Ninth Circuit panel unanimously finds challenge to DADT moot; lower court opinion vacated

by on September 29, 2011  •  In Military

A Ninth Circuit panel shot down attempts to keep Log Cabin Republicans v. Panetta alive, ruling that the repeal of DADT has mooted the case challenging the law's constitutionality. This means that service members who have claims stemming from past discharges, such as those regarding benefits or re-enlistment, will have to bring separate cases. In and of itself, this is not of great legal significance; at least one group already has such a case pending in the Court of Federal Claims, and others can be filed in the future (depending in part on the outcome in the Court of Claims case).

More stinging was the Ninth Circuit's decision to vacate the District Court opinion issued in 2010 that had found DADT to be unconstitutional. The Court of Appeals order to vacate erases the trial court decision, so that as a matter of law, it is as if there never was a federal court decision finding DADT to be unconstitutional. This also means that the earlier decision is unuseable as precedent when individuals seek relief for past discharges.  No mincing of words here:

Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Having (emphatically) found the case moot, the panel did not reach the question of whether DADT was constitutional. One member did, however. Judge O'Scannlain, known as a conservative member of the court, filed a separate opinion declaring that he would uphold the constitutionality of DADT. Judge O'Scannlain attacked the District Court's reasoning that DADT burdened a fundamental right to private sexual conduct recognized in Lawrence v. Texas.

Lawrence does not establish that a member of the armed forces has a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military…Lawrence did not establish any fundamental right – let alone any right relevant to the Don't Ask Don't Tell policy in the military.

Judge O'Scannlain then went on to accuse District Court Judge Virginia Phillips of having ignored established law in reaching her decision. In other words, even though the case was already and unanimously found to be moot, he went out of his way not only to blast the plaintiff's argument but also to call into question the trial judge's integrity. That's intense.

After the decision came down, lawyers for LCR issued a statement saying that they would seek rehearing en banc.


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