politics, what the ruling means—that one could spend years blowing it to pieces. But I’ll focus on the most important: this was NOT just about the potential for bringing the ban back in some form but what is happening to gay troops IN the military NOW. They are being treated as second class citizens. A commander can give them a lousy, even dangerous assignment, a poor evaluation, deny them a promotion…simply because they’re gay and their recourses for fighting it are worthless. By contrast a black soldier, a woman sailor, a Muslin Marine discriminated against has an entire apparatus under the Military Equal Opportunity Program to fight back. At the same time, this ruling empowers the Pentagon to continue to deny even legally married gay couples with one partner in the military benefits that ever THE PENTAGON admits are NOT banned by DOMA such as access to military family housing. The Pentagon demanded in May of last year that repeal legislation be gutted of anything that would prevent such arbritary discrimination. Obama backed them on that, and now the betrayal is complete by convincing the court to uphold their right to discriminate…by contradicting the Administration’s reversal and own arguments about why DOMA is unconstitutional. [see above]

      Sep 29, 2011 at 6:24 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      To those who insist “reinstatement will never happen,” I present the following facts:

      1. The federal law that was repealed was 10 USC §654, aka, The Homosexual Conduct Act.
      2. That Act was an absolute ban on gays in the military in any capacity under any circumstances.
      3. Bill Clinton promptly modified §654 by issuing a Department of Defense Directive.
      4. That DOD Directive allowed gays to serve under certain limited circumstances, and so became known as DADT.

      Today we have a federal law permitting open service that could likewise be modified by another president’s DOD Directive restricting gay service.

      There is nothing to prevent that. Nothing.

      Know why?

      Because the decision that would have prevented that WAS JUST VACATED AT THE BEHEST OF PRESIDENT OBAMA.

      Sep 29, 2011 at 7:12 pm · @ReplyReply to this comment ·
    • Hyhybt
      Hyhybt

      You have a very odd definition of “Nothing.”

      There is quite a lot less than if they had upheld the decision, but logistical and political reasons are not “nothing.”

      Sep 29, 2011 at 7:17 pm · @ReplyReply to this comment ·
    • Erik
      Erik

      @Michael Bedwell@LeonardMatlovich.com: I’m wrong on history, but you think the judiciary is going to get involved in internal military affairs, reviewing things like assignments, evaluations, and promotions? Precedent has long maintained the judiciary does not entangle itself in internal military affairs. It will not. Change, like those you described, will have to come from the Executive Branch. Federal courts would likely be receptive to hearing a challenge of military benefits denied by DOMA, because such challenge would be reviewing federal law and not military policy, but that would need to be filed in a new case.

      Calling anything related to the dismissal of this case a “betrayal” is ridiculous beyond words.

      Sep 29, 2011 at 7:34 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Hyhybt:

      So if a determined homophobe becomes POTUS, you imagine they would be constrained by…logistics?

      Funny.

      Sep 29, 2011 at 7:42 pm · @ReplyReply to this comment ·
    • Hyhybt
      Hyhybt

      @the crustybastard: It’s not foolproof, but it’s far from the nothing you say. *Everyone* is constrained by logistics to some degree, and every politician who has any desire at all to win elections is constrained at least somewhat by popular opinion.

      Sep 29, 2011 at 9:07 pm · @ReplyReply to this comment ·
    • Steve
      Steve

      So, does this mean that the people who were harmed by the law have been made whole?
      Have all of the former servicemen had their discharges upgraded to honorable?
      Have they receive back-pay and benefits?
      If not, how can the case be moot?

      Sep 29, 2011 at 9:18 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Hyhybt:

      So a determined homophobe POTUS would be constrained by logistics and good sense?

      Sure.

      Sep 29, 2011 at 10:05 pm · @ReplyReply to this comment ·
    • Queer Supremacist
      Queer Supremacist

      @Joetx: Oh, they’re still “liberal”. If anyone other than Log Cabin Republicans had filed this suit they wouldn’t throw it out. If McCain were president they wouldn’t throw it out. They did this to help Obama because they don’t want some EEEEEEEEVIL white male fascist RepubliKKKans taking credit for a gay rights victory.

      Sep 29, 2011 at 10:28 pm · @ReplyReply to this comment ·
    • Erik
      Erik

      @Queer Supremacist: Judge Diarmuid O’Scannlain was the only one of the three judge panel to release a concurring opinion in which he did talk about the merits of the case. In it, he advances the traditional conservative argument for limited due process protections and concludes: “If we had been able to reach the merits in this case, I would have been obliged to vote to reverse” the trial court decision striking down DADT.

      Judge O’Scannlain was appointed by Ronald Reagan.

      Nice try.

      But never let the facts get in your way when there’s a chance to demagogue, right?

      Sep 29, 2011 at 11:46 pm · @ReplyReply to this comment ·
    • Queer Supremacist
      Queer Supremacist

      @Erik: So he was nominated by the same President who first nominated Vaughn Walker to the bench. That’s nice to know.

      Who appointed the other two clowns in the 9th Circus Court of Appalls? Does it even matter when Obama said jump and they said, how high?

