It seems there are almost daily new developments on the military "Don't Ask, Don't Tell" policy and the associated lawsuit brought by Log Cabin Republicans. Yesterday the Justice Department filed an Emergency Motion with the 9th Circuit, asking that the policy continue in effect until the certification process mandated by the DADT Repeal Act of 2010 can be completed. The 9th Circuit had previously lifted a stay of the October 2010 injunction against enforcement of the policy, based on the 9th Circuit panel's conclusion that the considerations underlying the stay no longer pertained due to recent developments.
The only way to understand what is happening is to go back and review the chronology. The DADT policy was adopted by Congress and signed into law by President Clinton in 1993, and was codified in 10 U.S.C. Section 654. Under the policy, to reduce it to its most basic meaning, LGB people can serve in the military provided that everybody can pretend they are not serving; in order to maintain that pretense, they may not say or do anything that would communicate to anybody in the military that they are gay. Under this policy, discharges of gay service members increased over what they had been previously, probably in part because the military recruitment process stopped inquiring into the sexuality of recruits, so it is likely that more LGB people were actually enlisting.
Anyway, various attempts to challenge Section 654 in the courts were unsuccessful until last year, when two federal judges, in the Log Cabin Republican case and the Witt case, found the policy unconstitutional. In Witt, the ruling was narrow, just pertaining to the discharge of the plaintiff, and the case was settled by the military without reinstating her to active duty. In the Log Cabin case, however, an organization was suing as representative of some members, and was seeking as its relief an injunction against operation of the policy. U.S. District Judge Virginia Phillips, finding the policy unconstitutional, issued that injunction on October 12, 2010, and refused the Justice Department's request to stay the injunction pending appeal.
A motions panel of the 9th Circuit issued a temporary stay at the request of DOJ, and then on November 1, 2010, issued a more open-ended stay while DOJ appealed Judge Phillips' ruling on the merits. Then in December Congress passed the DADT Repeal Act of 2010, under which Section 654 was provisionally repealed. That is, Congress directed that Section 654 remain in effect until such time as the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify in writing that DADT could be ended without impairing the operation of the military. The understanding articulated in the Repeal Act was that DoD would adopt the necessary changes in regulations and undertake the necessary training of the force, and the president and the military leaders would exercise their judgment as to when and whether to certify to Congress that it was safe to let the repeal go into effect. Even then, it would not go into effect until 60 days after certification. The articulated reason for adopting this process was to ensure an orderly process and that officers would be prepared to deal with whatever difficulties might arise. (Underlying this was the unarticulated but implicit assumption that there are enough committed homophobes in the military to justify anticipating problems with allowing gay people to serve openly.)
The implementation has been occuring. New regulations have been drafted. Training sessions have been held. By administrative action taken last fall, the Secretary of Defense basically put an end to involuntary discharges of gay personnel. Only one person has been discharged under Section 654 since then, at his own request for an expedited discharge because he said he did not want to serve after the policy was ended because it did not include any express protection for gay personnel against discrimination. A few other such cases are in the pipeline.
There was some speculation that certification might take place in June before Secretary Robert Gates stepped down from his position, but that didn't happen. At his Gay Pride Reception late in the month, President Obama stated that certification was happening in a "matter of weeks, not months," and within the past few days the service chiefs submitted their written status reports to the Chairman and the new Secretary, Leon Panetta. The content of those reports has not been made public.
Meanwhile, DOJ had asked the 9th Circuit to put the appeal of the Log Cabin Republicans case on hold. Their theory was that by repealing DADT and setting up an orderly transition process, Congress had made it unnecessary for the 9th Circuit to decide the case on the merits, so long as DoD was proceeding in good faith with the regulatory revisions and the training. Log Cabin Republicans disagreed, arguing that so long as DADT remained in effect, the constitutional rights of LGB personnel were in danger. The 9th Circuit sided with Log Cabin and refused to put the case on hold, setting a briefing schedule and contemplating oral argument.
The DOJ brief, filed in response to the court's schedule, argued that the issue before the court was now whether it was constitutional for Congress to maintain Section 654 in place as a temporary measure while an orderly transition was made to a post-DADT military. Log Cabin argued that the question remained whether Section 654 constituted an unconstitutionally discriminatory measure, and filed a motion asking the court to lift the stay on Judge Phillips' injunction.
While Log Cabin's motion to lift the stay was pending, the Obama Administration and the Justice Department took action in other cases that the 9th Circuit construed as a virtual admission that Section 654 was unconstitutional. Most significantly, in February the DOJ announced that it had concluded that anti-gay discrimination by the government was subject to heightened scrutiny under the 5th Amendment and that Section 3 of the Defense of Marriage Act, that mandates refusal by the federal government to recognize lawful same-sex marriages, could not meet that test. DOJ announced that it would no longer defend Section 3 in pending litigation, notifying Congress to that effect by a letter to House Speaker John Boehner, who then secured on a party-line vote the approval of the "legal advisory group" constituted from the Republican and Democratic leaders in the House to hire former Solicitor General Paul Clement to intervene on behalf of the House of Representatives to defend Section 3 in pending litigation.
