History Is Made: Certification of DADT Repeal Compliance Was Issued Today

This afternoon,  President Obama transmitted to the chairs and ranking minority members of the Senate and House Committees with military oversight the certification signed by himself, Secretary of Defense Panetta, and Chairman of the Joint Chief of Staff Mullen, that the requirements set forth in the Don't Ask, Don't Tell Repeal Act of 2010, Public Law 111-321, have been met.  This transmission means that the Don't Ask, Don't Tell policy under which gays in the military must stay firmly in the closet will be repealed effective September 20, 2011.

This is a truly historic moment, because the repeal will represent the first time since before World War II (with the notable exception of a few days last fall and even fewer days earlier this month during the brief unstayed operation of an injunction issued by US District Judge Virginia Phillips last year) when U.S. military forces will be operating without any specific negative policy concerning military service by lesbians, gay men and bisexuals.

From the lead-up to World War II until 1993, such policies were adopted by the various service branches and subsequently the Department of Defense formed out of the consolidation of the separate service departments as military regulations.  They varied over time in the extent to which they authorized or mandated exclusion and separation of gay people.  Until 1993, the intake process requested individuals to disclose whether they had "homosexual tendencies," and psychiatrists were used in the intake process at times to "diagnose" homosexuality which, in common with the rest of the government, the military treated as a mental afflication during the 1940s and onward. 

All of this changed in 1993, after Bill Clinton was elected president on a platform that included a pledge to end the existing policy, which at that time mandated the exclusion of gay people and their discharge if they were discovered to be serving.  It was common for internal investigators to stage extensive 'witch hunts' seeking out gays in the military, and under the Uniform Code of Military Justice, evidence that individuals had engaged in gay sex would subject them to criminal penalties as well as discharge.  Strong congressional opposition to allowing gays to serve openly in the military, abetted by hysterical predictions by Pentagon leaders that such service would destroy morale and unit cohesion and deter voluntary enlistments, stopped Clinton's pledge in its tracks, resulting in the negotiation of the "don't ask, don't tell" policy, under which recruits would not be asked about their sexuality, and gay people could serve as long as everybody could pretend that they were not present.  This "let's pretend" game, which made the US military a bit of a laughingstock as all of our major military allies abolished their bans on gay military service outright, was notably ineffective in preserving the careers of gay servicemembers, although it gave the Pentagon cover to cut back on anti-gay personnel actions when it was in the interest of the brass to do so — i.e., when recruitment fell short and engagement in combat activity made it inconvenient to discharge valuable trained and experience personnel.

At any rate, political pressure to end the policy finally came to a head last year, and the DADT Repeal Act of 2010 was passed in December, setting up a process by which the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff were authorized by Congress to initiate the repeal of the policy by certifying that they had considered the recommendations of a report commissioned by the Secretary, that they had prepared the necessary policies and regulations to make the change, and that implementation of those policies would be "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces," with actual repeal to take place 60 days after such certification was made.

Today's written certification raises interesting questions about the pending case of Log Cabin Republicans v. United States, in which Judge Phillips ruled last year that the policy then in effect (prior to passage of the Repeal Act) was unconstitutional.  She issued a worldwide injunction against the enforcement of the policy, which was stayed by the 9th Circuit pending the government's appeal.  The Repeal Act was passed before formal briefing and argument of the appeal was to take place, and the government asked the court to put the case "on hold" with the idea that once the policy was ended, the case would be moot and would not need to be decided.  The court rejected that proposal and set a briefing schedule. 

The government responded by filing a brief arguing that passage of the Repeal Act had changed the legal issue before the court.  According to the government, the constitutionality of the law prior to the Repeal Act was now moot, leaving for the court the question whether the Repeal Act was constitutional.  That is, the government argued that since Congress had authorized repeal of DADT, the only remaining question was whether the method Congress had used to effect that repeal, i.e., keeping the prior policy in place until there was a certification that it could be lifted in 60 days without harming the military, was constitutional.  As to that, the government argued that deference to the political branches and military expertise was sufficient to sustain this temporary continuation of the policy.  Log Cabin Republicans vigorously disputed this, and earlier this month the 9th Circuit seemed to side with LCR, issuing an order to lift the stay and let the injunction go into effect.  After a few days, DOJ filed a motion for reconsideration of that order and sought a temporary stay of the injunction.  The court responded with a new temporary stay, but ordered that nobody be investigated, punished or discharged under the policy during this stay.  The court also set a short briefing schedule on whether the stay should remain in effect pending outcome of the case, but also questioned whether the case would be moot either when the certification was made or when the policy actually ends.

Now the certification has been made, setting the 60 day clock ticking, and there will be a fair amount of internally-generated pressure on the court to dismiss the case as moot.  This pressure should be resisted, because the questions whether the DADT policy in effect from 1993 until December 22, 2010, or its so-called temporary extension from December 22, 2010, through September 20, 2011, were/are constitutional is decidedly NOT MOOT.  The reason is that the application of the policy in various ways caused injuries to various people that should be compensable as constitutional torts if the policy was unconstitutional! 

Perhaps the most vivid example are the thousands of individuals who were discharged under the policy.  If the policy was unconstitutional, those discharges were unconstitutional as well, subjecting those individuals to loss of career, earnings, status, veterans benefits and other rights in violation of their rights to equal protection or due process (depending which litigation you were following, Witt v the Air Force or Log Cabin Republicans v. US).  In some cases, the Defense Department sought to recover scholarship money from ROTC members who were expelled under the policy.  In others, DoD sought to recover payment for attending the service academies from cadets who were expelled under the policy, or to recapture the cost of complete attendance from academy graduates who were discharged under the policy.  There are probably plenty of viable claims out there for military pensions as well.  All of these cases will turn on whether the policy that adversely affected these thousands of people was unconstitutional.  So the underlying legal question in the case is not moot, and one hopes the court resists the pressure it will feel internally and the demands it will receive from DOJ to dismiss this case prematurely.

If the government is no longer prepared to defend the constitutionality of the policy, then the appeal should be dismissed, leaving the district court's opinion in place, because the legal question underlying the case is not moot, as future causes of action may turn on it.

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