Ninth Circuit tells DoJ to fish or cut bait on DADT + Added commentary

by on July 11, 2011  •  In Military

In an order today, the Ninth Circuit panel assigned to hear Log Cabin Republicans v. Panetta directed the Department of Justice to declare whether it is going to defend the constitutionality of DADT and, if not, suggested that the court will either invite an amicus – probably Congress – to serve that function or will declare the case to be moot. 

After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654, which provides for the policy concerning homosexuality in the armed forces (i.e., Don’t Ask, Don’t Tell). The Government argues only that the Don’t Ask, Don’t Tell Repeal Act of 2010 (“Repeal Act”), Pub. L. No. 111-321, 124 Stat. 3515 (2010), is constitutional. But the district court found § 654, not the Repeal Act, unconstitutional. And § 654 remains the law of the land today, even though it is scheduled to be repealed once certain conditions are satisfied, which, as of the date of this order, has apparently not yet occurred.

Therefore, the central issue this court must address on appeal is whether the district court properly held that § 654 is unconstitutional. No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed. The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C § 530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011).

If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g). In light of the foregoing, (1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654; (2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2); (3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied. The responses to this order shall take the form of letters to the court no longer than ten pages or 2800 words, and shall be submitted within ten days of the date of this order… 

 UPDATED – Commentary on this order by Jon Davidson, Legal Director of Lambda Legal, after the jump.

By Jon Davidson, posted at Americablog Gay:

… It appears that the Ninth Circuit panel that will be hearing argument the week of August 28th wants to reach the constitutionality of the Don't Ask, Don't Tell law and has seen through the government's effort to deflect attention from that question to whether the DADT Repeal Act is a reasonable way of dismantling the policy. If the government isn't going to challenge the district court ruling that DADT is unconstitutional, then the court appears inclined to get someone else to argue in favor of the measure's constitutionality so that it has actual adversity between the presentations on that issue. I doubt either house of Congress (or even the BLAG) will seek to intervene in this one; BLAG has their hands more than full with DOMA. Depending on how quickly the Ninth Circuit acts, this could lead to a ruling on DADT's constitutionality before the repeal goes into effect (which doesn't happen until 60 days after certification, which STILL hasn't happened). That ruling could include critical decisions on questions such as the level of scrutiny due to sexual orientation discrimination, which would have an impact on many cases, ranging from the multiple DOMA challenges in the Ninth Circuit to Perry to other cases. … So, I do see that aspect of the order as vitally important.

At the same time, the mootness issue is also quite significant as well, for two reasons. First, if the Ninth Circuit concludes that the end of the DADT policy does not make the case moot, it is likely to issue a ruling on these issues even if it can't get its opinion out before 60 days after certification. Second, as detailed in Lambda Legal's amicus brief to the Ninth Circuit, there are many ongoing impacts of the DADT law that the Repeal Act has not addressed. While the Department of Defense could address them, it sill has not done so. Assuming DADT is held unconstitutional, these include whether those discharged in the past pursuant to that policy under less than honorable circumstances (or with a notation in their records about the grounds for discharge) should have their discharge upgraded and/or records corrected; whether proceedings to recoup enlistment bonuses and tuition payments from those not allowed to continue their service because of the unconstitutional application of DADT must be terminated; and whether those discharged pursuant to an unconstitutional policy are entitled to the same benefits they would be receiving if they had been allowed to serve out their terms (including pensions that may not have vested due to their discharge). The Ninth Circuit could issue a decision that impacts all of these questions, which are incredibly important to thousands of veterans discharged under DADT


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