DADT Case Gets Appeal Hearing


Thursday saw the Obama administration go before the 9th Circuit Court of Appeals to argue why a court case against the federal government over the “Don’t Ask, Don’t Tell” (DADT) policy, which bans gay and lesbian military personnel from serving openly, should be vacated. Lawyers on behalf of the Log Cabin Republicans argued that the lawsuit is still very necessary despite an imminent end to the ban.

The case, Log Cabin Republicans v United States, already saw U.S. District Judge Virginia A. Phillips rule that the ban on openly gay service personnel is harmful and unconstitutional. As such, Judge Phillips issued a world wide injunction on DADT enforcement. The government appealed and had that injunction stayed by the 9th Circuit pending a hearing.

As such, the two sides in this case went back before a three judge panel of the 9th Circuit on Thursday for oral arguments.

From the Los Angeles Times:

Government lawyers urged an appeals court Thursday to strike down a ruling last year that the law banning gays from serving in the military violated the service members’ constitutional rights.

The ”don’t ask, don’t tell” policy will be repealed Sept. 20, rendering the ruling by U.S. District Judge Virginia A. Phillips “moot,” Justice Department lawyer Henry Whitaker argued before a panel of the U.S. 9th Circuit Court of Appeals.

But the Log Cabin Republicans, gay rights advocates who sued over the 18-year-old policy, urged the judges to uphold Phillips’ ruling, arguing that courts will need to rely on that precedent in handling lawsuits expected from those illegally discharged.

“This case took seven years to get here today. It would be inappropriate to have people go through all that again,” Dan Woods, the attorney representing the Log Cabin Republicans, said of the gay service members whose suit against the policy led to Phillips’ landmark ruling a year ago.

As mentioned above, the federal government is arguing that because Congress successfully passed a repeal of the policy, Judge Phillips’ ruling is now no longer needed and should be struck down. Lawyers acting on behalf of the government also warned that acting beyond the life of the statute, that is to say keeping the DADT lawsuit going after DADT is repealed, may run the risk of “judicial activism,” something Judge Barry G. Silverman noted when he asked if it was in the public interest to dismiss this current case and allow for Plaintiffs to bring about  new and specific challenges.

Lawyers acting on behalf of the Log Cabin Republicans argued that while they agree the portion of the ruling dealing with discharges is now no longer of concern, the ruling has broader scope and establishes a precedent about the unconstitutional nature of DADT, paving the way for DADT-discharged soldiers to seek compensation because they are still denied military benefits, equal treatment while in the military, and a fast track back into the army. They also note that the legislative repeal contained no form of nondiscrimination language, meaning that while overt anti-gay sentiment likely won’t be tolerated in the military, it may still present itself in more subtle ways and leave soldiers without adequate recourse.

In addition to this, Log Cabin Republican lawyers argued, there is a very real chance that Congress could enact another ban on openly gay service personnel, or to quote from the Log Cabin Republican press release issued ahead of Thursday’s hearing: “It is particularly important that this case, and the principle established by this case, remains intact because there is a real threat that it could disappear. Several leading Republican presidential candidates have gone on record promising to ‘repeal the repeal.’ The military could also bypass Congress and enact new regulations, and a new Congress could re-enact DADT. ”

The three judge appeal panel gave no indication of how quickly they may rule, though a wait of some months is not unusual.

It is thought that “Don’t Ask, Don’t Tell” led to the discharging of around 13,000 soldiers and sailors since the law was enacted by the Clinton administration in 1993. Certain discharged officers have already indicated that, based on the precedent set in this case, they very well may pursue a class-action lawsuit to find remedy for the military benefits they are disallowed and, some of them, to return to the military at their previous rank or the rank they would have achieved had their careers not been cut short by the DADT policy.

After Congress passed the repeal legislation last year and the Obama administration together with military service chiefs certified military readiness for the repeal, a sixty day period was started before the repeal would come into effect. That period ends September 20 when the military will officially retire its ban on openly gay service personnel.

Related Reading:

Gay Solider on How Air Force Band Video Outed Him

Bachmann Would ‘Probably’ Bring Back DADT

SLDN Releases Post-DADT Service Guide


Photo used under the Creative Commons Attribution License with thanks to U.S. Army Photostream.


Martha Eberle
Martha Eberle7 years ago

It took careful reading to determine who were the good guys in this, and who were the bad guys, ..... but finally, I say, give it a rest now! DADT is repealed on Sept. 20 .... FINALLY. Let's start pondering some other real PROBLEMS in our society. Not saying repeal is unimportant, but we have been beating this horse to death for ages; society agrees all Americans deserve equal rights, so let's be done with this, and start in on the problem of JOBS for PEOPLE.

Fa'izah J. A.
Jauharah Andrews7 years ago

If gays and lesbians want to serve in the military, they should be allowed to. I don't know why the military is in such an uproar over this. They can't enforce the rules prohibiting sexual harassment so how did they manage to enforce DADT for so long?

sandra m.
Past Member 7 years ago

I'm with you Lilithe.....
DADT needs to's implications are disturbing

Lilithe Magdalene

This is one time I am rooting for the Republicans - the Log Cabin folk are making sure this discrimination is eliminated through and through, and already discharged service members have the opportunity to seek recompense. If the gov't and the military had it's way, it would say "well, we repealed it, so let it go". No, they are NOT letting it go, seeing it discredited through and through, setting legal precedent, and assuring recourse for former service member discharged under DADT to seek damages for lost careers and pensions. Go get 'em boys!!

Lynne B.
Lynne Buckley7 years ago

DADT is garbage and should be in the trash can.

Bonnie S. DADT didn't stop the military from having problems. It shows America to be outdated and bigoted, seeing a lot of other countries have gays serving openly in their military. The world didn't end and their military never fell into complete disarray. You know, treating people like educated adults and expecting them to behave like military professionals is the best way to go. Most of the soldiers already know they're working with someone who is gay. Many of them have written letters telling people like you to get over your bigotry because they're alive because of that 'gay soldier'.
I respect anyone who is prepared to serve their country and protect me by doing so.

Karen & Edward O.
Karen and Ed O7 years ago

"The government is merely a servant --- merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn't. Its function is to obey orders, not originate them....."
-----------------------------------Mark Twain

William Y.
William Y7 years ago

Well considering that DADT should never have been implemented. it was a stop gap to then issue of someone outing a gay soldier. The point was that if the soldier is gay then no one should ask a soldier his/her sexual pref. point, it doesn't work. There never should have been any discrimination against gay soldiers at all. There is no difference in the performance of soldiers no matter what their preference was. It was all religious hype and idiotic stereotyping.
Those who were put out because of this insanity should have their benefits restored and reinstated in the military if they so desire.

Bonnie S.
Bonnie Sweitzer7 years ago

Shooting ourselves in the foot. DADT kept away many problems for our military.

Lloyd A.
Doug Alley7 years ago

Let the right wingers have their last cry and then get DADT off the books and drag the USA into the 21st century, kicking and screaming, but let the cry baby Republicans have their last whine, so we can get it over with and their lawyers can't pull something later on. It will all be straightened out in the end, it is just that the wheels of Democracy and Justice turn very slowly. There are much bigger issues that need to be worked on by those in both parties.

Penny C.
penny C7 years ago