Subsequently, a bankruptcy court in California ruled that Section 3 was unconstitutional if construed to prevent legally married same-sex couples from filing joint bankruptcy petitions, and the House legal advisory group indicated it would not intervene in the case, leading DOJ to announce that the U.S. Trustee would no longer oppose joint bankruptcy filings by married same-sex couples. And, perhaps more significantly — at least in the view of the 9th Circuit Log Cabin panel — DOJ filed a brief on July 1 in one of the pending DOMA challenges, the Golinski case in the Northern District of California, affirmatively arguing that Section 3 was unconstitutional on equal protection grounds.
On July 6, the 9th Circuit panel lifted the stay of the injunction in Long Cabin Republicans v. U.S., allowing Judge Phillips world-wide injunction against enforcement of DADT go into effect. The court cited as justification for its action the failure of DOJ to argue in its brief that Section 654 was constitutional, and the signals from the president and DoD that the process leading to certification under the Repeal Act was almost completed. The court said that "the circumstances and balance of hardships have changed" and it was no longer necessary to stay the injunction. A few days later, the Court sent an Order to the parties asking whether the case should be dismissed as moot, or whether DOJ intended to defend Section 654 or to invite Congress to intervene in order to do so.
The July 14 filings by DOJ argue that the court has misunderstood its position. In effect, DOJ says that Congress's action in repealing DADT in December made the original case moot. At the same time, however, since Log Cabin Republicans are seeking prospective injunctive relief, DOJ argues that the question becomes whether the current process leading to certification is constitutional. That is, DOJ says, in the Repeal Act, Congress turned Section 654 from a permanent provision of federal law into a temporary transitional measure. DOJ argues that the question of the constitutionality of Section 654 thus changes, and now the question is whether it is unconstitutional for Congress to require it to remain in effect until Congress receives the written certification that it can be repealed without endangering national security by undermining military effectiveness. That, argues DOJ, is a different question than the one decided by Judge Phillips.
DOJ also argues, as one would expect them to do, that judicial deference to the political branches and military leaders is at its height in cases such as this. Thus, DOJ says, its Golinski brief is not dispositive of the constitutional question, because Golinski is a civilian personnel policy case, not a military case, and the deference issues are different. DOJ asks for temporary relief to be issued today (July 15) while the 9th Circuit panel ponders the argument, and urges that DADT be put back into effect temporarily as the process continues to certification.
One of the DOJ's arguments is that the Repeal Act represents a congressional judgment that the way to end DADT without harming military effectiveness is to create a gradual process incorporating training and to give the top military leadership – the Secretary and the Chairman of the Joint Chiefs – control over termination through the certification process, so this can be seen as a deliberative military judgment rather than compliance with a court order. The argument is that smooth transition to a post-DADT military is more likely to be accomplished if the military "owns" the process and is not complying with an order of the civilian courts. An affidavit by the military officer in charge of the implementation process, Major General Steven A. Hummer, makes this point.
DOJ also submitted a letter brief to the court in response to the court's order earlier this week asking whether the case should be dismissed as moot. This letter articulates the argument that the original case was mooted by the Repeal Act, but the current appeal will not be moot until certification takes place. The letter argues that the process should be allowed to unfold to its conclusion, referring to Gen. Hummer's affidavit assertion that certification should be coming in late July or early August and there is no reason to abruptly truncate the process.
From the press release they issued in response to these developments, one expects that Log Cabin will file a brief arguing that there is now no necessity to keep the DADT policy in place. DoD has basically stopped discharging people anyway, the training process is almost complete, and certification looms. The Pentagon's first response to lifting of the stay was to comply, not to appeal that order. It took a few days to turn around and now seek to revive the stay. (In fairness, one must note that the 9th Circuit's July 11 order asking DOJ whether the case was moot is the likely precipitant for the July 14 Emergency Motion….)
In any event, it is clear that DADT is moving out the door, but less clear whether it is gone now or will be gone soon.
However, the letter submitted yesterday makes a point that is likely to raise some issue for parties in other pending litigation. The letter asserts that the appropriate procedure for the 9th Circuit to follow upon a finding of mootness would be to vacate Judge Phillips' decision and order dismissal of the complaint. How would this affect potential claims of servicemembers who were discharged under the policy, or the litigation over attempts by DoD to recover scholarship money that went to ROTC participants or those who received training in the service academies and were subsequently discharged under the policy. A judgement that the policy was unconstitutional is crucial to those cases. Vacating Judge Phillips' ruling will not be helpful to those litigants.