Justice Department's Brief in 9th Circuit Military Appeal Tries to Refocus the Case

On February 25, the Department of Justice (DOJ) filed its brief supporting its appeal of U.S. District Judge Virginia Phillips' ruling last year in Log Cabin Republicans v. United States, 716 F.Supp.2d 884 (C.D.Cal. 2010), in which she held that the "Don't Ask, Don't Tell" military policy, codified in 10 U.S.C. § 654, was facially unconstitutional and should be immediately enjoined from enforcement on a worldwide basis.  DOJ had previously sought to forestall having to file a brief, in light of the December enactment of the "Don't Ask, Don't Tell Repeal Act of 2010" and the impending demise of the policy, but a motions panel of the 9th Circuit rejected the request to hold the appeal "in abeyance" pending implementation of the new statute, and ordered that DOJ file its principal brief in support of the appeal by February 25.

In light of subsequent events, the DOJ brief attempts to refocus the substantive component of the appeal.  Originally, of course, DOJ was appealing not just on the issues of LCR's standing to bring the case and the extent of the district court's remedial authority, but also on the merits of the ruling that the DADT policy is unconstitutional.  Technically, the issues raised in the filing of the appeal are what DOJ should be addressing in this brief.  Instead, in a somewhat unusual move, the brief seeks to change the question for the court on the merits.  Almost as if conceding that the district court's ruling on the merits has been superseded by events, DOJ reframes the question as follows:  "Whether Congress lacked the constitutional authority to establish an orderly process for repeal of § 654, while keeping the former statute in place and maintaining the status quo during the transition in policy."

That, of course, is a different question from the one raised on appeal last fall, but the refocus seems consistent with the announcement last week that DOJ now concedes that equal protection claims concerning sexual orientation require heightened scrutiny.  In the Log Cabin Republicans case, the district court had dismissed the equal protection claim as required by 9th Circuit precedents that had upheld the DADT policy in prior litigation under that legal theory, so the case proceeded only on due process and free speech grounds.  Such a concession, of course, would suggest that the district court's dismissal of the equal protection claim, which is being cross-appealed by Log Cabin Republicans, should be reconsidered as part of the appeal and that DOJ would not contest a demand for heightened scrutiny on that claim by LCR.

But the easiest way for the 9th Circuit to put off having to decide anything about the merits of this case, as to which mootness is looming, would be for it to find that LCR lacked standing when it filed its complaint back in 2004,shortly after the Supreme Court's decision in Lawrence v. Texas, and a large portion of DOJ's brief is devoted to arguing -- rather persuasively -- that the district court's ruling on standing was mistaken.  In order to have organizational standing to contest the constitutionality of a statute, an entity must have members whose constitutional rights are threatened by enforcement of the statute.  DOJ persuasively argues that at the time LCR filed its initial complaint in the case, it had no members upon whose individual standing it could rely to claim organizational standing -- i.e., no members who were then active duty military personnel threatened by enforcement of the policy.  LCR sought to avoid this problem by conferring "honorary membership" on Alexander Nicholson, director of Servicemembers United, an organization devoted to ending the policy, but DOJ persuasively argues that Nicholson could not provide such standing because at the time he was no longer a member of the military and by all accounts was not a Republican, and therefore was not qualified for membership in LCR according to the membership requirements in its by-laws.

LCR sought to cure this problem prior to filing an amended complaint by recruiting an active-duty military member to join the organization on an anonymous basis, but DOJ argues that such an honorary "hypothetical" member could not serve to establish standing without credible allegations that the individual in question was threatened with enforcement of DADT.  Here DOJ's argument loses persuasiveness, since the essence of the policy is that forfeiting anonymity would immediately subject the "John Doe" plaintiff to discharge.  DOJ argues that past challenges to the policy have not proceeded anonymously, but this argument overlooks two things: those past individual challenges all involved servicemembers who had been "outed" in some respect, and in fact the largest "test case" challenge brought jointly by ACLU and Lambda Legal in the 2nd Circuit was brought on behalf ofa group of anonymous servicemembers, who were identified as Able, Baker, Charlie, etc., for precisely this reason.  On firmer ground, DOJ urges that because the "John Doe" member was not recruited to join LCR until shortly before the amended complaint was filed, LCR could not establish standing because that issue most be determined as of the date of filing of their original complaint, at which time they did not know of any active duty servicemembers in their organization.  DOJ also notes that there is no allegation that the "John Doe" member is still serving or has maintained his membership in LCR, which would be required under the theory that standing must be maintained throughout the case.

In other words, if the 9th Circuit panel is looking for a way out to avoid having to struggle with the evolving state of the law concerning anti-gay government policies, they can grab on to one or more of the technical arguments on standing advanced by DOJ and order that the district court's decision be vacated and the case dismissed on that basis.

Alternatively, of course, although this strikes me as somewhat irregular, they could accept DOJ's attempt to reposition the merits question and consider solely whether the current situation, in which Congress has passed the Repeal Act and implementation is proceeding with a likely culmination before the end of this year, is sufficient to meet any constitutional requirements.  As to this, DOJ notes that the motion panel that granted the stay apparently sympathized with DOJ's argument that an orderly repeal process for the policy was necessary to avoid undue disruption of the military, and that this consideration, given the customary deference to the political branches on issues of military policy, counseled against affirming the district court's injunction.

I expect that LCR's responding brief will vociferously protest DOJ's attempt to reframe the question before the court, as not having been litigated below (of course, it couldn't have been, since the Repeal Act wasn't passed until months after the district court ruled), and of course they will reiterate the district court's affirmative ruling on standing and on the grounds for injunctive relief.  As to this last point, DOJ insists that because the case was not certified as a class action on behalf of all LGB people currently serving in the military, the only proper relief would be narrowly focused on protecting "John Doe" and forbidding the DADT policy from being used to block Nicholson from re-enlisting and serving again if he seeks to do so.  If the 9th Circuit were to buy that argument, the case effectively goes away, since by the time the 9th Circuit would get around to ruling, the entire case would likely be mooted in any event by implementation of the Repeal Act.

It's all a tangled mess, and it actually makes little sense for the 9th Circuit to schedule oral argument as long as the Defense Department seems to be moving expeditiously towards completing its transitional activities and joining the President in certifying the necessary statements to Congress.  The DOJ brief alleges that this process is well underway, new policies have been devised and training is soon to begin, with an intent to complete the process in a matter of months, not years. The appeal shouldn't be dismissed, and the district court's decision shouldn't be vacated for now, since holding this sword over the Defense Department may help to ensure the efficient completing of the task.  (And one suspects that Judge Phillips' provocative world-wide immediate injunction might have been calculated to help move things along, with an expectation that it would not be allowed by the 9th Circuit to go into effect but might aid those trying to persuade Congress to repeal the policy.  Certainly, Secretary Gates made good use of the threat of precipitate court action as a reason to pass the Repeal Act.)  In any event, repeal seems imminent, making this case a bit of a side show.