Brody's Notes... Ninth Circuit Court Dismisses 7 Year Old DADT Lawsuit

By Brody Levesque | SAN FRANCISCO, CALIFORNIA -- A three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed a seven year old lawsuit brought by the LGBTQ Log Cabin Republicans Thursday, regarding the constitutionality of the military's now-repealed "don't ask, don't tell" policy. 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, told reporters 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 reintroduce a ban on open service by Gays and lesbians.

According to the Associated Press:

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."

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.

"Log Cabin Republicans v. United States said more than 'don't ask, don't tell' should be repealed — it stood for the fundamental constitutional rights of service members not to be discriminated against by the nation they serve," Cooper said. "This decision by the 9th Circuit denies more than 14,000 discharged gay and lesbian service members an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of service members' rights."

The Associated Press also reported:

One of the three panelists, Judge Diarmuid O'Scannlain, went out of his way in a concurring opinion to dispute that either the U.S. Constitution or the Supreme Court's interpretation of it provided "a member of the armed forces (with) 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."

O'Scannlain also criticized the lower court judge who invalidated "don't ask, don't tell" last year, U.S. District Judge Virginia Phillips. He accused 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."