10-56634 #9

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ID: 7521688 DktEntry: 9-1
Case No. 10-56634
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
LOG CABIN REPUBLICANS, a non-profit corporation, Plaintiff-Appellee, vs. UNITED STATES OF AMERICA; ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA No. CV 04-8425, Honorable Virginia A. Phillips, Judge
MOTION OF APPELLEE LOG CABIN REPUBLICANS TO EXCEED PAGE LIMIT ON RESPONSE TO EMERGENCY MOTION FOR STAY Dan Woods (CA SBN 78638) [email protected] Earle Miller (CA SBN 116864) [email protected] WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, California 90071 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Plaintiff/Appellee Log Cabin Republicans
LOSANGELES 883866 (2K)
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Pursuant to Ninth Circuit Rule 32-2, Appellee, Log Cabin Republicans, respectfully requests leave to file its attached Response to the Governments Emergency Motion for Stay Pending Appeal in excess of the twenty pages allotted by rule for responses to motions. See Fed. R. App. P. 27(d)(2). The judgment that the government seeks to stay enjoins enforcement of the Don't Ask, Don't Tell Act, 10 U.S.C. 654, and is a matter of great public interest and substantial importance. That judgment is supported by an 85-page Memorandum Opinion of the district court, 84 pages of Findings of Fact and Conclusions of Law entered by the district court, a 15-page Order Granting Permanent Injunction, and the record of a six-year litigation history and a twoweek full bench trial. The governments motion to stay does not address any of the procedural history of the action below, or any of the district courts many detailed rulings during the course of the proceedings below. Appellee believes that an adequate exposition of that history, in addition to discussion of the legal issues presented, is important to due consideration of the motion, and is warranted to address these matters fairly and effectively and aid the motions panels consideration of the motion. Appellee therefore requests leave to file the attached response in excess of the provisions of Fed. R. App. P. 27(d)(2).
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Dated: October 25, 2010
Respectfully submitted, WHITE & CASE LLP
By: /s/ Earle Miller Earle Miller 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071 (213) 620-7700 Attorneys for Plaintiff/Appellee Log Cabin Republicans
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CERTIFICATE OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 633 West Fifth Street, Suite 1900, Los Angeles, California 90071. I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 25, 2010. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate system. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on October 25, 2010, at Los Angeles, California.
/s/ Earle Miller Earle Miller
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Case No. 10-56634
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LOG CABIN REPUBLICANS, a non-profit corporation, Plaintiff-Appellee, vs. UNITED STATES OF AMERICA; ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA No. CV 04-8425, Honorable Virginia A. Phillips, Judge
RESPONSE OF APPELLEE LOG CABIN REPUBLICANS TO GOVERNMENTS EMERGENCY MOTION FOR STAY
ORAL ARGUMENT REQUESTED
Dan Woods (CA SBN 78638) [email protected] Earle Miller (CA SBN 116864) [email protected] Aaron A. Kahn (CA SBN 238505) [email protected]
WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, California 90071 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Attorneys for Plaintiff/Appellee Log Cabin Republicans
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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for Log Cabin Republicans certifies that: 1. Log Cabin Republicans is a not-for-profit corporation organized
pursuant to the District of Columbia Nonprofit Corporation Act and section 501(c)(4) of the Internal Revenue Code. 2. Log Cabin Republicans issues no stock and has no parent
corporation. No publicly-held corporation owns ten percent or more of the stock of Log Cabin Republicans. Dated: October 25, 2010 Respectfully submitted, WHITE & CASE LLP
By: /s/ Dan Woods Dan Woods Attorneys for Plaintiff/Appellee Log Cabin Republicans
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TABLE OF CONTENTS I. II. INTRODUCTION .........................................................................................1 BACKGROUND AND PROCEEDINGS BELOW ...................................2 A. B. III. IV. The Extensive Proceedings in the District Court .............................4 Congressional Efforts to Repeal DADT ..........................................15
THE MOTION ADVANCES NEW GROUNDS NOT SUBMITTED TO THE DISTRICT COURT...........................................17 A STAY PENDING APPEAL SHOULD BE DENIED ...........................19 A. B. A Stay Is Not a Matter of Right .......................................................19 Appellants Do Not Meet the Standard for a Stay ..........................22 1. 2. 3. 4. C. Appellants Have Not Shown a Likelihood of Success on the Merits..............................................................23 Appellants Have Not Shown Irreparable Injury if a Stay is Denied .......................................................................30 A Stay Would Cause Substantial Injury to Appellee and to All Homosexual Servicemembers ..............32 The Public Interest Weighs Against a Stay ..........................35
A Stay Would Be More Disruptive of the Status Quo Than Maintaining the Injunction ....................................................36
V.
CONCLUSION ............................................................................................38
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TABLE OF AUTHORITIES Page(s) CASES Able v. United States, 155 F.3d 628 (2d Cir. 1998) ...............................................................................26 ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), affd sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008) ..............................................25 Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash.), affd, 346 F.3d 873 (9th Cir. 2003)..................25 Alliance for the Wild Rockies v. Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149 (9th Cir. Sept. 22, 2010) ......22 Blum v. Caldwell, 446 U.S. 1311 (1980) (Marshall, J., in chambers) .............................................20 Bowen v. Kendrick, 483 U.S. 1304 (1987) .........................................................................................21 Bowers v. Hardwick, 478 U.S. 186 (1986)..............................................................................................3 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ............................................................................25 Coalition for Econ. Equity v. Wilson, 122 F.3d 718 (9th Cir. 1997) ..............................................................................21 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008).................................................................................26 Edwards v. Hope Medical Group, 512 U.S. 1301 (1994) (Scalia, J., in chambers)..................................................20 Elrod v. Burns, 427 U.S. 347 (1976)............................................................................................33
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Golden Gate Rest. Assn v. City & County of San Francisco, 512 F.3d 1112 (9th Cir. 2008) .....................................................................passim Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) ............................................................25 Hilton v. Braunskill, 481 U.S. 770 (1987)............................................................................................22 Holmes v. Cal. Army Natl Guard, 124 F.3d 1126 (9th Cir. 1997) ......................................................................26, 30 Lawrence v. Texas, 539 U.S. 558 (2003)..........................................................................................2, 3 Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) ............................................................................22 Nelson v. Natl Aeronautics & Space Admin. (Nelson II), 530 F.3d 865 (9th Cir. 2008), cert. granted on other grounds, 130 S. Ct. 1755 (March 8, 2010) ..................................................................27, 33 New Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (Rehnquist, J., in chambers) ...........................................20 Nken v. Holder, 129 S. Ct. 1749 (2009)..................................................................................19, 20 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) ......................................................................26, 30 Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997) ............................................................................24 Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) ................................................................................26 Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) (Blackmun, J., in chambers) ...........................................20 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc)..............................................................26
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Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc) ................................................................26 Walters v. Natl Assn of Radiation Survivors, 468 U.S. 1323 (1984) (Rehnquist, J., in chambers) ...........................................21 Weiss v. United States, 510 U.S. 163 (1994)............................................................................................28 Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221 (1971) (denying stay of desegregation order) ............................19 Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008)..........................................................................................22 Witt v. Dept of the Air Force, 527 F.3d 806 (9th Cir. 2008) .......................................................................passim CONSTITUTION First Amendment ..............................................................................................passim Fifth Amendment .............................................................................................4, 5, 11 Fourteenth Amendment ...........................................................................................21 STATUTES 10 U.S.C. 654....................................................................................................1, 37 10 U.S.C. 654(b)(1) ..............................................................................................30 28 U.S.C. 1292(b) ...................................................................................................5 FEDERAL RULES OF APPELLATE PROCEDURE Rule 27-3(a)(4).........................................................................................................18 Rule 30(b)(6)..............................................................................................................9
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I. INTRODUCTION The district courts prohibitory permanent injunction was entered following a full two-week trial on the merits and supported by an 85-page Memorandum Opinion, an 84-page set of Findings of Fact and Conclusions of Law, and a 15page reasoned Order Granting Permanent Injunction. It does not require the appellants to take any affirmative steps, nor does it require them to refrain from taking any of the steps they argue that they must take if they are to avoid irreparable injury. The district courts injunction requires only one thing: that the government discontinue all investigations and discharge proceedings that have been commenced under the Dont Ask, Dont Tell statute, 10 U.S.C. 654, and its implementing regulations (DADT). The government made no showing to the district court, and makes no showing here, either that it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district courts judgment remains in place pending determination of this appeal. By contrast, the district court conducted a careful, extensive analysis of the law, at every stage of the proceedings below. It concluded, after a full trial at which it heard testimony from over 20 witnesses and received over 100 exhibits in evidence, that DADT causes irreparable harm to servicemembers by its very existence and implementation, subjecting them to 1
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investigation and discharge, and chilling their First Amendment rights of free speech and petition, while actually impairing unit cohesion, morale, and discipline the very factors that supposedly justify DADT. The district courts decision was not a political one, nor an instance of judicial activism: it was compelled by the evidence before it, presented at a full trial conducted under our adversarial litigation system. Every day that the government remains free to implement the Dont Ask, Dont Tell policy, American citizens Constitutional rights are violated. The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail. The motion does not meet any of the factors for a stay pending appeal, and it should be denied. II. BACKGROUND AND PROCEEDINGS BELOW Log Cabin brought this challenge to DADT in the wake of the Supreme Courts decision in Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence held that [l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct and established a Constitutional right to engage in private, consensual homosexual conduct. Id. at 562, 578. Recognizing that times can blind us to certain truths and later generations can see that laws 2
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once thought necessary and proper in fact serve only to oppress, id. at 579, Lawrence overruled Bowers v. Hardwick, 478 U.S. 186 (1986). While Log Cabins case was pending below, this Court decided Witt v. Dept of the Air Force, 527 F.3d 806 (9th Cir. 2008). Recognizing the change in the law announced by Lawrence, Witt held that Lawrence controls the scrutiny applied to DADT and concluded it could not reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review. Id. at 816. Witt concluded that Lawrence requires that DADT be subjected to a heightened level of constitutional scrutiny. Id. at 817. The district court arrived at its injunction against this legal backdrop. The court issued the judgment and injunction after six years of litigation, extensive motion briefing, discovery, a two week bench trial, and hundreds of pages of considered rulings. Throughout, the district court carefully analyzed every issue underlying this constitutional challenge. Appellants motion largely ignores the extensive history of the case, but that history is critical to a determination of the motion. It demonstrates that the lower court could arrive at only one conclusion: a permanent injunction is the only avenue to safeguard the constitutional rights of gay and lesbian servicemembers in our armed forces.
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A.
The Extensive Proceedings in the District Court
Log Cabin filed this case on October 12, 2004 seeking declaratory and injunctive relief. In 2006, the district court granted the governments first motion to dismiss, with leave to amend, finding that Log Cabin lacked associational standing. It ordered Log Cabin to identify at least one member of the organization with standing to sue individually. Log Cabins amended complaint specified two members: John Alexander Nicholson and John Doe, who remained anonymous because he is a current member of the military.1 After the reassignment of the case to a different district court judge and several more rounds of briefing and argument, the district court granted in part and denied in part the governments second motion to dismiss. The court found Log Cabin had established standing to bring suit on behalf of current and former homosexual members of the armed forces.2 It dismissed Log Cabins equal protection claim but found that Log Cabin had stated a claim under the First Amendment and, in light of Lawrence and Witt, the Fifth Amendment guarantee of
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Mr. Nicholson was an Army soldier skilled in languages and counter-intelligence discharged under DADT after someone read a private letter he had written in Portuguese to another man about their relationship before he enlisted. John Doe is a Lieutenant Colonel in the U.S. Army Reserves who, because he is gay, serves his country under constant fear of discharge under DADT and who cannot communicate regarding the core of his identity in the same manner as heterosexual servicemembers. 2 Order Denying in Part and Granting in Part Motion to Dismiss (June 9, 2009) (Ex. 1) at 11-14.
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substantive due process.3 The district court then set the case for trial, assigning an initial trial date of June 14, 2010, approximately 11 months later.4 The government then moved under 28 U.S.C. 1292(b) for certification of the district courts dismissal order for interlocutory appeal. The court found the motion untimely and recognized it as merely an effort to avoid discovery, which the government claimed to be burdensome.5 The government also moved for a stay because the political branches had indicated an intention to reconsider DADT, arguing that the discovery Log Cabin sought would interfere with the work of the political branches as they deliberated over changing the DADT policy. The district court denied the stay, concluding that Congress and the President cannot insulate a law from Constitutional challenge just by holding hearings.6 During pre-trial proceedings, the government resisted its obligation to participate in discovery. The district court examined and rejected almost every argument appellants presented, holding that a defendant is not exempt from discovery because the case involves a facial challenge,7 that the government had
Id. at 14-24. 4 Civil Trial Scheduling Order (July 24, 2009) (Ex. 2). Minute Order Denying Motion to Certify Order for Interlocutory Appeal and for Stay (Nov. 24, 2009) (Ex. 4) at 4-5. 6 Id. at 5. 7 Minute Order Denying Defendants Request Regarding Discovery (July 24, 2009) (Ex. 3).
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waived any deliberative process privilege and had failed to support any protections under the attorney-client privilege or attorney work product doctrine,8 and that the government had to answer requests for admission regarding statements made by the Commander in Chief that DADT does not contribute to and weakens our national security.9 At the close of discovery, the government moved for summary judgment. Appellants challenged Log Cabins standing, arguing, inter alia, that because Lt. Col. Doe had not been discharged, he had experienced insufficient harm to establish standing. The issues were fully briefed and standing was the subject of its own hearing and lengthy reasoned order.10 The district court held that, for purposes of summary judgment, Log Cabin had associational standing through both Mr. Nicholson and Lt. Col. Doe.11 At the district courts request, the parties submitted additional briefing on the standard of review applicable to Log Cabins facial challenge. The court addressed the parties arguments at length during the pre-trial conference and
Magistrate Judge Eick Civil Minutes (March 16, 2010) (Ex. 7). Minute Order Denying Defendantss Motion for Review of Magistrate Judges Discovery Ruling (April 6, 2010) (Ex. 8). 10 Transcript of Proceedings (April 26, 2010) (Ex. 9); Order Denying in Part Motion for Summary Judgment (May 27, 2010) (Ex. 10). 11 Id. at 11-26.
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issued another reasoned opinion.12 Recognizing that Witt construed Lawrence to demand a heightened level of review, the court adopted the intermediate scrutiny standard announced in Witt: the government must advance an important governmental interest, any intrusion on the rights identified in Lawrence must significantly further that interest, and the intrusion must be necessary to that interest. The court adopted this standard, although Witt announced it in the context of an as-applied challenge, because the constitutional standard of review depends on the nature of the right implicated, not the nature of the plaintiffs challenge. Rather, the court explained, the consequence of a facial challenge is simply that the plaintiff must prove the unconstitutional operation of DADT across a broader set of circumstances. The district court then denied summary judgment on the merits. In the months before trial, the government again requested a stay, claiming that the President had now promised repeal of DADT in his State of the Union address and that the Defense Department intended to study DADT and issue new regulations.13 The district court echoed its same concerns about the uncertainty of political action14 and again denied the stay.15 Then, one month before trial, the
See Reporters Transcript of Proceedings (June 28, 2010) (Ex. 11); Order Denying Defendants Motion for Summary Judgment (July 6, 2010) (Ex. 13). 13 See Reporters Transcript of Proceedings (February 18, 2010) (Ex. 5) at 7-8. 14 See, e.g., id. at 31. 15 Minute Order re: Stay of Proceedings (March 4, 2010) (Ex. 6).
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government again argued for a stay because the political branches [had] taken concrete steps to facilitate repeal of the DADT statute. In a lengthy decision, the court rejected this request as well, prophetically stating, Given the many contingencies involved including the threshold contingency of Congressional approval and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative.16 On the eve of trial, the government moved to exclude all of Log Cabins exhibits, expert witnesses, and lay witnesses essentially all of plaintiffs evidence. The parties fully briefed each of the governments three motions in limine and the court heard argument on them.17 The government continued to contend that a plaintiff is precluded from introducing any evidence when it mounts a facial challenge. The court, taking guidance from the heightened scrutiny Lawrence requires, rejected the governments position and held that evidence should be received.18 For the most part, the court denied the motions in limine.
