Playing DADT bingo

by on July 17, 2011  •  In Military

When the Ninth Circuit motions panel reinstated the injunction against enforcement of DADT in Log Cabin Republicans v. Panetta, it looked like the judiciary might end the policy before the DADT Repeal Act would.  Now that the Justice Department has persuaded the same court to stay the injunction again (with the caveat that no investigations or discharge proceedings may occur), my hunch is that the legislative/executive branch, with its process of training and preparation for repeal, will get to yell bingo. The Pentagon is saying that certification that the military is ready for repal will occur by late July or early August; final repeal takes effect 60 days later. One way or another, DADT will soon be history.  

The current state of play in the litigation is that the briefing on the motion for reconsideration of lifting the stay will continue until Friday. I would bet that the next ruling is issued very soon after all the briefs are filed, perhaps even late Friday. 

The motion for reconsideration filed by Justice also responded to an order from the Ninth Circuit panel who will hear oral argument on the merits September 1 (a different group than the motions panel). That court had ordered DoJ to state explicitly whether it was defending the constitutionality of DADT. DoJ responded that Congress had amended the statute, and that the only relevant question for prospective relief was whether DADT, as amended by the Repeal Act, was constitutional.  And, DoJ argued, it clearly is, both because courts should always defer to the military and because the Defense Department is in the process of following its painstakingly prudent repeal process. 

The brief also noted that the Department's argument in the Golinski case that sexual orientation classifications should be subject to heightened scrutiny does not apply in the military context. As it had stated in its brief in Golinski (FN 4), DoJ reserved the issue of standard of review when the challenge was to a mililary policy: "classifications in the military context present different questions than classifications in the civilian context."  

So, the roller coaster continues. But since the end of DADT is not in doubt, why worry about how we get there? 

One concern is that if the case becomes moot, the Court of Appeals will vacate or "erase" the district court decision. Plaintiffs and amici will stress to the court the importance of not doing that because the lower court decision, based on a full trial, contains important findings of fact and conclusions of law that could be useful in non-DADT cases. 

The second concern is that the plaintiffs in the LCR case sought relief beyond simply the end of the policy, and if the case ends when DADT ends, the court will not reach those aspects of the claim.   Still pending are issues of full relief for persons discharged in the past, payment of their benefits and bonuses, etc etc that flow directly from DADT. See the Lambda Legal amicus brief.

 Lastly, the role of the courts will be crucial for the future questions related to equal treatment for lgb servicemembers such as those described in this New York Times report. Questions about, for example, spousal benefits and housing for married gay couples will create the next round of litigation. Those issues were not raised in the LCR complaint, but they are just around the corner. And they will send the courts back to consideration of what the standard of review should be for sexual orientation classifications, specificallly in the context of military policy.



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