SAN FRANCISCO — A three-judge panel of the 9th U.S. Circuit Court of Appeals on Thursday dismissed a seven year old lawsuit brought by the Log Cabin Republicans Thursday, refusing to determine the constitutionality of the military’s now-repealed “Don’t Ask, Don’t Tell” policy that barred gays and lesbians from serving openly in the U.S. military.
The appellate court also dismissed U.S. District Judge Virginia Phillips year-old ruling that the policy was unconstitutional.
The lead attorney for the Log Cabin Republicans, Dan Woods, said he would ask the full 9th Circuit to review the panel’s decision. Woods argued that Phillip’s ruling should remain in effect, as there was the potential that a future presidential administration, in conjunction with congressional actions, could re-introduce a ban on openly gay service members.
The three judges strongly disagreed in their Thursday opinion, saying the case is moot because there is nothing left to challenge regarding the policy enacted as section 654.
“This suit became moot when the repeal of section 654 took effect on Sept. 20,” the ruling said. “If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654.”
“We cannot say with virtual certainty that the Congress that passed the Repeal Act — or a future Congress whose composition, agenda, and circumstances we cannot know — will reenact don’t ask, don’t tell,” the judges said. “We can only speculate, and our speculation cannot breathe life into this case.”
Associated Press, via ABC News
Log Cabin Republicans Executive Director R. Clarke Cooper expressed his unhappiness with the 9th Circuit’s ruling, noting that in his opinion, the favorable ruling his group obtained in the lower court played a major role in persuading the Obama administration and Democratic congressional leadership to repeal “Don’t Ask, Don’t Tell,” last year.
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“Log Cabin Republicans v. United States said more than ‘don’t ask, don’t tell’ should be repealed — it stood for the fundamental constitutional rights of service members not to be discriminated against by the nation they serve,” Cooper said.
Jon Davidson, Legal Director at Lambda Legal, said in a statement that he was “deeply disappointed that the Ninth Circuit chose to erase the factual findings and legal conclusions reached after years of litigation and a lengthy trial that thousands upon thousands of lesbian, gay, and bisexual service members’ constitutional rights were violated for 18 years by ‘Don’t Ask, Don’t Tell,'”
“The end of anti-gay discrimination by the military was required by the Constitution, not just by political considerations.”
“It is wrong to require the more than 14,000 service members who were unconstitutionally discharged to start from square one in obtaining the military benefits they lost, getting their military records corrected, and fighting government efforts to collect educational loans they were prevented from working off, among other harms,” Davidson added.
“The work to end the damage done by ‘Don’t Ask, Don’t Tell’ is far from done and we call on the administration to provide justice to those our country has wronged.”
One of the three panelists, Judge Diarmuid O’Scannlain, criticized the lower court judge who invalidated the policy last year, accusing Phillips of willfully failing “to apply established law” so she could issue a ruling “that invalidated a considered congressional policy and imposed a wholly novel view of constitutional liberty on the entire United States.”