Ex. 13 at 18-23. Reporters Transcript of Proceedings (June 28, 2010) (Ex. 11). 18 Ex. 13 at 10 n.7; Minute Order Granting in Part and Denying in Part Defendants Motions in Limine (July 1, 2010) (Ex. 12) at 3. The court stated at page 23 of the June 28, 2010 transcript:
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[I]t seems that the government is trying to have it both ways. [T]he government keeps focusing on, that it's a facial challenge. So the plaintiff has to prove that [DADT] doesnt further or advance any legitimate or important governmental objective. Yet, by this motion, the defendants are
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It is the trial that appellants gloss over most in their motion. Log Cabin presented over twenty witnesses during the two-week trial. They included four witnesses who established Log Cabins organizational standing. They included seven leading experts who testified regarding the history and effect of DADT from a variety of disciplines, including history, political and social science, psychology, and sociology, an expert on the Canadian military, and a former Assistant Secretary of Defense.19 Log Cabin also presented six former servicemembers representing a cross section of our military, who demonstrated that service of openly gay and lesbian servicemembers has no effect on unit cohesion, morale, or readiness, that their discharge under DADT actually impaired those interests, and that the military does not act consistently with the claimed goals of DADT in any case.20 Log Cabin also introduced the testimony of several government witnesses (via Rule 30(b)(6) deposition) who admitted, inter alia, that no study exists showing that DADT furthers its stated objectives; that the military allows
attempting, really, to prevent the plaintiff from putting in any evidence that goes to this element of its case.
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For the district courts summary of the expert witnesses testimony, see Amended & Final Memorandum Opinion (Ex. 14) at 56-72, and Findings of Fact & Conclusions of Law After Court Trial (Ex. 15) at 42-62.
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For the district courts summary of the lay witnesses testimony and credibility, see Ex. 14 at 20-45, 67-71, 82-83, and Ex. 15 at 7-33, 53-57, 60-61. 9
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convicted felons to enlist while it categorically excludes openly gay or lesbian individuals; and that the largest category of servicemembers discharged under DADT are individuals who were never deployed to a combat zone.21 Log Cabin also introduced numerous government documents produced in discovery that supported Log Cabins claims, well over 100 exhibits in all.22 Finally, Log Cabin presented several admissions from officials at the highest level of government demonstrating that DADT detracts from its stated objectives. For instance, Defense Secretary Gates admitted that the assertions purportedly justifying DADTs intrusion on the personal and private lives of homosexuals have no basis in fact (trial ex. 312 at 69). Admiral Mike Mullen, the Chairman of the Joint Chiefs of Staff, admitted that that DADT forces young men and women to lie about who they are in order to defend their fellow citizens, that he is unaware of any studies or evidence suggesting that repeal of DADT would undermine unit cohesion, and that allowing homosexuals to serve openly is the right thing to do and is a matter of integrity (trial ex. 312 at 59, 69; trial ex. 330). And President Obama, the Commander in Chief, admitted DADT doesnt
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For the district courts summary of the 30(b)(6) witnesses testimony, see Ex. 14 at 63-64, and Ex. 15 at 50.
Appellants misleadingly criticize the district court for ruling based on evidence submitted at trial rather than evidence before Congress. But the court admitted the entire legislative history of DADT and expressly considered it at pages 48 to 55 of its memorandum opinion. 10
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contribute to our national security, weakens our national security, and reversing DADT is essential for our national security (trial exs. 85, 305, 306, and 321). Against the weight of Log Cabins presentation, the government offered no evidence. It relied exclusively on the 1993 legislative history of the statute. Appellants had ample opportunity to present at trial any evidence that DADT furthered any of its stated purposes but did not do so. That is because there is no such evidence. At the close of the trial, the district court took the matter under submission.23 On September 9, 2010, the court issued an 85-page memorandum opinion explaining in detail its reasons for concluding that Log Cabin had established standing and declaring that DADT violates the Fifth Amendment guarantee of substantive due process and the First Amendment. The court set a briefing schedule for Log Cabin to submit a proposed judgment and injunction and for the government to file any objections thereto. Log Cabin submitted its proposed judgment and injunction, the government submitted 14 pages of objections, and Log Cabin submitted a lengthy response to The district court ordered post-trial briefing on the admissibility of Lt. Col. Does declaration, which Log Cabin offered to show that DADT deprives gay and lesbian members of the military from communicating the core of their identity and from even participating in the lawsuit. The court overruled the governments objection and admitted the declaration as probative of Does state of mind with respect to how DADT chills his speech and restricts his ability to petition the government for a redress of grievances. Ex. 14 at 2 n. 3, 83. 11
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those objections. The district court rejected the governments objections. Because Log Cabin proved the statute is facially unconstitutional, the district court rejected the argument that the injunction must be limited to plaintiff and its members. The district court found it could not sever the unconstitutional aspects of DADT from provisions that are constitutional. And it overruled objections to the nationwide scope of the injunction, reasoning that the injunction binds the defendants wherever they act and that territorial application would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere.24 As a result, the district court entered its injunction.25 The injunction: (1) permanently enjoined the government from enforcing or applying DADT against any person under its jurisdiction or command; and (2) ordered the government to immediately suspend and discontinue any pending investigation, or discharge, separation, or other proceeding under DADT. Included in the governments objections to the injunction was yet a fourth motion to stay, reciting the same argument that the political branches are considering repeal. With repeal still speculative, the district court again rejected
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Order Granting Permanent Injunction (Oct. 12, 2010) (Ex. 16) at 4-12. Judgment & Permanent Injunction (Oct. 12, 2010) (Ex. 17). 12
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a stay.26 The district court also very slightly amended its Memorandum Opinion and issued 84 pages of findings of fact and conclusions of law.27 The government then applied ex parte for a stay in the district court.28 The government supported its application with a declaration by Clifford L. Stanley, Under Secretary of Defense for Personnel and Readiness.29 This evidence was presented for the first time in the stay application; the government did not offer Mr. Stanleys testimony at trial or when the district court asked for appellants objections to the proposed injunction. Log Cabin opposed the application.30 The district court conducted a hearing on October 18, 2010, and then denied the stay request in a six-page opinion because the government satisfied none of the four factors in the stay analysis.31 The court found as follows: by relying on preLawrence and out-of-circuit authority with which Witt clearly conflicts, the government failed to demonstrate likelihood of success on the merits; the government did not show likelihood of irreparable injury because the injunction Ex. 16 at 13-14. 27 Ex. 15. 28 Defendants Ex Parte Application for Entry of an Emergency Stay (Oct. 14, 2010) (Ex. 18).
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Declaration of Clifford L. Stanley (Oct. 14, 2010) (Ex. E to motion). 30 Opposition of Log Cabin Republicans to Defendants Ex Parte Application for Emergency Stay of Injunction (Oct. 15, 2010) (Ex. 19). Inexplicably, and inexcusably, appellants did not attach this document to their motion here. 31 Amended Order Denying Defendants Ex Parte Application for Entry of an Emergency Stay (Oct. 20, 2010) (Ex. 20).
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does not prevent appellants from revising policies, regulations, or training regimens the activities mentioned in the Stanley declaration; the government did not show that any of the claimed injuries will occur because, were any of those harms imminent, it would have presented evidence of them at trial; the government failed to address the injury to servicemembers from the violation of their Fifth and First Amendment rights; and, as proved at trial, continued enforcement of DADT would only harm the publics interest in military readiness, unit cohesion, and the preservation of constitutional rights. In sum, the district court arrived at its permanent injunction after careful analysis at every stage of this years-long litigation. Throughout its six-year history, the government had multiple opportunities to introduce evidence that DADT actually furthered unit cohesion, morale, good order and discipline, and military readiness. It never did so. And for six years, the government had the opportunity to prepare for the eventuality that it may lose this trial. It never did. Based on the record presented at trial, the district court had no choice but to find in favor of Log Cabin.32
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The President agrees with the district courts decision. Indeed, on the very day that the government filed both its appeal to this Court and its application in the district court for a stay, President Obama, using his verified Twitter account, tweeted that Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to. DADT will end & it will end on my watch. And in the fuller remarks that his tweet encapsulated, the President made it clear that he agrees with the principles underlying the district courts judgment: we recently 14
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B.
Congressional Efforts to Repeal DADT
The government supported its repeated requests to stay the trial below on the political branches inevitable repeal of DADT. Its current emergency stay motion retains that premise, referring to the statutes eventual repeal over twenty times. After all, appellants claimed need for an orderly transition requires that there be a transition in the first place; and that requires repeal. But repeal remains uncertain, and any momentum toward repeal is now stalled. While the House of Representatives passed the 2011 National Defense Authorization Act which includes repeal language (H.R. 5136), and the Senate Armed Services Committee approved a version of the repeal language (S. 3454), the bill fell victim to a filibuster in the Senate in September and never reached a floor vote.33 The motion does not provide any information as to when the Senate may vote on the bill again. No date is scheduled for a vote, there is no assurance that there will not be another filibuster, and there is no assurance that the Senate
had a Supreme Court -- a district court case that said, dont ask, dont tell is unconstitutional. I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security, anybody should be able to serve. And they shouldnt have to lie about who they are in order to serve. See http://www.whitehouse.gov/the-pressoffice/2010/10/14/remarks-president-a-youth-town-hall.
The bill also includes the DREAM Act legislation (allowing alien youths to achieve legal residency through college or military service) which may have also inspired the filibuster and could inspire a future filibuster. The bill also includes legislation regarding fighter jet aircraft which the President has threatened to veto. 15
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will pass the legislation. The motion does not provide any evidence on this at all, or even attempt to explain why a lame-duck Senate would vote differently than it did in September, and ignores how next weeks midterm elections could impact repeal efforts. Even if the legislation passes the Senate, repeal is uncertain and subject to multiple cascading contingencies. Because the Senate version of the bill differs from the House version, the bills require reconciliation. If the Senate and House bills are reconciled, and if the President signs the legislation (which is not assured in light of other legislation included in the Defense Authorization Bill), repeal of DADT is still conditional and is not immediate. Under the proposed legislation, repeal of DADT is conditional on (1) the Secretary of Defense receiving the report of the Comprehensive Review currently being undertaken by the Military Working Group; and (2) the Presidents transmission to Congress of a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, confirming that they have considered the reports recommendations and its proposed plan of action, that the Defense Department has prepared necessary policies and regulations, and that the implementation of those policies and regulations is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces. All that is no small task, and repeal would not take place until 60 days 16
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after the last of all those events occurs; and the pending legislation also specifically provides that DADT shall remain in effect until these requirements and certifications are met and, if they are not met, DADT shall remain in effect. The government offers no timetable as to whether or when any of these events may occur. The report of the study is not expected until December 2010 at the earliest; its recommendations will not be known until then and it is not certain that the study will recommend repeal. (The motion seems to assume that it will, but provides no support for that assumption.) Following the delivery of the report, assuming it recommends outright repeal rather than some partial measure, it must be considered; the Department of Defense must prepare policies and procedures for implementing the repeal; and the various certifications must be obtained. There is no way to know whether or when all of these events may occur. Thus, the orderly transition which the government seeks to achieve via a stay remains speculative at best. III. THE MOTION ADVANCES NEW GROUNDS NOT SUBMITTED TO THE DISTRICT COURT Appellants stay application to the district court argued that the district court should stay its injunction pending appeal based on two grounds: serious [though unspecified] legal questions presented by the district courts finding of facial 17
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unconstitutionality; and the supposed irreparable harm to the military that would result from the entry into immediate effect of a worldwide injunction. See Ex. 18 at 4-12, grounds summarized at 3:13-17. Appellants motion in this Court, however, asserts several additional grounds for the requested stay. It challenges the district courts finding that Log Cabin has standing to bring this action (Motion at 6-9). It challenges the district courts finding that DADT violates the First Amendment rights of current and prospective servicemembers (Motion at 11-12). And it challenges the district courts injunction, which applies to the military as a whole, as being in essence classwide relief (Motion at 12-15).34 None of these grounds was submitted to the district court as a basis for the request to that court for a stay pending appeal. Circuit Rule 27-3(a)(4) provides that [i]f the relief sought in the motion was available in the district court the motion shall state whether all grounds advanced in support thereof in this court were submitted to the district court and, if not, why the motion should not be remanded or denied. The motion contains such a statement, but it is inaccurate. Failure to submit to the district court, for its determination in the first instance, all grounds advanced in this Court for the relief sought is therefore an independent basis for remand or denial of the In their application in the district court, this point was merely an exacerbating factor (Ex. 18 at 11); in the motion here, it is an independent ground for the relief appellants seek. 18
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motion. At a minimum, this Court should not consider the new grounds which appellants advance for the first time here. IV. A STAY PENDING APPEAL SHOULD BE DENIED A. A Stay Is Not a Matter of Right
A stay of injunction is extraordinary relief for which the moving party bears a heavy burden. Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231 (1971) (Burger, C.J., in chambers) (denying stay of desegregation order). A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. Nken v. Holder, 129 S. Ct. 1749, 1760-61 (2009) (citations omitted). The motion attempts to transform the presumptive constitutional validity of an Act of Congress into an ipso facto conclusive declaration of irreparable injury; the application goes so far as to claim (at pages 1-2) that the invalidation of a statute by itself is routinely the basis for stays pending appeal. But it is simply not the case that a stay is required whenever a statute is held unconstitutional. In appropriate circumstances, as where the balance of equities weighs in favor of those who successfully challenge the constitutionality of a statute, a stay of an 19
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injunction against enforcement of that statute will be denied. E.g., Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316-17 (1983) (Blackmun, J., in chambers) (denying stay of injunction against enforcement of certain provisions of FIFRA which respondent claimed constituted an unconstitutional taking of its property, and noting that the granting of a stay might well cause irreparable harm to [respondent]); see also Blum v. Caldwell, 446 U.S. 1311, 1315-16 (1980) (Marshall, J., in chambers) (state statute) and additional cases cited in Nken, supra, 129 S.Ct. at 1763-64 (Kennedy, J., concurring).35 Indeed, if the stay applicant fails to show irreparable injury from denial of a stay, its likelihood of success on the merits need not even be considered. Monsanto, supra, citing Whalen v. Roe, 423 U.S. 1313, 1316-17 (1975) (Marshall, J., in chambers). The government relies on a group of decisions that all rest on the ipse dixit of a single Justice, beginning with New Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). In New Motor Vehicle Board, citing no law, Justice Rehnquist granted a stay of a three-judge district courts injunction against enforcement of a state statute because he disagreed that
35
Cf. Edwards v. Hope Medical Group, 512 U.S. 1301 (1994) (Scalia, J., in chambers) (The practice of the Justices has consistently been to grant a stay only when three conditions obtain. There must be a reasonable probability that certiorari will be granted, a significant possibility that the judgment below will be reversed, and a likelihood of irreparable harm (assuming the applicants position is correct) if the judgment below is not stayed). 20
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the plaintiff had a protected 14th Amendment liberty or property interest. By contrast, there is no question that servicemembers protected liberty interest is implicated here; Witt v. Dept of the Air Force, supra, which is the law of this Circuit, makes that clear. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997), relied on that same unsupported statement in New Motor Vehicle Board. In Walters v. Natl Assn of Radiation Survivors, 468 U.S. 1323 (1984) (Rehnquist, J., in chambers), Justice Rehnquist granted a stay of a district court injunction, but the constitutionality of the specific federal statute in question had previously been affirmed both by the Supreme Court and by the Circuit Court having jurisdiction. Finally, appellants cite Bowen v. Kendrick, 483 U.S. 1304 (1987) (Rehnquist, C.J., in chambers) for the proposition that the Supreme Court often grants a stay upon the governments request where a district judge declares an Act of Congress unconstitutional. But that is far from a categorical rule, as shown above. As Chief Justice Rehnquist explained in Bowen, the presumption of constitutionality is an equity to be considered in balancing the hardships. Irreparable injury to the non-moving party is a heavy weight on the other side of the balance. And in none of the cases cited by appellants did that balancing analysis require consideration of a statute that the executive branch admits does not further its stated goals, as here. 21
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B.
