Daniel Woods

“Don’t Ask, Don’t Tell” will be off the books September 20, when a 60-day review period has ticked away following certification of military readiness to implement repeal. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

Log Cabin Republicans’ attorney Dan Woods argued as much on September 1, when he urged a three-judge panel of the 9th Circuit U.S. Court of Appeals to uphold a district court ruling that found “Don’t Ask, Don’t Tell” unconstitutional.

Woods noted that, before passage of Don’t Ask, Don’t Tell (DADT) in 1993, there was a military regulation—not a federal law—that banned “homosexuals” from the military.

“That ban had existed for decades,” noted Woods.

And if the 9th Circuit panel does not affirm the lower court decision, said Woods, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

Since the repeal was passed by Congress last December, he noted, there is a new Congress, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,” responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The situation is that the Department of Justice is urging the panel rule the Log Cabin Republicans v. U.S. lawsuit moot. That lawsuit –which won a powerful decision from U.S. District Court Judge Virginia Phillips last September—was largely responsible for prompting Congress to finally pass a bill repealing DADT in December. Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal of the decision to the 9th Circuit, military officials began warning Congress that it seemed inevitable the courts would strike down the law. The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot Judge Phillips’ decision. He said the government would submit a motion after September 20 to vacate the ruling and have the case sent back to the district court for dismissal. He said that, if the 9th Circuit does issue a ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

“The point I’m trying to make,” said Log Cabin’s attorney Woods, “is that the government has no constraints on it if this case is determined to be moot and the judgment is vacated, as counsel for the government argues. Then we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional. This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again.”

Woods urged the panel to affirm Judge Phillips’ decision, saying it would remedy “collateral consequences” caused by DADT. Among those concerns, he said, were loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries. and requirement that discharged servicemembers pay back their student loans.

Whitaker said individuals discharged under DADT could seek these remedies through individual lawsuits, but Woods urged the panel that it, “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.”

Whitaker contended the decision in Log Cabin v. U.S. is needed to rectify the discharges of servicemembers kicked out under DADT.

“We’ve made clear that [DADT] discharge codes will not be respected once repeal becomes effective,” said Whitaker. “And even today, your honor, the Department of Defense is accepting and processing applications by gay and lesbian individuals to serve in the armed forces, including by gay and lesbian individuals who were previously discharged under Don’t Ask Don’t Tell.”

He said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.”

“This case is and always has been about ending Don’t Ask Don’t Tell,” said Whitaker. “And so, once Don’t Ask Don’t Tell has been ended, in 19 days, that is the end of this case and there’s nothing left for the court to do.”

Judge Silverman seemed most inclined to agree with Whitaker’s argument, but for political reasons. In questioning Woods, Silverman said the public has an interest in judges overturning unconstitutional laws, “but it also seems to me the public has an interest in not having the courts reach out to decide controversial issues that have been resolved by the political branches.”

“We hear a lot about judicial activism, especially in the 9th Circuit, and the virtues of judicial restraint,” said Silverman. “And I just wonder if the public interest there isn’t a public interest in letting this repeal run its course, take effect, partly because it legitimizes repeal.”

But Woods reminded the judge that “the case is what prompted repeal of the statute.”

“If you vacate the judgment and take away the case,” said Woods, “the government is unconstrained and simply might do it again. History might repeat itself.”