      But I thought the point was mute. (Rolls eyes, gets back to more important things, refrains from pointing out that the correct word is “moot,” and that we’ll see how MOOT it will be when gay soldiers start getting passed over for promotions, see their partners denied access to military housing)

      Sep 30, 2011 at 12:59 am · @ReplyReply to this comment ·
    • Michael Bedwell@LeonardMatlovich.com
      Michael Bedwell@LeonardMatlovich.com

      @Erik:

      It doesn’t matter who appointed these judges, YOU CRETIN! They did WHAT OBAMA ASKED THEM TO DO. And that IS a betrayal because it was legally and functionally UNNECESSARY.

      TIP: take both hands….grab your shoulders…and pull your head out of his ass!

      Sep 30, 2011 at 2:37 am · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      @the crustybastard: Why do you think a single district court opinion about a particular policy would have functioned as a permanent bar on future anti-gay discrimination in the military?

      Also, more generally, LCR v. United States didn’t invoke “heightened scrutiny” in the equal protection context, and even if its reasoning had been accepted by an appellate court, it’s not clear it would have had much if any effect on the relationship recognition equal protection issues that currently dominate high-profile gay rights litigation. The DADT policy mandated that if you engage in an activity the Supreme Court has said is constitutionally protected (consensual gay sex), and the military finds out, you can be discharged: that’s why Judge Phelps invoked heightened scrutiny. This is not really comparable to, say, same-sex marriage bans, which don’t penalize gay sex as such but rather deny equal recognition to same-sex relationships. It seems to me that both this Queerty post and some people in the comments are overestimating the opinion’s broader implications.

      Sep 30, 2011 at 2:37 am · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      @Michael Bedwell@LeonardMatlovich.com: The Ninth Circuit panel did not “uphold” anyone’s right. The Ninth Circuit panel did not issue ANY RULING AT ALL on the merits. They vacated the district court ruling and dismissed the case for lack of jurisdiction due to mootness. It’s a procedural rule that has nothing to do with whether it’s constitutional for the military to discriminate against gays in any context. The DOJ’s stance on heightened equal protection scrutiny is wholly irrelevant to the mootness question and to what happened today.

      Sep 30, 2011 at 2:43 am · @ReplyReply to this comment ·
    • Michael Bedwell@LeonardMatlovich.com
      Michael Bedwell@LeonardMatlovich.com

      @Fodolodo:

      NO, the ruling was about discrimination on the basis of sexual ORIENTATION not just sexual behavior…JUST as a ruling on DOMA would be. DADT met the EXACT criteria the Obama Mafia used to explain their abrupt reversal on DOMA cases. But they’re too two-face, too willing to be Piss Boys for Pentagon homophobes that they neither have the balls nor the integrity to admit it:

      “[The Supreme Court] has rendered a number of decisions that set forth the criteria THAT SHOULD INFORM THIS AND ANY OTHER JUDGMENT as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s ‘ability to perform or contribute to society’.” – US AG Eric Holder re DOMA cases, February 23, 2011.

      And MULTIPLE constitutional law experts have said that the LCR ruling WOULD have banned any other kind of antigay discrimination by the military both now or in the future. If it WOULDN’T, if a DISTRICT court ruling was unimportant then why did Obama appeal it?

      Sep 30, 2011 at 2:45 am · @ReplyReply to this comment ·
    • Fodolodo
      Fodolodo

      @Michael Bedwell@LeonardMatlovich.com: The language you’re quoting is from AG Holder explaining why heightened EQUAL PROTECTION scrutiny applies to DOMA. The district court ruling in LCR v. United States was not a ruling on the basis of equal protection. It was a substantive due process ruling based on Lawrence (and a First Amendment ruling based on the burden on the expressive rights of gay soldiers, which is even less relevant to relationship recognition.) The Ninth Circuit opinion LCR v. United States relies on, Witt v. Dep’t of the Air Force, actually explicitly refuses to apply heightened equal protection scrutiny to discrimination on the basis of sexual orientation.

      It would be nice for you to actually point to the “MULTIPLE constitutional law experts” you mention. I’m very doubtful that the reasoning in LCR v. United States effectively invalidates, e.g., DOMA as applied in the military context.

      Sep 30, 2011 at 3:12 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Fodolodo: “Why do you think a single district court opinion about a particular policy would have functioned as a permanent bar on future anti-gay discrimination in the military?”

      Yeah, that wasn’t my argument, nimrod.

      Had the decision been allowed to stand, it would have had some precedential value. Now it has none. Eventually some servicemembers are going to challenge the denial of benefits. They might claim deprivation of property and make a substantive due process argument. Heightened scrutiny would help, don’t you think?

      And while you’re airily agreeing that the case was properly dismissed for nothing more than mootness, you’re ignoring the obvious fact the Administration brought the appeal of LCR v Gates merely to buy time for the legislative repeal. The government was acting in bad faith and manipulating the justice system, and they shouldn’t derive any benefit from that.

      This presents the very disturbing appearance of the Ninth Circuit and the Administration working as a conspiracy.

      Oct 1, 2011 at 1:27 am · @ReplyReply to this comment ·
    • B
      B

      No. 5 · Daniel Villarreal · Member · 207 comments wrote, “@B: Where it wouldn’t outright prevent the passage of such a law, it would have laid good legal precedent that would help courts declare such a law as unconstitutional.”

      Daniel, what you are missing is the court’s backlog. While you may have preferred a ruling on DADT even though the law requiring it was repealed, spending time on that means delaying other cases, including ones challenging Proposition Eight.

      Oct 1, 2011 at 5:36 pm · @ReplyReply to this comment ·

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