Appellants Do Not Meet the Standard for a Stay
Four factors regulate the issuance of a stay of a district court judgment, including stay of injunction, pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). These are the same four factors that must be shown by a party moving for an injunction in the first place, see Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008), and analysis of the factors in the one situation informs the analysis in the other. See Golden Gate Rest. Assn v. City & County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). The moving party must show the existence of all four factors; and the moving party must show not merely the possibility of irreparable injury absent a stay, as appellants contend at page 6 of their Motion, but the likelihood of irreparable injury. Winter, 129 S.Ct. at 375 (rejecting this Circuits earlier possibility standard as articulated in, e.g., Golden Gate Rest. Assn, 512 F.3d at 1115, and Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983), cited by appellants); Alliance for the Wild Rockies v. Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149, at *5, 8 (9th Cir. Sept. 22, 2010). The governments showing 22
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here fails all four factors. 1. Appellants Have Not Shown a Likelihood of Success on the Merits
Given the controlling law and the extensive factual record developed in the district court it is Log Cabin that is likely to succeed on the merits on appeal. The district courts finding of a constitutional violation is not to be taken lightly. Log Cabins evidence at trial was overwhelming and showed conclusively, meeting the test set forth in Witt, supra, 527 F.3d 806, 819, that Don't Ask, Don't Tell does not significantly further an important governmental interest, is not necessary to that interest, and in fact impairs that interest. The government presented no evidence to the contrary at trial, and advanced no circumstance in which DADT has been or could be applied constitutionally. The government will be restricted on appeal to the record it made: the legislative history of the statute. To meet their burden, appellants must show a likelihood of success on the merits on both the due process and the First Amendment claims on which the district court found in Log Cabins favor. Appellants fail to do so on either, much less both. Their motion relies on three arguments in this regard: deference to the military; the Witt standard; and a mischaracterization of the district courts ruling on the First Amendment claim (Motion at 9-12). We address each of these points below. Appellants cannot show any likelihood of success on the merits, and they
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know that.36 a. Standing
Appellants improperly assert as a basis for stay their challenge to Log Cabins standing to bring this lawsuit. The district court heard evidence of Log Cabins standing from four witnesses at trial and devoted extensive analysis to the issue in its Memorandum Opinion (Ex. 14 at 2-13), finding that Log Cabin had proper associational standing to bring this facial challenge to DADT. Appellants motion omits key facts heard and determined by the district court on this issue.37 Similarly, as the trial record reflects in detail, appellants pretense that the case below was brought solely on behalf of the two individuals through whom Log Cabin established standing, John Nicholson and Lt. Col. John Doe, is demonstrably false: this was a facial challenge to DADT, treated as such throughout the case. Members who confer standing on an association are not equivalent to plaintiffs.
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The Motions apologetic footnote 1 acknowledges as much.
To take just one example, the motion asserts (at page 7) that Log Cabins membership is limited to dues-paying members who are Republicans, referring to Log Cabins Bylaws, and challenges Mr. Nicholsons qualifications under that provision. But the motion omits the immediately following section of the Bylaws which provides that the board of directors may establish other criteria for granting honorary membership. The district court heard all this evidence at trial and in pretrial motions, and rejected the contention the government makes here. See Ex. 14 at 6-7. This Court has recognized the importance of a trial courts factual inquiry on reviewing an injunction proceeding and deferring to its factual conclusions, see Rendish v. City of Tacoma, 123 F.3d 1216, 1225 (9th Cir. 1997), and details of the record such as this illustrate the wisdom of doing so. 24
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b.
Scope of the injunction
Derivative of the standing argument but conceptually distinct, appellants challenge the worldwide scope of the district courts injunction, characterizing it as in essence classwide relief and arguing that only Log Cabin and its members should be entitled to an injunction. Besides misrepresenting the theory under which this case was presented and tried, appellants argument misstates the law. Longstanding Ninth Circuit authority holds that there is no bar against class-wide, and nationwide relief in federal district or circuit court when it is appropriate. Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987). Nationwide relief even an injunction protecting persons other than prevailing parties in the lawsuit is appropriate if such breadth is necessary to give prevailing parties the relief to which they are entitled. Id. at 1170-71 (emphasis in original). Numerous district courts have issued, and circuit courts have affirmed, nationwide injunctions against the government in both associational and individual actions. See, e.g., ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), affd sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008) (invalidating on Constitutional grounds and permanently enjoining enforcement of the Child Online Protection Act).38
In addition to many other cases that Log Cabin cited to the district court below, including inter alia Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash.), affd, 346 F.3d 873 (9th Cir. 2003) (permanently enjoining the Immigration and Naturalization Service from removing Somali natives or nationals in the United States to Somalia) and Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) (affirming
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c.
Appellants completely ignore Lawrence v. Texas and therefore have not shown a serious legal question
A moving party that cannot make a showing of likely success on the merits may substitute a showing that the appeal presents a serious legal question. See Golden Gate Rest. Assn, 512 F.3d at 1115-16. This is what appellants tried to do in their motion to the district court for a stay. It is not clear if they still advance this argument in this Court, but to the extent they do, the motion fails as well because appellants have not shown the existence of a serious legal question. For their claim that such a serious question exists, appellants again rely solely, as they have throughout this case, on several cases that did not invalidate DADT but which preceded Lawrence and Witt and are therefore irrelevant.39 Tellingly, appellants motion does not even mention Lawrence at all. Appellants also cite Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), but Cook does not control in this Circuit, where the rule of Witt a decision the government elected not to
injunction enjoining Attorney General and INS, nationwide, from implementing regulations allowing administrative denaturalization), the district court independently researched and cited several more such cases in its Order Granting Permanent Injunction (Ex. 16), at 5-6. Holmes v. Cal. Army Natl Guard, 124 F.3d 1126 (9th Cir. 1997); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc). The motion also cites Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc), which dealt with the military regulations that preceded the enactment of DADT. 26
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appeal governs.40 The injunction here was specifically based on Witt, and conforms to the controlling law of this Circuit. Furthermore, the appellants motion ignores the requirement that a movant relying on the serious legal question alternative must show that the balance of hardships tips sharply in its favor. Golden Gate Rest. Assn, 512 F.3d at 111516; Nelson v. Natl Aeronautics & Space Admin. (Nelson II), 530 F.3d 865, 87273 (9th Cir. 2008), cert. granted on other grounds, 130 S. Ct. 1755 (March 8, 2010) (No. 09-530). The determination of the balance of hardships, on review of an injunction order, necessarily involves a factual inquiry of the sort that the district court here carefully conducted and adjudicated in detail in its comprehensive
The Cook court stated explicitly that it disagreed with this Courts opinion in Witt; and Cook, moreover, was decided on an appeal from a motion to dismiss, without the benefit of the extensive evidence that the district court heard and considered at a full trial. The government also continues to falsely assert that Witt rejected as inappropriate a facial challenge to the statute. Witt did not assert that a facial challenge to DADT would be impermissible, it merely decided the case that was before it, which was an as-applied challenge. 527 F.3d at 819. The district court properly applied the standard announced in Witt to this facial challenge by requiring Log Cabin to present proof under the Witt factors that DADT does not have a plainly legitimate sweep. Nothing in Witt foreclosed the district court from doing so. Finally, it is significant to note that on remand, the district court hearing Witts as-applied challenge to DADT also found DADT unconstitutional and ordered the plaintiff reinstated to the Air Force. To our knowledge, the government has not moved to stay that order. These facts show further that no serious legal question is presented here, and that the military suffers no harm from the open service of homosexual servicemembers.
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opinion and findings of fact. As shown below, the balance of hardships in this case in fact tips sharply toward the appellee, so appellants cannot rely on the serious legal question avenue. d. Military deference
Appellants motion also heavily invokes the notion of judicial deference to Congress and the military when it comes to regulating military affairs. But as the district court recognized throughout the proceedings below, the military is not immune to the demands of the Constitution. Deference does not mean abdication and Congress cannot subvert the guarantees of the Due Process Clause merely because it is legislating in the area of military affairs. Witt, 527 F.3d at 821. Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs.... Weiss v. United States, 510 U.S. 163, 176 (1994).41 Moreover, as noted above, Log Cabin presented unrebutted admissions at trial by our nations top civilian and military commanders that DADT doesnt contribute to our national security, weakens our national security, and reversing Appellants complaint that the injunction is a court-ordered precipitous change in the militarys longstanding policy which constitutes an extraordinary and unwarranted intrusion into military affairs (Motion at 16-17) carries no weight in the constitutional context. Moreover, evidence at trial showed that the end of the similar bans on open service by homosexuals in Canada and the United Kingdom came in response to court rulings in those jurisdictions (Trial Tr. 1114-15 [U.K.]; 1280-83 [Canada]), and was implemented with no ill effect whatsoever. 28
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DADT is essential for our national security (trial exs. 85, 305, 306, and 321); that no studies or evidence suggest that repeal of DADT would undermine unit cohesion (trial ex. 312 at 69); and that the assertions purportedly justifying DADTs intrusion on the personal and private lives of homosexuals have no basis in fact (id.). e. The First Amendment claim
The district court found that DADT infringes on the First Amendment rights of current and prospective servicemembers in at least two distinct ways: it imposes content-based restrictions on their speech; and it chills their ability to complain of harassment and to openly join organizations that seek to change the militarys policy, thereby preventing them from petitioning the government for redress of grievances (Ex. 14 at 75-84). Contrary to another of appellants misstatements of the record (Motion at 12), the district court did in fact invoke the overbreadth doctrine; it held that the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here (Ex. 14 at 81, 82-84). The district court therefore found, based on specific testimony at trial, that DADT requires discharge for pure speech, not merely for conduct as appellants claim it was analyzed in the (pre-Lawrence) cases of Holmes v. Cal. Army Natl
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Guard and Philips v. Perry, supra.42 In addition, the evidence at trial showed, through the testimony of at least four witnesses, that DADT stifles the right of petition, a separate and independent First Amendment right that has not been invoked in prior challenges to DADT. 2. Appellants Have Not Shown Irreparable Injury if a Stay is Denied
Much of the appellants motion is devoted to their claim that the military will be harmed if the district courts injunction remains in place while the government appeals. The supposed harms identified in the motion, and enumerated in the Stanley Declaration, are all to the militarys institutional interests and its bureaucratic needs. But the injunction does not require the military to take any affirmative measures: it does not order the military to redesign its barracks, to retool its pay scales or benefits, to re-ordain its chaplains, to rewrite its already extensive anti-harassment or dignity and respect rules, or anything else. Nor does it prevent the military from undertaking the acts appellants now claim it must do if DADT is enjoined revising policies, preparing educational Philips did not reach the First Amendment issue, because the servicemember was discharged under 10 U.S.C. 654(b)(1), which prohibits homosexual conduct, not subsection 654(b)(2), which prohibits speech. Philips, 106 F.3d at 1429-30. The court in Holmes summarily disposed of the plaintiffs First Amendment claims by stating that they were discharged for conduct, not for speech, 124 F.3d at 1136, without considering whether DADT affected protected speech other than an admission of homosexuality used in a discharge proceeding as evidence of conduct. Neither case therefore controls the outcome here. 30
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and training materials, and the like.43 The district courts injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability. With the injunction in place, nothing will change with regard to the composition of the military, the training, promotion, demotion, and deployment of servicemembers, the mission and operations of the armed forces, or anything else that pertains to the important governmental interest that the military serves. The evidence at trial showed that homosexual men and women already serve today; they are deployed to theaters of combat when needed indeed, retained overall in greater numbers during times of combat even if they are openly homosexual; it is their discharge, not their presence, that if anything impacts morale and good order. As the district court held (Ex. 14 at 59), [f]ar from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. The evidence at trial directly undermine[d] any contention that the Act furthers the Governments purpose of military readiness, id. at 64; and appellants admitted in public statements of the
The injunction does not even prevent the military from warning current and prospective homosexual servicemembers that the current legal environment is uncertain, as it has done (Ex. 22), and letting them reach their own decisions whether to enlist or disclose their sexual orientation. 31
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President and the Chairman of the Joint Chiefs of Staff that far from being necessary to further significantly the Governments interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest. Id. at 65. Enjoining the enforcement of DADT, far from injuring appellants, will actually improve morale, readiness, cohesion, and overall military effectiveness. The supposed injury to the military that the government claims would result from the district courts injunction is, by the governments own account, entirely a matter of rewriting handbooks and personnel manuals, developing training and education materials, reassuring serving personnel that their views, concerns, and perspectives are valued, and the like. These activities are not irreparable injury of the type that the test for a stay contemplates. Moreover, the government has known since June 2009, when the district court set this case for trial, that it might lose and have to adjust its policies accordingly. By contrast, the injury to Log Cabins members and to all American servicemembers from granting a stay is both immediate and truly irreparable, in a Constitutional sense, as the following section shows. 3. A Stay Would Cause Substantial Injury to Appellee and to All Homosexual Servicemembers
If this Court grants the governments application for a stay, homosexual
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servicemembers will continue to be investigated and discharged under DADT.44 Those investigations and discharges violate the due process and First Amendment rights of the servicemembers, and it is firmly established that deprivation of Constitutional rights is ipso facto irreparable injury. [C]onstitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. Nelson II, 530 F.3d at 882; Elrod v. Burns, 427 U.S. 347, 373 (1976) (The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). Remarkably, the governments motion does not even address at all the issue of Constitutional injury to Log Cabin and to homosexual servicemembers. On the other hand, maintaining the injunction in place pending appeal preserves servicemembers Constitutional rights. They will continue to be held to the military standards applicable to all servicemembers, and subject to the same discipline and regulations that apply to all. If the district courts judgment is ultimately reversed and the Don't Ask, Don't Tell Act is reinstated, the government may resume investigations and discharges with no ill effects beyond the hiatus it will have experienced. But the ill effects to homosexual servicemembers of the DADT is that rara avis, a statute that goes beyond merely not protecting individuals against discrimination on some basis, but actually mandates discrimination on that basis. The government does not even suggest that the hardships could be brought closer into balance by, at a minimum, a moratorium on investigations and discharges while its appeal proceeds. 33
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inverse scenario disruption and termination of their military careers, with merely the hollow satisfaction of abstract vindication when the district courts judgment is ultimately upheld are irreparable. These individuals may not be reinstated, even if reinstatement could make them whole for the deprivation of Constitutional rights they would have suffered. The concrete injury to them from an ill-advised stay of the injunction far outweighs the theoretical harm to the government that might result from maintaining the injunction in place during the appeal process, and tips the balance of hardships sharply in favor of appellee. Witnesses at trial men and women, officers and enlisted personnel, from multiple branches of the service presented powerful, unforgettable testimony of the effects of DADT on their personal lives, the lives of their unit comrades, and, most importantly, on the performance of their units. They are American heroes. Compelled by DADT to lie and dissemble about their human nature, subjected to unredressable humiliations, forced out of careers in which they were commended and decorated: these witnesses proved that DADT causes, every day that it remains in force, irreparable injury to American servicemembers. Faced with a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in favor of
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the latter. Golden Gate Rest. Assn, 512 F.3d at 1126 (quotation omitted).45 4. The Public Interest Weighs Against a Stay
The analysis of where the public interest lies is a separate and additional consideration from that of irreparable injury. Golden Gate Rest. Assn, 512 F.3d at 1116. The public interest is not identical to the governments interest; if it were, this factor would always count in favor of sustaining a statute or granting a stay of an injunction invalidating a statute, and there would be no need to include it as one of several factors to be considered. Appellants motion does not discuss the public interest at all, beyond reciting that an Act of Congress is deemed to be a declaration of public interest (Motion at 16). But the public interest is not so limited: it lies equally if not more so in safeguarding the Constitutional rights that define us as a nation. The public interest is not served by blind deference to military judgment or even to legislative findings. Rather, the clear public interest is in ensuring that the military, like every other institution of our society, conforms to Constitutional requirements. Finally, it must not be overlooked that it is not only servicemembers who are affected by DADT. Servicemembers family and friends third party members of the public are affected also, as their own First Amendment rights are impaired
Amicus curiae briefs being filed concurrently with this Response address the harms to servicemembers in more detail. 35
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when a servicemember cannot write them a private letter or express affection to them in public. This, too, was proven at trial (see Ex. 14 at 84). Their interests militate against the granting of a stay of injunction as well. C. A Stay Would Be More Disruptive of the Status Quo Than Maintaining the Injunction
It is too simplistic to argue, as the government does at page 20 of its motion, that a stay of the injunction is necessary to preserve the status quo. The status quo is not simply the presence of DADT on the statute books since 1993, as the government contends. It is equally the status quo, as the district court heard and found, that homosexuals are serving, today, in all branches of the military, honorably and valiantly. Though they serve in constant peril of investigation and discharge, they serve; they are commended, decorated, and promoted; they are deployed to combat when the needs of the military so require.46 If the district courts injunction remains in place pending the governments appeal, as it should, this status quo will be maintained; the only change to it will be the lifting of the peril of investigation and discharge that is currently unconstitutionally overlaid on the mortal peril these men and women face simply by virtue of their profession. Maintaining the status quo is not a talisman. Golden Gate Rest. Assn, 512 F.3d at 1116. Rather, the focus must be on prevention of injury: [i]t often
46
See Ex. 14 at 64, 72-73. 36

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happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. Id. The government has already acted nimbly in response to the district courts injunction. Two days after it was issued, on October 14, the Defense Department announced that it was halting all discharges under DADT. Press Release (Ex. 21). The next day, October 15, the military instructed its field recruiting offices to process applications for enlistment from openly gay and lesbian applicants. Press Release (Ex. 23). News reports indicated that applications from such individuals were received (and presumably processed) without incident. On that same day, Undersecretary of Defense Stanley issued a memorandum to the secretaries of the military departments (Ex. 22) directing that the Department of Defense will abide by the terms of the injunction. Then, last Thursday, October 21, following this Courts issuance of a temporary stay, the Secretary of Defense issued a memorandum (Ex. 24) directing that until further notice, no military member shall be separated pursuant to 10 U.S.C. 654 without the personal approval of the Secretary of the Military Department concerned, in coordination with the Under Secretary of Defense for Personnel and Readiness and the General Counsel of the 37
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Department of Defense. These functions may not be delegated. That the government could and did issue the October 15 instructions and comply with the injunction immediately shows that the military will not sustain irreparable harm from compliance and belies the need for a stay pending appeal. And while the October 21 directive has no effect on the initiation and progress of investigation or discharge proceedings and thus does not cure the constitutional harm that the district court found it will necessarily slow the rate of actual discharges, given that all DADT discharges must be personally approved by three high-ranking civilian officials. That strikingly undermines the governments claim that it must keep its current policies and regulations in place, and will sustain irreparable harm if it is not free to fully enforce DADT pending appeal. V. CONCLUSION For all the reasons set forth above, appellants emergency motion for stay should be denied. If a stay is granted, however, this appeal should be expedited.
