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Gay rights victory to vanish

One of the modern gay rights movement’s most significant courtroom victories — a California judge’s ruling last year striking down the military’s ban on gays and lesbians — is about to vanish from the federal record books, as if it had never happened.  It will do so because the Ninth Circuit Court refused on Wednesday to reconsider a ruling that erased the decision, and everything about it, and barred any gay rights lawyer from ever trying to use it to help in any other case.   The brief order by the Circuit Court, denying rehearing by a three-judge panel, also noted that no judge eligible to vote even called for a tally on reconsideration by the full en banc court.  This was a final legal victory for the Obama Administration in a case that at times had been bitterly contested.

The practical effect of the ruling is two-fold: it does not disturb the action of Congress and the Pentagon to carry out the actual repeal of the so-called “don’t ask, don’t tell” policy (the repeal took effect September 20), and it eliminated as a precedent of any kind the decision against the ban in September last year by U.S. District Judge Virginia A. Phillips of Riverside, Calif.   The denial of further review by the panel and by the full Circuit Court also left intact a blistering critique by one of the three judges of any jurist who would use a 2003 gay rights ruling by the Supreme Court — Lawrence v. Texas — as the basis for recognizing new rights for homosexuals.  (Circuit Judge Diarmuid F. O’Scannlain’s advice to his colleagues — a “guidepost for responsible decision-making,” he called it — was described in this post at the time it was issued in late September.)

The case, Log Cabin Republicans v. U.S. (Circuit dockets 10-56634 and 10-56813), was under review in the Ninth Circuit when the Obama Administration, responding to the repeal of the policy against gays and lesbians serving openly in the military services, asked the panel to declare the case moot and to vacate Judge Phillips’ decision against the ban.  The panel did so on September 29.  It had been told that lawyers expected to try to build on the case as a precedent, but the panel bluntly said neither they nor anyone else could rely upon what Judge Phillips had done.

The panel said: “We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path for any future litigation.  Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.”

Reacting, lawyers for the advocacy group, Log Cabin Republicans, in mid-October sought panel or en banc rehearing.   First, the lawyers contended that their case was not moot, and then argued that the panel had acted without even considering the legal arguments the group had made on that point.

The plea also challenged the panel’s “sweeping, and unnecessary, vacatur order,” saying it “eradicates over a dozen thoughtful district court rulings, including factual findings after a full bench trial.  It not only condemns any future servicemember who may claim injury from an unconstitutional discharge order under [the policy] to re-litigate the entire factual basis for this lawsuit, at an enormous cost of judicial resources, but it calls into public question the very validity of the proceedings below, which were held and concluded before the Repeal Act was enacted.”

When a federal court stands up to “the combined might of the other branches,” that filing contended, “it should ensure that its own authority is at its maximum, to show that it gave this matter the sustained attention it merits.”

Among other arguments, the Log Cabin Republicans’ counsel contended that their lawsuit had prodded President Obama and Pentagon leaders to move more rapidly to implement the repeal law.

With the case declared moot, the counsel contended, the Pentagon and Congress were left with nothing to bar them from re-instituting a new limit of military service by gays and lesbians.   Moreover, it argued, servicemembers who had been discharged because of the policy were continuing to suffer adverse consequences from the policy.

Their filing insisted that they were not asking the Circuit Court panel to rule that Judge Phillips’ ruling actually could be used as an argument in future cases growing out of the policy, but rather to leave that to federal trial judges when new cases arose.  Instead, they argued, what the panel did was to create “the fiction that this case never existed, that the matter was never tried, and that  judgment that DADT is unconstitutional was never entered.   It especially goes too far in its imperious directive that neither Log
Cabin, nor anyone else, may ever in future use the district court’s rulings in any fashion whatever.  To thus sow the fields of law with salt is unnecessary and gratuitous.”

Under federal court rules, it was up to the Circuit panel to decide whether to ask the other side — here, the Pentagon — to respond to the rehearing request.   The panel chose not to do so, and took no action until it issued its order Wednesday bringing the case to a complete end.

Recommended Citation: Lyle Denniston, Gay rights victory to vanish, SCOTUSblog (Nov. 9, 2011, 4:07 PM),