The U.S. 9th Circuit Court of Appeals panel designated to handle the appeal in Log Cabin Republicans v. United States (constitutional challenge to the military "don't ask, don't tell" policy) is eager to know whether the case is over and should be dismissed. On July 11, the panel issued an order demanding that the government inform the court quickly about what is happening in this case.
On July 1, the panel issued an order lifting the stay on an injunction against the "don't ask don't tell" policy. The injunction was issued late last summer by U.S. District Judge Virginia Phillips, who had found the policy to be unconstitutional. The stay had been ordered upon the petition of the Justice Department, which argued then that national security concerns dictated keeping the policy in place while the case was on appeal. Rather than appeal that order, the Pentagon announced that the Defense Department would comply with it. A spokesperson told the press late last week that notice was being sent to field commanders to stop enforcing the policy, and to recruiters to begin accepting applications from openly gay individuals. This means that those who were dismissed under the policy and want to rejoin the military are free to apply.
In light of these developments, it's not surprising that the court wants to know whether the case should be dismissed now as moot.
The immediate issue is that to this point the government has not filed any brief with the court arguing that the DADT policy, formally known as 10 U.S.C. section 654, is constitutional. The district court held it unconstitutional, and the government filed its appeal, noting its disagreement with the district court. But prior to oral argument, the government had to file a brief on the merits. Before its deadline to file a brief had occurred, Congress had passed and President Obama had signed the DADT Repeal Act of 2010, which will take effect 60 days after the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff jointly certify in writing to Congress that the law can be implemented without impairing our defense capability. At the White House Gay Pride reception late last month, the President said that certification would be coming "in a matter of weeks."
After the Repeal Act was passed, the Justice Department suggested to the court that the appeal in the Log Cabin suit could be placed on hold and then dismissed without any need for briefing on the merits or oral argument. Log Cabin responded adversely to this, pointing out that the statute had no time limit for its implementation and DADT remained in effect, perhaps indefinitely. If it is unconstitutional, then it is imposing unconstitutional terms on the service for LGB personnel. Log Cabin convinced the court to keep the case active and to demand a brief from the government. The government then filed its brief, but did not argue that DADT was constitutional. Instead, it argued that the DADT Repeal Act, with its open-ended period for certification prior to going into effect, was a constitutional solution by Congress to the problem of undertaking an orderly elimination of the DADT policy.
That, of course, does not directly meet the issue properly before the Court of Appeals, as the court observed in its order of today (July 11): "The Government argues only that the Don't Ask, Don't Tell Repeal Act of 2010 is constitutional. But the district court found sec. 654, not the Repeal Act, unconstitutional. Therefore, the central issue this court must address on appeal is whether the district court properly held that sec. 654 is unconstitutional. No party to this appeal has indicated an intention to defend the constitutionality of sec. 654 or to argue that the constitutionality holding of the district court should be reversed." If no one is arguing that the district court's ruling is incorrect, what's the point of an appeal?
Of course, the court points out, when the Justice Department decides not to defend the constitutionality of a statue, it is obligated to notify Congress, so that Congress can intervene and defend the statute. (Does this sound familiar, DOMA fans?) So, the court now issues a 3-part order. First, requiring the government to tell the court whether it is going to defend the constitutionality of Sec. 654. Second, if it does not intend to do so, will it communicate to Congress in enough time so that Congress can intervene prior to the pending hearing (now scheduled for late in August)? Third, both parties are asked whether there is any reason why the court should not dismiss the case as moot, "either immediately or upon such time as the President certifies that all conditions for repeal" have been met? The court orders that responses to these questions be filed in writing with the court within 10 days.
Sensible. The court would like to clear off its docket a case that needn't be decided. The lawsuit seems to be moot, for practical purposes, already, and definitely once the DADT Repeal Act takes effect. In another sense, however, it is not moot because the question whether the DADT policy violated the constitution is integrally bound up with other gay rights constitutional litigation as part of a gigantic jigsaw of legal reasoning and arguments that flow back and forth between the various cases. However, at the level of doctrine, these issues will be addressed by the 9th Circuit in the Golinski case, by the 1st Circuit in the Gill case, and ultimately — most likely — by the Supreme Court within the next few years in one of these cases or the Pedersen or Windsor cases (DOMA challenges pending in trial courts within the 2nd Circuit). So at this point, happily, the military policy becomes a bit of a sideshow in the realm of constitutional litigation. Congress has preempted any attempt to make this a potential Supreme Court case by passing the Repeal Act, although House Republicans have persisted in their senseless attempt to undermine repeal through amendments to Defense Department legislation. So dismissal now makes sense.
I’m guessing that it may be a purely legal and procedural point, and that if repeal actually goes through in the next few months the case is indeed mooted. However, since the repeal of DADT is through an act of Congress, and DADT could be reinstated by some future Congress (and several GOP presidential candidates say they would encourage that), wouldn’t it be better to get a final ruling that DADT is unconstitutional so as to preclude any reinstatement?
You point out an interesting problem. In the absence of a ruling on constitutionality, Congress could come back after a change in political control and try to re-enact DADT. In an email exchange with Rex Wockner, Jon Davidson of Lambda pointed out that the constitutionality of DADT is also potentially significant for other pending litigation, including possible claims by military personnel discharged under the policy and claims by the government for recoupment of ROTC scholarships. So there is certainly a basis for somebody to make an argument that even if the policy is not being enforced and has been repealed, its constitutionality would be significant for other pending cases. The problem with that, of course, is that those cases are not this case. As to the litigation between these parties, the issue is mooted and the constitutionality of DOMA is no longer significant in the context of their case.
I’m not sure how this would go. But it seems likely that the DOJ would not make any argument at this point that the case should be heard, since their strategy all along has been to delay this appeal until the Repeal Act takes effect. So it would be up to Log Cabin Republicans to make the argument that the case needs to be decided.