Respectfully submitted, WHITE & CASE LLP By: /s/ Dan Woods Dan Woods Attorneys for Plaintiff/Appellee Log Cabin Republicans
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REQUEST FOR ORAL ARGUMENT Appellee requests that this motion be set for oral argument.
Respectfully submitted, WHITE & CASE LLP
By: /s/ Dan Woods Dan Woods Attorneys for Plaintiff/Appellee Log Cabin Republicans
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CERTIFICATE OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 633 West Fifth Street, Suite 1900, Los Angeles, California 90071. I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 25, 2010. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate system. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on October 25, 2010, at Los Angeles, California.
/s/ Earle Miller Earle Miller
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INDEX OF EXHIBITS IN SUPPORT OF RESPONSE OF APPELLEE LOG CABIN REPUBLICANS TO GOVERNMENTS EMERGENCY STAY MOTION Ex. 1. Ex. 2. Ex. 3. Ex. 4. Ex. 5. Ex. 6. Ex. 7. Ex. 8. Ex. 9. Order Denying in Part and Granting in Part Motion to Dismiss (June 9, 2009) Civil Trial Scheduling Order (July 24, 2009) Minute Order Denying Defendants Request Regarding Discovery (July 24, 2009) Minute Order Denying Motion to Certify Order for Interlocutory Appeal and for Stay (Nov. 24, 2009) Reporters Transcript of Proceedings (February 18, 2010) Minute Order re: Stay of Proceedings (March 4, 2010) Magistrate Judge Eick Civil Minutes (March 16, 2010) Minute Order Denying Defendantss Motion for Review of Magistrate Judges Discovery Ruling (April 6, 2010) Reporters Transcript of Proceedings (April 26, 2010)
Ex. 10. Order Denying in Part Motion for Summary Judgment (May 27, 2010) Ex. 11. Reporters Transcript of Proceedings (June 28, 2010) Ex. 12. Minute Order Granting in Part and Denying in Part Defendants Motions in Limine (July 1, 2010) Ex. 13. Order Denying Defendants Motion for Summary Judgment (July 6, 2010) Ex. 14. Amended & Final Memorandum Opinion (Oct. 12, 2010) Ex. 15. Findings of Fact & Conclusions of Law After Court Trial (Oct. 12, 2010) Ex. 16. Order Granting Permanent Injunction (Oct. 12, 2010) Ex. 17. Judgment & Permanent Injunction (Oct. 12, 2010)
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Ex. 18. Defendants Ex Parte Application for the Entry of an Emergency Stay (Oct. 14, 2010) Ex. 19. Opposition of Log Cabin Republicans to Defendants Ex Parte Application for Emergency Stay of Injunction (Oct. 15, 2010) Ex. 20. Amended Order Denying Defendants Ex Parte Application for Entry of an Emergency Stay (Oct. 20, 2010) Ex. 21. Press Release (Oct. 14, 2010) Ex. 22. Clifford L. Stanley Memorandum for Secretaries of the Military Departments (Oct. 15, 2010) Ex. 23. Press Release (Oct. 19, 2010) Ex. 24. Secretary of Defense Memorandum for Secretaries of the Military Departments; Clifford L. Stanley Memorandum for Secretaries of the Military Departments (Oct. 21, 2010)
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s:\VAP\CRD'S FORMS\LA04CV08425VAP-O.wpd
SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
LOG CABIN REPUBLICANS, a non-profit corporation,
UNITED STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF DEFENSE, in his official capacity, Defendant(s).
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. CV 04-8425-VAP (Ex) CIVIL TRIAL SCHEDULING ORDER Deadline for Initial Designation of Expert Witnesses: January 5, 2010 Deadline for Designation of Rebuttal Expert Witnesses: January 19, 2010 Discovery Cut-Off: March 15, 2010 Summary Judgment Motion Hearing Cut-Off: April 26, 2010 Pretrial Conference: June 7, 2010 at 2:30 p.m Court Trial: June 14, 2010 at 8:30 a.m.
This case is set for trial before the Honorable Virginia A. Phillips, Courtroom 2, United States District Court, 3470 Twelfth Street, 2nd Floor, Riverside, California.
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Motions Judge Phillips hears motions in civil cases on Mondays at 10:00 a.m. The cut-off date for hearing motions is the last day on which motions will be heard, i.e., the motion must be filed and served at least 24 days before the deadline, if served by mail, in accordance with the requirements of Local Civil Rule 6-1. A copy of every document filed must be delivered to the chambers drop box outside Courtroom 2 ("the mandatory chambers copy"). The cut-off date applies to all non-discovery motions except motions directly related to the conduct of trial, e.g., motions in limine and motions to sever parties or bifurcate issues for trial. If a cut-off date for hearing motions has not been set by the Court, the cut-off date shall be at least twenty-one (21) days before the Pretrial Conference. All motions in limine and other trial-related motions must be properly noticed for hearing no later than the date of the Pretrial Conference. All parties and counsel must comply with Local Rule 7-16, which provides as follows: Any moving party who does not intend to press the motion or who intends to withdraw it before the hearing date, any opposing party who does not intend to oppose the motion, and any party who intends to move for a continuance of the hearing of a motion, shall, not later than noon on the Tuesday preceding the hearing date, notify opposing counsel and the court clerk. Failure to comply with this notification requirement may result in the imposition of sanctions on the offending counsel and party.
Discovery Counsel shall initiate all discovery other than depositions at least forty-five (45) days prior to the cut-off date. The Court will not approve stipulations between counsel which
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permit responses to be served after the cut-off date except in unusual circumstances and for good cause shown. All depositions must be completed by the discovery cut-off deadline. Counsel shall lodge all original depositions that will be used in trial with the Courtroom Deputy Clerk on the first day of trial. Discovery should be kept to a minimum and should focus only on issues genuinely in dispute. Counsel are expected to resolve discovery problems without the assistance of the Court. Discovery disputes have been referred to the United States Magistrate Judge assigned to this case. The discovery cut-off is the last date to complete discovery, including expert discovery. It is also the last day for hearing any discovery motion. If not separately set forth above, the required expert disclosures shall be made seventy (70) days before the discovery cut-off date.
Settlement Procedures Local Rule 16-2.9 requires the parties in every case to participate in a formal settlement proceeding. Counsel must complete the settlement conference or mediation by the date listed above and shall include in the proposed Pretrial Conference Order a status report detailing what procedure has been followed, and the status of settlement efforts. The following procedures are available: Settlement Procedure No. 1 - Unless an alternative settlement procedure has been selected by the parties, and with the concurrence of the Court, the parties shall appear before the Court or before the Magistrate Judge assigned to the case for such settlement proceedings as the Court may conduct or direct. Settlement Procedure No. 2 - The parties shall appear before an attorney selected from the Attorney Settlement Officer Panel, or before an attorney appointed by the Court for settlement proceedings. Settlement Procedure No. 3 - The parties shall appear before a retired judicial officer or other private dispute resolution body for settlement proceedings.
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Unless otherwise ordered by the Judge or the Magistrate Judge conducting a settlement conference (whose procedures will apply if different from those set forth here), the parties shall follow the "Requirements for Settlement Procedures" set forth in Local Rule 16-15.5. If a settlement is reached, it shall be reported immediately to this Court as required by Local Rule 16-15.7. In all cases set for jury trial, the parties must notify the Court, no later than the Wednesday preceding the Tuesday trial date, of any settlement, so that the necessary arrangements can be made to bring in a different case for trial or notify the members of the public who would otherwise be reporting for jury duty that their services are not needed that date. Failure to comply with this notification requirement may result in the imposition of sanctions on counsel for one or more parties, or their clients, or both.
Pretrial Conference The Court will conduct a Pretrial Conference in this case pursuant to Federal Rule of Civil Procedure 16 and Local Rule 16-1 on the date and time listed above. Each party appearing in this action shall be represented at the Pretrial Conference and at all pretrial meetings by the lead trial counsel. Counsel should be prepared to discuss streamlining the trial, including presentation of testimony by deposition excerpts, time limits, stipulations as to undisputed facts, and qualification of experts by admitted resumes. In rare cases where the Pretrial Conference is waived by the Court, counsel must follow Local Rule 1611.2.
Pretrial Filings Counsel shall submit carefully prepared Memoranda of Contentions of Fact and Law (which may also serve as the trial briefs) and proposed Pretrial Conference Orders in accordance with the provisions of Local Rules 16-4 through 16-7. The form of the
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proposed Pretrial Conference Order shall be in conformity with the form set forth in Appendix A to the Local Rules. The Memoranda of Contentions of Fact and Law shall be served not later than twenty-one (21) calendar days before the Pretrial Conference. The proposed Pretrial Conference Order shall be lodged seven (7) calendar days before the Pretrial Conference. In drafting the proposed Pretrial Conference Order, counsel shall make a good faith effort to agree on and set forth as many uncontested facts as possible. The Court may read the uncontested facts to the jury at the start of the trial. Carefully drafted and comprehensively stated stipulations of facts will reduce the length of trial and increase the jurys understanding of the case. In drafting the factual issues in dispute for the proposed Pretrial Conference Order, the issues of fact should track the elements of a claim or defense upon which the jury would be required to make findings. Counsel should attempt to state issues in ultimate fact form, not in the form of evidentiary fact issues (i.e., "was the defendant negligent," "was such negligence the proximate cause of injury to the plaintiff," "was the plaintiff negligent;" not, "was the plaintiff standing on the corner of 5th and Spring at 10:00 a.m. on May 3"). Counsel may list sub-issues under the headings of ultimate fact issues, but should not use this as a device to list disputes over evidentiary matters. In general, the issues of fact should set forth the disputed elements of the claims or affirmative defenses. Issues of law should state legal issues upon which the Court will be required to rule after the Pretrial Conference, including during the trial, and should not list ultimate fact issues to be submitted to the trier of fact. If expert witnesses are to be called at trial, each party shall list and identify its respective expert witnesses. Failure of a party to list and identify an expert witness in the proposed Pretrial Conference Order shall preclude a party from calling that expert witness at trial.
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Exhibit and Witness Lists Counsel are to prepare their exhibits by placing them in 3-hole notebooks which are tabbed down the right side with exhibit numbers. The notebooks are to be prepared with an original for the Courtroom Deputy Clerk, which shall be tagged with the appropriate exhibit tags in the upper right hand corner of the first page of each exhibit, and one copy for the Court. Each notebook shall contain a list of the included exhibits. The exhibits are to be numbered in accordance with Local Rule 26-3. Counsel can obtain exhibit tags at the Clerks Office, Room 134, 1st Floor, 3470 Twelfth Street, Riverside. The Court requires the following to be submitted to the Courtroom Deputy Clerk on the first day of trial: ! The original exhibits with the Courts exhibit tags. The parties shall
use yellow tags for plaintiff and blue tags for defendant, which shall be stapled to the front of the exhibit on the upper right corner with the case number, case name, and exhibit number placed on each tag. ! One bench book with a copy of each exhibit for use by the Court,
tabbed with numbers as described above. (Courts exhibit tags not necessary.) ! Three (3) copies of exhibit lists.
The exhibit lists shall be in the form indicated by the following example: Case Title:
No. of Exhibit
Case No.
Description Date Identified Date Admitted
1/30/80 letter from Doe to Roe
___________
____________
Three (3) copies of witness lists in the order in which the witnesses
may be called to testify. The witness lists shall be in the form indicated by the following example:
Case Title:
Case No. 6 83
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Name of Witness 1. John Doe 2. Jane Roe
Date called to testify
All counsel are to meet no later than ten (10) calendar days before trial and to stipulate to the extent possible to foundation, waiver of the best evidence rule, and which exhibits may be received into evidence at the start of trial. The exhibits to be received will be noted on the extra copies of the exhibit lists.
Jury Instructions Fourteen (14) calendar days prior to the Rule 16-2 Meeting of Counsel, counsel shall exchange proposed jury instructions and special verdict forms (if applicable). Seven (7) calendar days prior to the Rule 16-2 meeting, counsel shall exchange any objections to the instructions and special verdict forms. Prior to, or at the time of the Rule 16-2 meeting, counsel shall meet and confer with the goal of reaching agreement to one set of joint, undisputed jury instructions and one special verdict form. The parties must file proposed jury instructions seven (7) calendar days before the Pretrial Conference. As always, the parties must submit courtesy copies directly to the Court. In addition, the parties must submit electronic versions (either Word or WordPerfect format) to the Court at the following electronic mail address: [email protected]. As noted above, the parties must act jointly to submit proposed jury instructions. The parties must submit one set of agreed upon jury instructions. The parties must submit another set of jury instructions containing the instructions upon which the parties disagree and the objections to those instructions. Where the parties disagree on an instruction, the party opposing the instruction must attach a short (i.e., one to two paragraphs) statement supporting the objection and the party submitting the instruction must attach a short statement supporting the
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instruction. Each statement should be on a separate page and should follow directly after the disputed instruction. Accordingly, the parties ultimately will submit one document or, if the parties disagree over any proposed jury instructions, two documents. If the parties submit two documents, those documents should consist of: (1) a set of agreed upon jury instructions and (2) a set of disputed jury instructions along with reasons supporting and opposing each disputed instruction. The parties should make every attempt to agree upon the jury instructions before submitting them to the Court. In addition, where the Manual of Model Civil Jury Instructions for the Ninth Circuit (2001 edition) provides a version of a requested instruction, the parties should submit the Model instruction. Where California law applies, the Court prefers counsel to use Judicial Council of California, Civil Instructions - ("CACI"). If neither of the above sources has an instruction on the subject, counsel are directed to Edward J. Devitt, et al., Federal Jury Practice and Instructions (4th ed. 1987 & Supp. 1995). Each requested jury instruction shall cover only one subject or principle of law and shall be numbered and set forth in full on a separate page, citing the authority or source of the requested instruction (except for the jury copy discussed infra at 26). The Court will send a copy of the jury instructions into the jury room for use by the jury during deliberations. Accordingly, in addition to the file copies described above, the parties shall file with the Courtroom Deputy Clerk on the first day of the trial a "clean set" of joint and/or proposed jury instructions which contain only the text of each instruction set forth in full on each page, with the caption "Courts Instruction Number " (eliminating
titles, supporting authority, indication of party proposing, etc.). This will be referred to as the "Jury Copy" of the jury instructions. Counsel shall provide the Court with a CD-ROM containing the proposed jury instructions, in WordPerfect or Word, along with the hard copy, no later than the first day of trial.
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An index page shall accompany all jury instructions submitted to the Court. The index page shall indicate the following: ! ! ! ! The number of the instruction; A brief title of the instruction; The source of the instruction and any relevant case citations; and The page number of the instruction.
EXAMPLE: Number 1 Title Burden of Proof Source 9th Cir. 12.02 Page 7
Joint Statement of the Case Counsel shall prepare a joint statement of the case which will be read by the Court to the prospective panel of jurors prior to the commencement of voir dire. The statement should not be longer than two or three paragraphs. The statement shall be filed with the Court seven (7) calendar days before the Pretrial Conference.
Matters to be Discussed at the Pretrial Conference Counsel shall be prepared to discuss the following matters with the Court at the Pretrial Conference: ! the witnesses all parties intend to call during their respective cases, and the amount of time necessary for direct and cross examination of each witness; ! ! any anticipated problems in scheduling witnesses; any evidentiary issues, including anticipated objections under Rule 403, and objections to exhibits; ! ! jury selection procedures; all pretrial motions, including motions in limine, to bifurcate and to sever;
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any disputed jury instructions, and the form of the instructions which will be given to the jury at the outset of the case, i.e., before opening statements and presentation of evidence;
whether any counsel intends to use any evidence or demonstrative aid in opening statement; and
motions to exclude witnesses from the courtroom during trial testimony.
If counsel for any party need to arrange for the installation of its own equipment, such as video monitors, tape or compact disk players, notebooks or overhead projectors, counsel shall notify the Courtroom Deputy Clerk no later than 4:00 p.m. two (2) days before trial so that the necessary arrangements can be made.
The Court sets firm trial dates. Counsel shall arrive at the Courtroom not later than 8:30 a.m. each day of trial. The Court reserves the time from 8:30 to 9:00 a.m. to handle legal and administrative matters outside the presence of the jury. The trial will commence promptly at 9:00 a.m. Counsel shall anticipate matters which may need discussion or hearing outside the presence of the jury and to raise them during this period. The Court is in session with the jury on Tuesdays through Fridays, 9:00 a.m. to 4:30 p.m., with a morning and an afternoon break and a lunch recess from approximately 12:00 to 1:15 p.m. In most cases, jury selection is completed on the first morning of trial, and counsel should be prepared to give opening statements and begin presentation of evidence immediately thereafter. All counsel are asked to observe the following practices during trial: ! All counsel, defendants, and parties shall rise when the jury enters and leaves the courtroom. ! Counsel shall stand when addressing the Court, including when objecting to opposing counsel's questions.
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When objecting, counsel should state only "objection," and the legal ground for the objection (e.g., hearsay, irrelevant, etc.). Counsel should refrain from arguing the legal basis for the objection unless permission is granted to do so.
Counsel must seek leave to approach the Courtroom Deputy Clerk or the witness, and should question witnesses while standing at the lectern.
Counsel must address all witnesses, including their clients, by the witness's surname. Young witnesses, i.e., children younger than age 15, may be addressed by first names, however.
! !
Counsel shall not discuss the law or argue the case in opening statements. Counsel shall address all remarks to the Court, and should not directly address the Courtroom Deputy Clerk, the Court Reporter, opposing counsel or the jury (except in opening statement and closing argument). Counsel must ask the Court for permission to talk off the record in order to speak with opposing counsel.
Counsel shall not make an offer of stipulation unless he or she has conferred with opposing counsel and believes that the stipulation will be accepted. Any stipulation of fact will require the defendants personal concurrence and shall be submitted to the Court in writing for approval.
While Court is in session, counsel may not leave the counsel table to confer with witnesses, colleagues or assistants in the back of the courtroom unless the Court grants permission to do so in advance.
When a party has more than one lawyer, only one of the lawyers may conduct the examination of a given witness and only that same lawyer may handle objections during the testimony of that witness.
If a witness was on the stand before a recess or adjournment, counsel shall have the witness back on the stand and ready to proceed when Court resumes.
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If there is more than a brief delay between witnesses, the Court may deem that the party has rested.
The Court attempts to cooperate with witnesses and will, except in
extraordinary circumstances, accommodate them by permitting them to be examined out of sequence. Counsel should discuss any scheduling issues with opposing counsel. If there is an objection, confer with the Court in advance.
Trial Preparation for Court Trials Fourteen (14) calendar days before the trial date, each party shall prepare and serve on opposing counsel copies of the proposed Findings of Fact and Conclusions of Law. Each party shall review the other partys proposed Findings and Conclusions and make such changes in the partys own proposed Findings and Conclusions as necessary following such review. Seven (7) calendar days before the trial date, each party shall lodge two copies of its proposed Findings of Fact and Conclusions of Law with the Court, also serving other parties if changes have been made. The parties shall be prepared to submit to the Court, and to exchange among themselves, supplemental Findings of Fact and Conclusions of Law during the course of the trial.
Internet Site Counsel are encouraged to review the Central Districts website for additional information. The address is http://www.cacd.uscourts.gov.
The Courtroom Deputy Clerk is ordered to serve a copy of this Order personally or by mail on counsel for all parties to this action. IT IS SO ORDERED. July 24, 2009 VIRGINIA A. PHILLIPS United States District Judge
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PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-8425-VAP (Ex) Date: July 24, 2009
Title: LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA, et al. ================================================================ PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER DENYING DEFENDANTS' REQUEST REGARDING DISCOVERY (IN CHAMBERS)
The Court has received and reviewed the parties' Joint 26(f) Report ("Report"), submitted in anticipation of the Scheduling Conference conducted on July 6, 2009. In it, Defendants United States of America and Secretary of Defense Robert M. Gates ("Defendants") contend they should be exempt from certain provisions of Rule 26 of the Federal Rules of Civil Procedure as Plaintiff Log Cabin Republican ("Plaintiff") brings facial, rather than as-applied, substantive due process and First Amendment challenges to 10 U.S.C. section 654, the "Don't Ask Don't Tell" ("DADT") policy. Having considered the Report and the arguments advanced at the Scheduling Conference, the Court DENIES Defendants' request and issues the attached Civil Trial Scheduling Order. Neither party has been able to cite authority directly addressing the propriety of exempting a defendant from discovery where a facial substantive due process or First Amendment challenge has been brought. According to Defendants, who urge a departure from the right to discovery set forth in the Federal Rules, rational basis review under the Equal Protection Clause is a deferential
MINUTES FORM 11 CIVIL -- GEN
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standard of review, under which the Court is not to second-guess Congressional choices. The cases Defendants cite, however, neither address discovery nor the constitutional claims now before the Court; the Court has dismissed Plaintiff's Equal Protection Claim on Defendants' motion. (See Report 2-3 citing FCC v. Beach Communications, 508 U.S. at 313, 315 (equal protection challenge to cable regulations); Heller v. Doe, 509 U.S. 312, 320 (1993) (equal protection challenge to law regarding commitment of mentally retarded persons); Western and Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 671-72 (1981) (equal protection challenge to taxation of insurance companies); Vance v. Bradley, 440 U.S. 93, 111 (1979) (equal protection challenge to Foreign Service mandatory retirement age); Lenhahausen v. Lake Shore Auto Parts Co., 401 U.S. 356, 366 (1973) (equal protection challenge to taxation of corporations versus natural persons); U.S. v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996) (equal protection challenge to disparity in sentencing guidelines relevant to "cocaine" and "cocaine base"); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989) (equal protection challenge to Sunday closing law).) Defendants urge the Court to find "a determination made in the context of equal protection" "applies generally to both equal protection and substantive due process." (Report 4 (discussing Philips v. Perry, 106 F.3d 1420, 1429 (9th Cir. 1997) (upholding predecessor to DADT policy on equal protection grounds).) Lawrence v. Texas does not support this contention. In Lawrence, the Supreme Court granted certiorari as to both substantive due process and equal protection challenges to Texas's sodomy law but granted relief pursuant only to petitioners' substantive due process claim, acknowledging the equal protection claim as a "tenable" "alternative argument." 539 U.S. at 574. Had a finding in one sphere mandated relief in the other, Lawrence would have so stated. Accordingly, the Court does not find Perry's equal protection holding forecloses relief, or discovery, for Plaintiff's substantive due process claim. Plaintiff cites the holding of U.S. v. Carolene Products, 304 U.S. 144 (1938) that "a statute predicated upon the existence of a particular state of facts may be challenged upon showing to the court that those facts have ceased to exist." Id. at 153 citing Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924) (concerning challenge to a rent control law enacted in response to a housing crisis when the crisis ceased to exist).) Plaintiff argues it needs to, and is entitled to, conduct discovery in order to mount the sort of challenge described in Carolene Products, i.e., that the conditions described at 10 U.S.C. section 654(a) have "ceased to exist." See Carolene, 304 U.S. at 153; (Order Denying Part and Granting in Part Motion to Dismiss 6-7 (quoting Congress' factual findings).) Although the other, out of circuit, authorities Plaintiff relies on, including Dias v. City and County of Denver, 567 F.3d 1169 (10th Cir. 2009), are not particularly persuasive here, the Court
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finds Plaintiff is entitled to conduct discovery in this case to develop the basis for its facial challenge. IT IS SO ORDERED.
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PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-8425-VAP (Ex) Title: Date: November 24, 2009
LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED STATES OF AMERICA, et al. =============================================================== PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER DENYING MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL AND FOR STAY (IN CHAMBERS) [Link & Term Doc. No. 93]
ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS:
The "Motion to Certify Order for Interlocutory Appeal and Stay of Proceedings Pending Resolution of Motion and Appeal" ("Motion) filed by Defendants United States of America and Robert Gates ("Defendants") came before the Court for a hearing on November 16, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, the Court DENIES the Motion.
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CV 04-8425-VAP (Ex) LOG CABIN REPUBLICANS, a non-profit corporation v UNITED STATES OF AMERICA, et al. MINUTE ORDER of November 24, 2009
I. BACKGROUND Through this action, Plaintiff Log Cabin Republicans ("Plaintiff") challenges the federal government's policy of "don't ask, don't tell" ("DADT Policy") with respect to homosexual members of the armed forces. A more complete recitation of Plaintiff's claims is set forth in the Court's June 9, 2009 Order. On June 12, 2006, Defendants filed a motion to dismiss Plaintiff's First Amended Complaint. On June 9, 2009, the Court granted in part and denied in part Defendants' motion to dismiss. On July 24, 2009, the Court allowed Plaintiff to proceed with discovery in this action. On October 16, 2009, Defendants filed this Motion, seeking an order certifying the Court's June 9, 2009 for interlocutory appeal and a stay pending resolution of this Motion and appeal. Plaintiff's Opposition and Defendants' Reply were timely filed. II. LEGAL STANDARD The general rule is that an appellate court does not review a district court ruling until after entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1978). A district court may certify for appeal an otherwise non-appealable order, however, when the "order involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b). Section 1292(b) creates an exception to the general rule that appeals may be taken only from final judgments. See James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002); In re Cement Antitrust Litig., 673 F.2d 1020, 102526 (9th Cir. 1982). Only in rare and extraordinary cases should district courts grant motions brought under Section 1292(b) for interlocutory appeal. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996); In re Cement Antitrust Litig., 673 F.2d at 1026.
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III. DISCUSSION A. Local Rule 7-3 Plaintiff first argues the Court should deny Defendants' Motion for failure to comply with Local Rule 7-3. (Opp'n at 3:214:28.) Local Rule 7-3 requires moving parties to meet and confer with their opponents at least twenty days before filing most motions, including a motion to certify for interlocutory appeal and for a stay of proceedings. Here, Defendants first notified Plaintiff of their intent to file this motion on October 15, 2009 the day before it was filed. (See Decl. of Aaron A. Kahn Ex. B.) Defendants thus failed to comply with Local Rule 7-3. Though the Defendants argue (1) Plaintiff should have been on notice of their intent to file the Motion because of statements Defendants made in the Rule 26(f) report, (see Reply at 1:1825); (2) the legal issues are identical to those presented in Defendants' motion to dismiss, (see id. at 1:252:5); and (3) the issues raised in the Motion are not susceptible to resolution through the meet and confer process, (see id. at 2:611), none of these claims excuses Defendants' failure to comply with Local Rule 7-3. Local Rule 7-3 requires more than mere notice of a party's intent to file a motion, it requires parties "to discuss thoroughly . . . the substance of the contemplated motion." Mere notice of a party's intent to file a motion is insufficient to comply with Local Rule 7-3. Furthermore, the legal standards applicable to motions to certify for interlocutory appeal and for a stay vary from that applicable to a motion to dismiss; therefore the Motion necessarily does not present the same legal arguments raised in Defendants' motion to dismiss. Finally, Local Rule 7-3 does not permit parties to ignore its requirements by unilaterally deciding that issues are not susceptible of resolution. The authority relied on by Defendants is not to the contrary. See Stewart v. Wachowski, No. CV03-02873, 2005 WL 6186374, at *10 (C.D. Cal. June 14, 2005) (moving party complied with Local Rule 7-3 by sending a meet and confer letter more than 20 days before filing its motion); In re Heritage Bond Litig., 220 F.R.D. 624, 626 (C.D. Cal. 2004) (addressing party's compliance with Local Rule 37-1, applicable to discovery motions, not Local Rule 7-3, and noting that there was no actual dispute about which to meet and confer).
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Nevertheless, despite Defendants' failure to comply with Local Rule 7-3, the Court will consider the Motion. Any future failures to comply with Local Rule 7-3 by counsel for the government will be met with an award of sanctions, and the Court may decline to consider such motions. B. Defendants' Motion is Untimely and Would Not Expedite This Action Defendants argue the Court's June 9, 2009 Order involved controlling issues of law as to which there is a substantial ground for difference of opinion, and an interlocutory appeal will materially advance the ultimate resolution of this action. As the Court finds Defendants have delayed unjustifiably in seeking certification of the subject order and interlocutory appeal would not advance materially the resolution of this action, the Court does not address Defendants' argument that the subject order involved controlling issues of law as to which there is a substantial ground for difference of opinion. Section 1292(b) provides that the Court may certify its June 9, 2009 order for interlocutory appeal if, in the Court's view, an immediate appeal would materially advance the ultimate termination of the litigation. Defendants' Motion, however, is anything but immediate. Defendants waited more than four months to file the Motion, and apparently only did so after being served with discovery requests by Plaintiff. Defendants offer no persuasive explanation for their delay, arguing only that they "sought certification within a month of receiving plaintiff's requests for production of documents on September 21, 2009." (Reply at 3:274:1.) The date on which Plaintiff served discovery requests is irrelevant. Defendants had been aware of the subject order for more than four months and of the Court's order allowing discovery to proceed for nearly three months at the time they filed the Motion. Defendants' unexplained delay in seeking certification of the Court's June 9, 2009 Order belies its contention that its objective is to expedite this action. Defendants further fail to establish that certifying the June 9, 2009 Order for appeal would advance materially the ultimate termination of the litigation. Instead of demonstrating how an interlocutory appeal would lead to a more efficient resolution of this action, Defendants merely argue that the discovery sought by Plaintiff is burdensome and unjustified. (See Mot. at 12:613:8; Reply at 3:117:9.) The MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk: jh-relief Page 4
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proper means of challenging the nature and scope of discovery requests is by serving objections to those requests, however, not by seeking an interlocutory appeal.1 Defendants do nothing to demonstrate that an appeal is likely to lead to a more expedient resolution of this action than allowing it to proceed according to its current pre-trial schedule. Standing alone, a showing that discovery may be burdensome is insufficient to meet Defendants' burden. As Plaintiff notes, rather than advancing the ultimate termination of this action, an appeal at this time is likely to delay it. (Opp'n at 7:78:2.) C. A Stay of This Action Is Inappropriate Defendants separately argue that the Court should stay these proceedings because the President of the United States has indicated he supports repeal of the DADT Policy and because Congress intends to hold hearings concerning "the continued wisdom" of that policy. (Mot. at 13:922.) Upon transfer of this case to this Court, the Court inquired of defense counsel regarding the Defendants' position regarding their intentions regarding the continued defense of this action; defense counsel responded that its instructions to defend the case had not changed. Not until served with discovery has the defense informed the Court of a change, or potential change, in its position. Furthermore, Defendants cite no authority for the proposition that district courts should stay litigation concerning the constitutionality of federal laws for an indefinite period merely because the legislative and executive branches have expressed doubts concerning the continued wisdom of the challenged laws. Indeed, such a rule would allow Congress effectively to insulate federal laws from constitutional challenge merely by continually holding hearings concerning those laws. This Court declines to adopt such a rule, and finds that Defendants have not demonstrated that a stay of this action is appropriate.
Plaintiff notes the deadline for Defendants to respond to these requests for production was October 20, 2009 and Defendants failed to serve a response or seek an extension of time respond. (Opp'n at 3:1620.) MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk: jh-relief Page 5
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IV. CONCLUSION For the foregoing reasons, the Court DENIES Defendants' Motion. IT IS SO ORDERED.
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION - - HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING - - LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OF AMERICA, ET. AL., ) ) Defendants. ) ___________________________________)
No. CV 04-8425-VAP(Ex) STATUS CONFERENCE
REPORTER'S TRANSCRIPT OF PROCEEDINGS 14 Riverside, California 15 Thursday, February 18, 2010 16 9:07 A.M. 17 18 19 20 21 22 23 24 25 THERESA A. LANZA, RPR, CSR Federal Official Court Reporter 3470 12th Street, Rm. 134 Riverside, California 92501 (951) 274-0844 WWW.THERESALANZA.COM
Thursday, February 18, 2010
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1 2 3 4 5 6 7 8 9 10 On behalf of Defendants: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DEPARTMENT OF JUSTICE BY: Paul G. Freeborne 20 Massachusetts Avenue, NW Room 6108 Washington, DC 20001 202-353-0543 WHITE & CASE BY: Dan Woods BY: Patrick Hagan 633 West Fifth Street, Suite 1900 Los Angeles, California 213-620-7772 On behalf of Plaintiff: APPEARANCES:
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I N D E X Page Status Conference................................. 4
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Riverside, California; Thursday, February 18, 2010; 9:07 A.M. -oOoTHE CLERK: Calling item one, case number CV
04-8425-VAP, Log Cabin Republicans versus the United States of America, et. al. May we have counsel please come forward and state your appearances for the record. MR. FREEBORNE: Paul Freeborne on behalf of the
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United States and Secretary Gates. MR. WOODS: Dan Woods and Patrick Hagan, White &
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Case, for plaintiff, Log Cabin Republicans. THE COURT: Thank you. Good morning.
Counsel, I put this matter on the calendar for a status conference to talk primarily about the issue of the progress towards the trial date, which is June 14th, and also just to inform you about the status of the request made on behalf of the plaintiffs for participation in the Ninth Circuit's pilot project. I'll take up the latter issue first,
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because that will not require much time. There was a letter request submitted by counsel on behalf of the plaintiffs which I think was directed, if I recall correctly, to Chief Judge Collins and I believe a copy to defense counsel. You've received that? MR. FREEBORNE: We have, Your Honor.
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THE COURT: Judge Kozinski.
Also a copy to myself and to Chief
For two reasons, at least, for two reasons, although I considered the request -- and if it had not been for the two reasons I'm about to get to, I would have, of course, sought a formal response from the defense -- I don't think this case is -- well, it's not that this case is or is not appropriate, but there are two impediments, as I see it, for any case to participate in the pilot project. The first is because of the
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decision by the United States Supreme Court affecting I guess you'd call it the mechanics of the pilot project as it stands now -- that is, putting a stay on the one case in the northern district of California which had been selected for participation in the pilot project -- it seems to me that until the issues identified by the Supreme Court are resolved by further order from the Ninth Circuit resolving some of the issues with respect to the changes in the local rules that were required in the northern district and would be required in the central district before any court could participate, because our local rules, like the northern district's local rules at the time, prohibiting any photographic or videotaping of proceedings would have to be changed. There are various other -- mechanical is not quite the right word, but there are various other issues in the pilot project that came to light during the first trial that
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participated in it.
And until, as I understand it, the Ninth
Circuit is trying to make some changes to resolve some of the issues that came to light during the attempts to film the Proposition 8 trial, and also, of course, the issues that caused the Supreme Court to issue a stay, such as whether it's the responsibility of the Court set up and be responsible for the equipment -- that is, all the equipment that would allow the taping to go forward -- or whether it's simply a matter of making the courtroom accessible to any news media that wanted to bring in their own equipment to unobtrusively film the proceedings -- until those issues are further resolved by the circuit, and then, until if and when our court changes its local rules, it's not appropriate or possible to proceed with the request; so that's the status of the request by the plaintiff. But it has been considered. Now, the second and more pressing issue is the trial date. I have checked the docket. Since the parties were
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last here, I have seen no activity on the docket before Judge Eick on discovery matters, so I assume that the discovery has proceeded forward with the parties, the discovery that was discussed at the last hearing, since I have not seen you going before Judge Eick. Given the public announcements from the administration regarding the changes in the position about the
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policy that's at issue in this case, I would ask the government to tell me what its position is with respect to the defense in this lawsuit and whether or not it has any different position with respect to the defense of the lawsuit. MR. FREEBORNE: Starting with the defense, we Obviously with the testimony,
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continue to defend the statute.
there are things to bring to the Court's attention. First, as the Court noted, during the State of the Union address, the President committed to working with Congress to repeal the statute; and then on February 2nd, there was testimony heard from both Secretary Gates as well as Admiral Mullen on both interim measures that are being undertaken as well as long-term measures that are being undertaken. If I could start with the short-term measures.
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It is anticipated within 45 days of the testimony that was provided on February 2nd that revised regulations will be promulgated by the Department of Defense. THE COURT: That puts us at the middle of March. That's right.
MR. FREEBORNE: THE COURT:
Forty-five days would be March 17th. That's right, Your Honor. We believe that a stay of
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MR. FREEBORNE:
I will cut to the chase.
this case is appropriate to see what changes are effectuated through those regulations. I would remind the Court that plaintiff's case is the
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facial challenge, not only to the statute but to the underlying regulations. If those regulations are altered, it will
fundamentally change the nature of this case. To give you one concrete example, Mr. Nicholson, who's the one member that plaintiff has identified, he alleges in his declaration that he was outed by a third party. In the
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testimony heard on February 2nd, Secretary Gates noted that issue is being examined, among others, and the revised regulations; so if we have those regulations, it could alter both the standing and it could also alter whether or not even there's a viable case here; so it seems prudent at this juncture to stay the case to see what comes of the regulations in the review that's being undertaken by the Secretary. In the long term, as both Admiral Mullen and Secretary Gates noted at the February 2nd hearing before the Senate Armed Services Committee, a working group has been instituted within the Department of Defense to look at issues that should be ironed out if a repeal is implemented by Congress, to look at those issues and attempt to effectuate a smooth transition. But again, I want to highlight the regulations, that they -- that's within 45 days of the February 2nd hearing. Your Honor, I would also note, just to speak to discovery, for example, on Friday we just received deposition notices for both Secretary Gates and Admiral Mullen. There
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have been, now, discovery requests for documents that relate to the deliberative processes of the DOD as it relates to their attempts to repeal the statute; so there's now a bleeding in of this case into the political issues. And with all due respect,
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we would ask that the Court allow the political process to work its will here and not have this case interfere with that political process long-term. Again, short-term, we think a 60-day stay is appropriate in light of the regulations which could fundamentally alter the nature of this facial challenge. THE COURT: have been noticed? MR. FREEBORNE: There are some 30(b)(6) notices that, Are those the only two depositions that
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again, as to their -- we have objected to the 30(b)(6) notices. We will have motions practice on that. They ask, among other things -- well, a lot of the issues that are now being considered by this task force, for example, the experience of foreign nations that DOD to-date has not formally studied, that will be looked at by the task force to see what has been the experience of foreign nations in incorporating gay and lesbian service members into their armed services and allowing them to openly serve. That's one of the issues that is, again, the subject of the 30(B)6 notice that we've objected to; that's now being considered by the task force that's been established by -09:18 09:17 09:17
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THE COURT: Department of Defense?
And it's a 30(b)(6) notice to the
MR. FREEBORNE:
It is.
It's to the United States, but DOD would be the responding agency. So those are the things that we were glad to see that the Court called this status conference, particularly after the statements. There has been a lot of movement, both in terms of the State of the Union remarks by the President, and, as I noted at the February 2nd hearing, that could fundamentally alter this case, if not moot it. THE COURT: Mr. Woods? MR. WOODS: Thank you, your Honor.
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All right.
Thank you.
Since we were here in November, we have been working very hard to comply with the Court's scheduling order and to get this case ready for trial in June; so, yes, we have served discovery on the defendants, as we would be expected to do, and we are in the middle of discovery disputes with the defense on some of these things. We have also complied with the Court's order by designating expert witnesses. THE COURT: And I noted that the parties submitted a
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stipulation to continue the deadline for that, which I
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approved, back in January. MR. WOODS: And we timely, after the brief extension,
submitted expert materials to the government, and the government has scheduled the depositions of all of the experts that we designated. THE COURT: for? MR. WOODS: The first one is next Friday in New York; And when are those depositions scheduled
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they follow the week after that in the Bay Area, and the week after that in the District of Columbia. THE COURT: MR. WOODS: THE COURT: And how many experts have you designated? Seven. How many has the government designated? As we indicated at, I believe, the
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MR. FREEBORNE:
July status conference, we intend to rely upon the statute and legislative history in response to the facial challenges. THE COURT: So none. So none.
MR. FREEBORNE: MR. WOODS:
Let me also, your Honor, talk about our

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perspective on the recent State of the Union address and Senate hearing. Despite what you read in the newspapers about those positions taken by the government, the government in our lawsuit continues to fight the lawsuit vigorously. For
example, your Honor, the State of the Union address occurred on
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January 27th.
One day later, January 28th, we were served with
objections to a set of requests for admissions that we had served on the government. One day after the State of the Union
address, the government served us, plaintiff, Log Cabin Republicans, with a set of interrogatories, a set of document requests, and a set of requests for admissions. Two days after
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the State of the Union address, i.e. January 29th, the government served us with objections to the 30(b)(6) deposition notice we had served on the defendant. I note in that regard,
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Your Honor, that the defendant has refused to produce any witness in response a 30(b)(6) deposition notice on any subject listed in the notice, and we expect to have cross-motions about that to be filed soon. You may recall when we were here in November, we also had discussions about our document requests to the government and the government's lack of a timely response to those document requests. Following the November hearing, we have met
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and conferred with the government about narrowing the requests; we have narrowed them to the extent we thought was appropriate. Despite the government's untimely objections, the government has produced some documents, but the government continues to withhold responsive relevant documents; so we have anticipated a motion to compel further responses to the government about that. Since the State of the Union address, the government
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has noticed the depositions of our expert witnesses and has noticed the deposition of Mr. Nicholson as well. So the government, Your Honor, despite the State of the Union address and whatever comments were made at the Senate hearing on February 2nd, is continuing to defend the lawsuit vigorously. We also are well aware of what the Department of Defense and the Chairman of the Joint Chief of Staff said at the Senate hearing. And yes, counsel is right that there is an
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interim review being done and a longer-term review being done. Neither of these things should have any impact on our case, Your Honor. The long-term analysis of this, your Honor, by our calculations, will take at least two years more, probably two and a half years more. Let me explain why I say that. At the
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February 2nd hearing, Secretary Defense Gates said that he wanted this study about "Don't Ask, Don't Tell" to be completed by the end of this calendar year; so by the end of 2010, the military working group will have produced a study. Now, that's a study. Congress has to decide whether to repeal the statute or not. There's no doubt about that, because, again, Secretary Gates said to the Senate hearing that "the ultimate decision rests with you, the Congress."
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So we don't know, of course, how long it would take the Senate to analyze whatever report is produced by the end of the calendar year 2010. But if we assume, for example, that it
takes six months, that takes us to June 2011. THE COURT: I'm sorry.
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The study could be completed by December 2010, as a
MR. WOODS: THE COURT:
Right. And then it goes to Congress.

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So what are you saying happens in the six months? MR. WOODS: That maybe Congress will --
THE COURT: -- will act in six months. MR. WOODS: Maybe. That's optimistic, I would say.
And then, according to Secretary Gates again, it would take at least a year to implement any change that Congress made. So even if you assume that Congress can act in six months, we're not talking about any fundamental change until, at the earliest, the middle of 2012, more than two years from now. And that also assumes that Congress acts to repeal the As you may have read
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statute, which, of course, is very iffy.
in the Senate hearing, there was opposition to the President's new position from various senators. As you know, there's an election in November that could change, fundamentally, the composition of the Senate, and
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that could change how Congress views any effort by the President to repeal the statute; so this is all very iffy in the long-term basis. But even if there was any repeal to the statute, it was not going to take effect until, at the very earliest, more than two years from now, and more than two years after the trial. In the meantime, during that period, there is no They
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moratorium on discharges of gays and lesbians serving. will continue to be discharged. anything about that underway now.
There is also no effort to do

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When Counsel and I talked about possibly a stay of this case, I asked about a moratorium. That has been rejected.
I asked about the possibility that during any stay period, there might be a slightly different standard applied. words, what I suggested to Counsel was the following: before any gay or lesbian member of our armed forces be discharged during any stay period, the government be required to prove that that person's homosexuality had a negative impact on unit cohesion or troop morale. It would be similar to the
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In other That
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standard adopted by the Ninth Circuit in the Witt case with which you are familiar; so that before anybody could be discharged, there actually had to be some showing of a negative impact on unit cohesion or troop morale in any stay period. The government is not agreeable to that either. So in this period of time when the government is
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thinking about changing the policy, your Honor, gay and lesbian soldiers, sailors and others will continue to be discharged and harmed by what we believe to be this unconstitutional policy. Now, yes, there is some opportunity here for the case and politics to bleed together, and that is because, among other things, the Chairman of the Joint Chief of Staff said to the Senate on February 2nd that there was no evidence of which he is aware to support the proposition that the policy protects unit cohesion or troop morale, the stated purpose of the policy in the statute. The government's own leading enforcer of this
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policy admits that there is no evidence to support it, and we believe that is a damning admission to the government's position that we can use at the trial. Now, we can't help that the politicians are involved in this at the same time that we're preparing a case for trial. We didn't do that, they did that; so that really should not matter. With regard to this notion of a short-term stay of 60 days, I'm opposed to that for all of the reasons that I just mentioned. There is no indication of what is going to change We don't know yet. The only thing that
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in these regulations.
was discussed was that discharges would have to be approved by somebody at a higher level of authority, and investigations could be started only by somebody at a higher level of authority. That's the only change that is being discussed in
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this 45-day period.
It doesn't alter the fact that patriotic
gay and lesbian members of our armed forces, who are fighting and dying in two wars today, will continue to be negatively impacted by this policy while the government continues to study it. Your Honor, we had the same discussion back in November when the government was trying to stay the case then. Your order denying the stay at that time made perfect sense, and it continues to make perfect sense, even putting aside the fact that the government has not moved for a stay, which it really ought to do if it thinks a stay is appropriate. But
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back in November, you pointed out that the defendants, quote, "Cite no authority for the proposition that district courts should stay litigation concerning the constitutionality of federal laws for an indefinite period merely because legislative and executive branches have expressed doubts concerning the continued wisdom of the challenged laws. Indeed, such a rule would allow Congress effectively to insulate federal laws from constitutional challenge merely by continually holding hearings concerning those laws. declines to adopt such a rule." Your Honor, that's what you said in November. think it's right. I think it still applies. Well, first of all, I think there are two
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This Court
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THE COURT:
important things to discuss based on what you have both just
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argued.
And let's start with the -- of course it's a very
effective technique -- and by 'technique,' I don't mean that -it's a very effective way to argue to quote back the judge's own words, because you put me in a position of having to, if I'm going to try to disagree with that, disagree with myself. But since the government has probably wisely asked for at this point a 60-day stay, which is different from an indefinite stay which is the language in the language that you just quoted, I think the first thing to consider is whether a stay of 60 days makes any sense. So the first thing I'm wondering, as I listen to both of you, is whether anything -- I'm not inclined to issue an indefinite stay. If there is a stay, it should be for a
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definite term; and that's not to say that I have decided that there should be one. In terms of thinking about whether a stay for a definite period of time would be appropriate or would make sense, looking back at the timeline that you just argued about how long it would take before a decision is made by Congress, the defense's argument is that in the long-term we're talking about at least two and a half years after our trial date. problem I have with that amount with the timeline that you predict is this: I think it's a conservative timeline. That The
09:32 09:32
is, I think it's optimistic. I agree with you that the study would be completed by
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December of this year; a decision by Congress, say, in six months, which puts us at June 2011; and then a year to implement. It's that last year part that's... If this case goes to trial in June -- and there's every reason to believe you'll start on the date that I have given you, or very shortly -- there's no reason to think you will not start on June 14th, because this is an old case and you should get priority on my calendar -- and then it will take me some time to do a decision after the trial -- but just assuming, for the purposes of argument alone, the decision is in the plaintiff's favor, it's still going to take time to implement. Your assumption here is that the time to implement, if Congress changed the regulations and abolished the statute, is somehow longer than it would take if the Court's ruling had a similar effect, and I think that's a false proposition. MR. WOODS: I don't agree with that, your Honor.
09:34 09:33 09:33
I think at the end of a court trial in this case, we will ask you to issue a permanent injunction; that's part of the remedy we'll ask you for. We will ask you to enjoin the
09:34
government from enforcing its unconstitutional "Don't Ask, Don't Tell" policy immediately. THE COURT: That's what we're asking for.
I understand that.
I understand the relief you're seeking in this case, and I hesitate to draw this analogy, so I'm trying to think of
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a different one, but whenever a policy of large proportion is changed, I think it's overly optimistic to think that one order issued from one court means that enforcement is unambiguous and occurs overnight. Certainly, I have no idea yet even if, of course, the plaintiffs will prevail, but the words that come to mind are 'all deliberate speed.' And I don't think that enforcement or
09:35
nonenforcement of this policy would be as complex as what's faced other courts in other contexts. But if you're predicting that it would take one year to implement a change if Congress repeals the regulations, then I don't see why it would be an overnight change if it's a court order. MR. WOODS: Your Honor, with respect, I think you're I mean, I do recall from
09:36 09:35
underestimating your own powers.
personal experience as a law clerk to another federal judge some years ago, my first day on the job, the judge declared an act of Congress unconstitutional, and it stopped that very day. And there were appeals and such, but in the meantime, the judge's order became, in effect, the law of the land. And
09:36
that's what we're asking this Court to do in a very different context. I don't think that there is any possible way of resolving this without causing the continued harm to Americans in the position that we're representing.
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I would have been accommodating to the government if the government had been willing to agree to stay discharges pending a stay period or even if they had adopted the Witt standard from the Ninth Circuit on a national basis. That
09:37
would make sense, Your Honor, because in the meantime, people -- if the President is really interested in repealing the law -- would have the opportunity to study it, implement it; but in the meantime, no one would be harmed by the current law. So that, I thought, made sense. interested. But the government is not
So in the meantime, people are harmed. Which brings me to the next question
09:37
THE COURT:
which is that if there is a stay for a finite period of time, and the government's request is 60 days, if in that 60-day period, there is a change in the -- and I don't mean 'the government' meaning the defendant in this case or the defense in this case, but the government in the sense of the Department of Defense's implementation of the policy -- if there's a moratorium that is adopted, not as a part of this litigation, but then it seems to me that, to me, is the most compelling reason for a short stay over a finite period of, say, 30 to 60 days to see if in that period the Department of Defense, in connection with the study that it's undertaking, enacts a moratorium. MR. WOODS: I'm sorry, your Honor, but
09:39 09:38 09:38
Secretary Gates at the very second hearing said that there
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would be no moratorium.
And I suggested this to Mr. Freeborne,
who agreed that there would be no moratorium during this 45-day stay period and that that is not something the government is thinking about. THE COURT: Well, that 45-day period, that's the
09:39
45-day period that ends on March 17th. MR. WOODS: Right. But they are not thinking about a The only thing, according to
moratorium in this 45-day period.
the testimony before the Senate, that is under consideration is elevating the level, the rank, if you will, of an officer who considers discharge proceedings and whether a higher level of officer or a higher-ranked person is required to initiate an investigation; so these are very, very minor changes that do not impact the status of the thousands of gay and lesbian members of our armed forces fighting for our country today. MR. FREEBORNE: Your Honor, could I be heard on that
09:40 09:39
issue, because I'd like to read in, actually, the testimony of Secretary Gates. This was in response to a question from
Senator Levin, and he outlined what issues are being considered. And just so I'm clear, these issues are being
09:40
considered, just so we're all on the same page about things that are being considered. He was asked the question of what would be undertaken during this 45-day review period, and he said "We can raise the level of the officer who was authorized to initiate an
09:40
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inquiry."
That's what Mr. Woods just alluded to.
"We can
raise the level of the officer who conducts the inquiry; we can raise the bar of what constitutes credible information to initiate an inquiry; we can raise the bar on what constitutes a reliable person on whose words and inquiry can be initiated." And it goes on: "Overall, we can reduce the instances in which
09:40
a service member who is trying to serve the country honorably is outed by a third person with a motive to harm the serviceman." Then he goes on to talk about Witt, and states
09:41
"We also have to devise new rules and procedures in light of the Appeals court decision in Witt versus the Department of Air Force for the areas of the country covered by the Appellate court." That is what's being considered. issues that are being considered. Those are the
Whether any of those will But that, just so
09:41
ultimately be implemented, we don't know.
we're all on the same page about the breadth of the issues, is not what Mr. Woods just stated; it's much broader. Which, again, their challenge is a facial challenge to the statute and regulations. complaint. One needs only to look at the If
09:41
They draw, in large part, from the regulations.
those regulations change, I would argue they have to amend their complaint and file a new lawsuit. THE COURT: The other issue that is of grave concern
09:42
if we move towards a trial date in June is the extent to which
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the discovery, not so much of the expert witnesses that the plaintiff has designated, but -- and let me just stop for a moment there and say, given that there is a discovery cutoff in this case, I cannot really fault the government for propounding discovery and continuing to defend the case vigorously, as the plaintiff has characterized it, at this point. The real issue and the real concern is that the discovery that the plaintiff seeks to do, including the depositions of Secretary Gates and Admiral Mullen and so forth, to a certain extent, is going to call into question not just whether a protective order would issue to quash the deposition notices, but whether the jurisdiction of the Court over this case would be affected because of the constitutional limitation based on the political question. And of course, that has not been briefed and that's almost a brand new issue in this case, given the most recent events, but it seems to me it's another reason why I might want to extend the trial date for a brief period of time. And I do
09:44 09:43 09:42
mean brief, like 30 to 60 days, to allow the parties to brief that issue about any limitations on the Court's jurisdiction because of the impingement of a political question, and see if there's a way to fashion discovery so the plaintiff can take the discovery that it feels it's entitled to do of elected officials, especially if they have made a statement, but yet does preserve the deliberative process which also exists.
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Because those are not issues that are going to be easily resolved in a 30-minute discovery motion hearing. MR. WOODS: Your Honor, this is one of the reasons
why I suggested it; that if there was going to be any request by the government for a stay, that it not come up verbally in the middle of a status conference but, instead, be made by a traditional, formal motion, which the government has not made. Because then we would be able to respond adequately to the points that may come up. THE COURT: I'm going to give both sides -- if I'm
09:46 09:45
inclined to do this, both sides will have a full opportunity, but the earliest that this question is addressed, the better, for both sides. MR. WOODS: I agree.
09:46
And I would also suggest, Your Honor, that if there's any stay under consideration, that it only be a postponement of the trial date, not a stay of the entire case, so that we have time to finish all of the discovery. before we ever get to a trial. MR. FREEBORNE: THE COURT: heard. MR. WOODS: And I would also suggest that if there's May I be heard on that issue? It needs to be done
09:46
Let him finish, and then I'll let you be
going to be any stay considered, that the Court condition any stay on preserving the position of people represented by our
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client. Now, he just read to you part of Secretary Gates' testimony in front of the Senate, but he missed or did not want to read another part of it, which was about moratoriums. Senator Levin asked him whether he would support a moratorium pending this period on discharges, and Secretary Gates said "We will look at it, Mr. Chairman." I will tell you that the advice I have been given is that the current law would not permit that; so they are not going to do a moratorium. If you're going to stay anything in this case, Your Honor, we would ask you to stay it on the condition that either there be a moratorium on discharges or that the Witt standard be applied nationally so that no one could be discharged unless and until there was an actual showing that there was an impact negatively an unit cohesion or troop morale as a result of the service member's homosexuality. Otherwise,
09:47 09:47 09:47
a stay in this case continues to damage the interests of those people fighting for our country today who have been delayed in this unfortunate case for so long already. THE COURT: All right.
09:48
Mr. Freeborne? MR. FREEBORNE: With regard to the last point, this They
09:48
Court's jurisdiction would only extend to this district.
are asking for nationwide relief, which this Court would not
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even have the power to effectuate a nationwide injunction. This is not a class action; this is a case brought within this district. THE COURT: But how in the world could -- if the
09:48
plaintiffs succeed in this case on the relief that they are seeking, are you suggesting that an injunction would be only directed to service members serving within the Ninth Circuit? MR. FREEBORNE: Your Honor, this Court does not have
nationwide jurisdiction to issue an injunction. THE COURT: Are you suggesting that, theoretically,
09:49
if a district court orders that any regulation or federal law is unconstitutional, it only applies in the district where the Court sits? MR. FREEBORNE: issue aside. Well, Your Honor, we can put that
09:49
I just note that I think that -That's because I think you are incorrect. Your Honor, with respect to the
THE COURT:
MR. FREEBORNE:
discovery, as the Court noted, that discovery runs headlong into the political question. They want to depose
09:49
Secretary Gates and Admiral Mullen about their deliberative processes as it relates to their efforts to potentially repeal the statute, which, as the Court indicated, freezes any type of discussion. They want us to designate a 30(b)(6) witness to
testify about matters that, again, are being considered by the task force.
09:50
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Mr. Woods is correct, Secretary Gates said that DOD does not have the authority to effectuate a moratorium. noted the areas that are being examined in the regulatory review process that is being undertaken, and it is anticipated that within 45 days, or shortly thereafter, we will have new regs on the books that could fundamentally alter this case and, as I noted before, plaintiffs' standing to bring the case or whether or not the case is moot. THE COURT: Well, maybe I misunderstood you when you
09:50 09:50
But I
earlier said that 45-day period, which ends roughly on March 17th -- are you predicting that there will be new regulations? MR. FREEBORNE: Your Honor, that's the Secretary's
testimony; that's what's anticipated to happen on that date. Which, as I note, it's reasonable to have a stay now so we can see what those regulations are and see how they affect this case, this very case that the Court has before it. THE COURT: But this case and the complaint in this
09:51
case does not challenge only the regulations. MR. FREEBORNE: No. Without a doubt, it challenges
09:51
both the statute and the regulations; and the regulations, if changes are implemented, will effectuate a change in how it's administered, which affects their -THE COURT: It may, but it may not necessarily moot
09:51
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MR. FREEBORNE:
It may not moot it, but it may
actually moot some of the discovery issues that the Court would otherwise have to address. And I also note the standing issue of Mr. Nicholson, which, again, I'm not here to commit to any regulatory changes but -THE COURT: I understand that.
09:51
And we don't need to get into it, because it may or may not occur. I'm not sure I agree with you about how the
09:52
changes in the regulations could moot the standing of Mr. Nicholson. But we don't need to argue that today. I should note, I think the political
MR. FREEBORNE:
question or some type of a -- the Court deserves to know how it should be able to operate in this environment and also the overarching issues of how this case will ultimately be governed. We had an argument back in July on whether or not we should be looking at continued rationality. Our view, as you
09:52
know, is you look at the type of enactment and you look at the basis upon which Congress and the then-President looked to in enacting this statute, namely privacy and sexual tension. And
09:52
perhaps in conjunction with that briefing, the parties would be aided by knowing exactly what the target is here. We don't believe it's continued rationality, for the legal reasons we set forth in July, but also we run into the
09:53
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difficulties that we have today, where now you have efforts afoot to potentially repeal a statute. This case has the
potential of freezing those types of discussions through the discovery and, ultimately, perhaps thwarting the efforts that plaintiff actually wants to achieve here. THE COURT: broadly. That's the issue.
09:53
Well, I don't view the issue quite that
I think there are issues that could come up in this
case in the context of the discovery that the plaintiff wishes to take that may be subject to either the deliberative process privilege or the political question issue. But the more I hear
09:54
from both sides -- and I appreciate what both of you have argued -- what I'm inclined to do -- and I'm going to take it under submission, and I may ask for briefing from both sides -what I'm inclined to do is probably to continue the trial date for a short period of time and continue the discovery cutoff date, because I foresee that what's probably really necessary here is more time to resolve the issues that I have identified about discovery, but not necessarily to issue a stay at this time. So I will issue a written order. And, as I said, if I'm inclined to order a stay rather than continuing the trial date, I'll ask for further briefing. Or I guess, alternatively, if you want to submit
09:54 09:54
something in writing, both sides, I'll allow you to do that. I'll give both sides ten days in which to submit briefing on
09:55
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those issues. Is that preferable? MR. FREEBORNE: stay of the -THE COURT: I'm not inclined to stay the case. I'm
09:55
So you're not inclined to issue a
inclined to continue the trial date for a short period of time, because I think that what's going to happen is that in the course of preparing for trial, the issues that we've identified about the deliberative process privilege and the political question issues as it relates to the discovery that the plaintiff wants to propound, that's what's going to take up more time. And in the course of that, and depending on what happens with the regulations, which may or may not issue by mid-March, if you feel that -- well, first of all, if the regulations do issue by then, then you can bring a motion if you think there's a real issue that certain parts of the complaint have been made moot. appropriate way to proceed. I think that's a more
09:56 09:55
We don't know if any new

09:56
regulations will issue; we don't know what they'll be; we don't know what the affect of them will be on the status of the case. That's what I'm inclined to do at this point. So if we're talking about a continuance of the trial date for 60 to 90 days, that means we're going to trial in July or August.
09:56
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Does either side have any -- what do your trial calendars look like in July or August? MR. FREEBORNE: August would be preferable, from the
government's perspective, Your Honor. MR. WOODS: We're happy to do it at the earliest
09:57
possible date convenient to the Court. THE COURT: All right.
Do the parties want to submit briefing on the issues before I take the matter under submission, or do you want to have it stand submitted based on your arguments today? MR. FREEBORNE: If I could alert the Court, I'd like I'll let
09:57
to consult with my supervisors back in Washington. the Court know what our preference is. THE COURT: MR. WOODS: Mr. Wood? That's fine, Your Honor.
09:57
I have no problem with a brief on the issue. It may be that in light of this discussion, we might simply withdraw the notices of the depositions of Secretary Gates and Admiral Mullen. THE COURT: And wait and see what happens with the
09:58
issuance of new regulations? MR. WOODS: Yes. I mean, it was never our intention The questions were
to question them about what they are doing.
about the evidence that exists today about the underpinnings of the statute. We're not trying to get into the politics of
09:58
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this.
The politics of this, of course, overtakes the case,
because as it turns out, four years after we filed the lawsuit, the President of the United States, the Secretary of Defense and the Chairman of Joint Chiefs of Staff all today now seem to agree with our position, leaving the government defending the case in a rather awkward position. But I'm happy to submit a brief in ten days to explain to the Court why no stay is necessary and how the discovery will proceed. By that time, we'll also probably have
09:58 09:58
on file one or more discovery motions. THE COURT: All right.
Well, I'm not sure I need further briefing at this point, because I think if any further briefing is necessary, it will come up in the context of discovery motions. I'm still considering whether -- and I have the greatest confidence in Judge Eick, but I have a feeling whatever -- I'm still considering whether or not to vacate the discovery reference. I'll make a decision on that But
09:59 09:59
today; so you may be filing your motions directly here.
unless you hear otherwise, of course, discovery motions are heard before Judge Eick. Thank you very much. MR. WOODS: Thank you, your Honor. Thank you.
MR. FREEBORNE:
(Proceedings concluded.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _____________________________ THERESA A. LANZA, CSR, RPR Federal Official Court Reporter _________________ Date I hereby certify that pursuant to section 753, title 28, United States Code, the foregoing is a true and correct transcript of the stenographically recorded proceedings held in the aboveentitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. CERTIFICATE
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PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-08425-VAP (Ex) Title: Date: March 4, 2010
LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF DEFENSE, in his official capacity ================================================================ PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER RE: STAY OF PROCEEDINGS (IN CHAMBERS)
The Court having considered the arguments of both sides presented at the Status Conference convened on February 18, 2010 regarding a stay of the proceedings in this case, or an extension of the trial date or discovery cut-off date, hereby declines to issue either a stay or any extension. Trial remains set to commence June 14, 2010 at 8:30 a.m. IT IS SO ORDERED. cc: Magistrate Judge Eick MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 1
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CV 04-08425-VAP (Ex) LOG CABIN REPUBLICANS, a non-profit corporation v UNITED STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF DEFENSE, in his official capacity MINUTE ORDER of March 4, 2010
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL
Case No. CV 04-8425-VAP (Ex)
Date: March 16, 2010
Title: LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA, et al.
DOCKET ENTRY PRESENT: HON. CHARLES F. EICK, JUDGE

STACEY PIERSON N/A
DEPUTY CLERK ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: (IN CHAMBERS)
COURT REPORTER ATTORNEYS PRESENT FOR DEFENDANTS: None (Page 1 of 3)
The Court has read and considered all papers filed in support of and in opposition to: (a) Log Cabin Republicans Motion to Compel Production of Documents (the Documents Motion), filed February 22, 2010; (b) Log Cabin Republicans Ex Parte Application for Order Compelling Defendants to Comply with Log Cabin Republicans Notice of Deposition, etc. (the Deposition Application), filed March 5, 2010; and (c) Plaintiffs Ex Parte Application for an Order that Certain Requests for Admissions Be Deemed Admitted or for Further Responses (the RFA Application), filed March 8, 2010. The Court heard oral argument on the Documents Motion, the Deposition Application, and the RFA Application on March 15, 2010. With respect to the Documents Motion: Within fourteen (14) days of the date of this Order, Defendants shall produce all documents within the possession, custody or control of the Department of Defense (not including documents reposing exclusively with the Department of Justice or any other federal agency) that are responsive to one or more of the following Document Requests: Nos. 2, 4, 32, 33, 34(limited to documents relating to the regulations), 43(limited to interim reports, drafts or summaries of reports of the specifically referenced reports), 44, 45(limited to communications between RAND National Defense Research Institute and the Department of Defense regarding the reports listed in the Request), 46, 47, 54, 55, 56, and 38. The Court finds that Defendants waived the deliberative
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STACEY PIERSON N/A
process privilege by failing timely to invoke the privilege properly. Except as expressly stated, the Documents Motion is denied. The Court denies the Documents Motion as to the following Document Requests: (a) Request No. 58 (because the request is vague, overbroad and unduly burdensome, see Fed. R. Civ. P. 26(b)(2)(C)); (b) Request No. 39 (because the request is vague, overbroad and unduly burdensome, see Fed. R. Civ. P. 26(b)(2)(C), and manifestly seeks documents protected by the attorney-client privilege and the work product doctrine); and (c) Request No. 40 (because the request is vague, overbroad and unduly burdensome, see Fed. R. Civ. P. 26(b)(2)(C), and manifestly seeks documents protected by the attorney-client privilege and the work product doctrine). The Court has ordered production with respect to Request No. 38 because Defendants waived the deliberative process privilege and failed adequately to support their general claim of any non-waived protections under the attorney-client privilege or the work product doctrine. With respect to the Deposition Application: On or before April 15, 2010, the Department of Defense shall produce for a Rule 30(b)(6) deposition a person or persons prepared to testify concerning those areas specified in the Notice of Deposition as Areas Nos. 1, 2, 3, 4, 6, 7, 10, 14, 15, and 17. Except as expressly stated, the Deposition Application is denied. Plaintiff withdrew the Deposition Application as to Area No. 5. Area No. 8 is objectionable as seeking a legal conclusion. Area No. 9
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STACEY PIERSON N/A
is vague and overbroad (see Fed. R. Civ. P. 26(b)(2)(C)). After balancing the considerations set forth in Fed. R. Civ. P. 26(b)(2)(C), the Court finds that the Rule 30(b)(6) deposition should not encompass Area No. 12. The Court also finds that Area No. 16 is of insufficient relevance to the constitutional claims and the defenses in this action to warrant a Rule 30(b)(6) deposition encompassing this Area (see Fed. R. Civ. P. 26(b)(2)(C)). With respect to the RFA Application: Within ten (10) days of the date of this Order, Defendant United States of America shall unqualifiedly admit or deny Requests for Admissions Nos. 3, 4, 5, and 81-105, the Court having overruled all objections thereto. To the extent the RFA Application seeks an order deeming admitted Requests for Admissions Nos. 3, 4, 5, and 81-105, the RFA Application is denied without prejudice. Except as expressly stated, the RFA Application is denied. Requests for Admissions Nos. 10, 13, 14, 15, and 106-119 employ objectionably vague and ambiguous terms (essential, cannot afford to, documented adverse impact, or documented adverse effects). Any party seeking review of this Order shall cause the preparation and filing of a transcript of the March 15, 2010 hearing.
cc:
Judge Phillips All Counsel of Record

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-08425-VAP (Ex) Title: Date: April 6, 2010
LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF DEFENSE, in his official capacity ================================================================ PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER DENYING DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING (IN CHAMBERS) [Motion filed March 26, 2010] (IN CHAMBERS)
I. BACKGROUND On March 8, 2010, Plaintiff Log Cabin Republicans filed an Ex Parte Application for an Order that Certain Requests for Admissions ("RFAs") be Deemed Admitted or for Further Responses (Doc. No. 119). Defendants filed Opposition to the Application, (Doc. No. 120), and the matter was heard, along with other discovery motions, before U.S. Magistrate Judge Charles Eick on March 15, 2010.
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CV 04-08425-VAP (Ex) LOG CABIN REPUBLICANS, etc. v USA MINUTE ORDER of April 6, 2010
Judge Eick issued an order on March 16, 2010, granting the motion in part and denying it in part ("the March 16, 2010 Order"). Defendants now seek review of that Order to the extent it compels "Defendant USA [to] unqualifiedly admit or deny Requests for Admission Nos. 3, 4 [and] 5 . . . ." (Doc. No. 127.) Plaintiff filed Opposition on March 30, 2010 (Doc. No. 137), and Defendants filed a Reply on April 1, 2010. (Doc. No. 139.) This matter is appropriate for resolution without hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. II. LEGAL STANDARD A party objecting to a Magistrate Judges ruling on a pretrial motion may, within ten days of entry of the order, file a motion seeking review by the assigned District Judge, designating the specific portions of the ruling objected to and stating the grounds for the objection. A party objecting to a Magistrate Judge's Order must show it to be "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. 636(b)(1)(A). III. DISCUSSION Defendants contend that "in the unique circumstances of this case," they cannot in good faith respond to the three RFAs as ordered by the Magistrate Judge, i.e., they cannot respond with an unqualified admission or denial. (Mot. at 2.) They rely on Fed. R. Civ. P. 36(a)(4) as support for their position they should be permitted to provide a qualified response to the RFAs. Rule 36(a)(4) provides in relevant part as follows: If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The Magistrate Judge considered Defendants' argument that the RFAs in MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk __md___ Page 2
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question here could not be answered by an unqualified admission or denial, and rejected it. Defendants have failed to demonstrate the ruling was "clearly erroneous or contrary to law." Defendants rely on Marchand v. Mercy Med. Ctr., 22 F.3d 933 (9th Cir. 1994), in vain. There, the Circuit affirmed the trial court's order that a physician defendant pay the patient plaintiff's reasonable costs incurred because the defendant unjustifiably denied the plaintiff's RFA regarding causation. In doing so, it soundly rejected the defendant's argument that his objection to the wording of the RFA constituted a "good reason" for failing to admit, noting with displeasure that "Counsel routinely object to discovery requests. . . And to aid the quest for relevant information parties should not seek to evade disclosure by quibbling and objection. They should admit to the fullest extent possible and explain in detail why other portions of a request may not be admissible." Id. at 938. The RFAs at issue here are not lengthy, ambiguous or compound. Defendants offer neither legal authority nor any other basis to satisfy the legal standard for reversing the Magistrate Judge's order that Defendants shall provide unqualified responses to them. Accordingly, the Court DENIES Defendants' Motion. IT IS SO ORDERED.
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION-RIVERSIDE HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PHYLLIS A. PRESTON, CSR License No. 8701 Federal Official Court Reporter United States District Court 3470 Twelfth Street Riverside, California 92501 [email protected] REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS Riverside, California Monday, April 26, 2010 LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) V. ) DOCKET NO. CV 04-8425 VAP ) UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) ________________________________)
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1 2 For the Plaintiff: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants:
APPEARANCES WHITE & CASE By: DAN WOODS PATRICK HUNNIUS 633 West Fifth Street, Suite 1900 Los Angeles, California 90071-2007
U.S. DEPARTMENT OF JUSTICE By: PAUL FREEBORNE IAN GERSHENGORN SCOTT SIMPSON CAPTAIN PATRICK GRANT 20 Massachusetts Avenue, NW, Room 6108 Washington, DC 20001
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MONDAY, APRIL 26, 2010, RIVERSIDE, CALIFORNIA ---o0o--THE CLERK: Item No. 7, CV04-8425 VAP, Log Cabin
Republicans versus United States of America. Counsel, please state your appearance. MR. WOODS: Good afternoon, Your Honor. Dan Woods,
White & Case, for the plaintiff, Log Cabin Republicans, and Patrick Hunnius from our office. THE COURT: Thank you. Good afternoon. Paul
MR. FREEBORNE:
Good afternoon, Your Honor.
Freeborne on behalf of the United States and Secretary Gates. With me at counsel table are my colleagues Scott Simpson, Ian Gershengorn and Captain Patrick Grant. THE COURT: Good afternoon.
Well, I haven't checked the electronic filing since about 11:30 this morning, so I hope I'm up to date. filed since 11:30? MR. WOODS: THE COURT: You are up to date. All right. Then I'm up to date. Nothing
Things have been changing quickly. The Court sent out, as I think you all know, a tentative ruling late last week, on Thursday I believe, which was addressed not to all the issues that the parties have briefed in connection with this motion for summary judgment that's before the Court today, but addressed only to the
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issue of standing, which was one of the issues briefed, of course, in the motion, but addressed to an aspect of standing that although raised in -- certainly standing had been raised in the motion, but an aspect of standing that although raised, I did not feel had been necessarily fully addressed by the parties. So, in an effort to make sure that both sides were aware of my concerns with whether the Court had jurisdiction over the case, we sent out a tentative ruling early so that the parties would be prepared to address it today. And then
both sides filed further supplemental briefing I think after that. I can't remember the exact date, but by Friday I had
received a supplemental memorandum from the plaintiff, and then in response to that, I think it was entitled a response brief, the defendants' response to the plaintiff's supplemental filing from the defendants. And then this morning two more documents were filed. One, the declaration of Mr. Meekins, and evidentiary
objections filed by the plaintiff to some of the evidence that was submitted by the Government earlier. I have not I have
looked -- I have read the declaration of Mr. Meekins. not had time to review the evidentiary objections.
So, the first question is whether the tentative ruling is superseded by these supplemental filings from Thursday, Friday, and this morning.
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When I read and reviewed the supplemental filings late last week, and I had a long further tentative ruling to read to you, but I think I'll skip that, at least at this point, unless the parties want to argue that. I'll skip it
because I think, although I've thought a lot about the arguments and done some further research in connection with the arguments raised by the plaintiff, that the Court should consider the standing issue as of April 28, 2006, the day that the amended complaint was filed. I think that that is
mooted by the information contained in the declaration of Mr. Meekins, which states that, in short -- it's a very short declaration, but in short, that John Doe paid dues before the date that this action was commenced on October the 12th, 2004. Mr. Meekins was on the national board of the plaintiff, was on the board of directors at the time this action was filed in October of 2004, and he was also an associate of White & Case, the plaintiff's counsel. He,
Mr. Meekins, met with Doe before the case was filed and with at least three others about the filing of the case, and that Doe was so concerned about keeping his identity secret and confidential that he paid the money for his dues through his -- in Meekins' words, through his lawyer, because Meekins considered himself Doe's lawyer. And Doe was at the time a
member of the board of directors and he paid that money to
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LCR or Log Cabin Republicans as Doe's dues. So, I think that moots the standing issue, because if either Nicholson or Doe was a member, the association, of course, only needs one person to have been a member at the time. At least for purposes of the hearing today, I don't
think I necessarily need to hear argument on the issue of whether Mr. Nicholson was a member. It's an interesting -- well, to me it's an interesting question. I've read many times over all the
cases that both sides have cited on this issue, the McLaughlin case, the Loux v. Rhay case, and a few others besides all of the cases that you've cited to me, and I think it's an interesting crinkle when you have associational standing on top of the issue of an action being dismissed and then an amended complaint being filed. But I don't
necessarily have to reach that issue as to whether Mr. Nicholson -- and then there's the issue that the Government raises about whether Nicholson as an honorary member was really a member under the bylaws, but I don't necessarily need to reach that issue if, as I believe, Doe was a member before the action was filed. the case appears to me now. However, and I think you've all appeared in front of me enough to know this, I usually -- well, almost always, when I have a motion to be heard, I give out a written And that's the way
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tentative. On the merits of this case, although I've read everything that the parties have submitted and read many of the cases, I didn't really prepare thinking that this case was really revolved around standing. I would like the
parties to argue it today, and I have several questions to direct to both sides on the merits of the motion. I'm concerned about whether, after hearing you argue today, I will be able to get a final ruling out to you in time that you can finish your trial preparation such that we can keep the June 14th trial date. elicit such a hasty response. response to that. I didn't mean to
I guess I could listen to your
So I'm thinking that I'm probably going to
have to move the trial date a short -- not a significant period, but a short period, but I am prepared to have you argue. I do have several questions to focus the argument on
the substance or the merits of the claims that are raised. Since you both, apparently, want to be heard as to the trial date and the issues with respect to the standing, you can do so first, if you'd like. MR. WOODS: Well, Your Honor, I was just going to
say that in light of the tentative ruling and with the filing just today of Mr. Meekins' declaration, we aren't entirely surprised the Court doesn't have a tentative ruling on the merits of the motion. We're quite happy, if it's your
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desire, to come back another day and argue that.
At the same
time we're happy to argue it today, but whatever your choice would be. We understand, of course, given the timing of
everything, that the trial date would have to be moved. THE COURT: All right. Mr. Freeborne.
MR. FREEBORNE:
Well, Your Honor, I would like to
speak first to the standing issue, if I may. THE COURT: Go ahead. Your Honor, with all due respect,
MR. FREEBORNE:
your tentative ruling is correct and it properly disposes of this case. complaint. initiated. The operative complaint here is the first amended The cases make clear that when the action is When Judge Schiavelli afforded plaintiff the
opportunity to correct the deficiency in its original complaint, he was very clear not to dismiss the underlying action. So standing, as Your Honor correctly ruled in the
tentative, is determined at the time that this action was initiated. THE COURT: Well, let me stop you there, though,
because that's procedurally almost exactly what happened in the case I referred to a moment ago, Loux v. Rhay, which is the case where a state prisoner sued the State of Washington. And it was eventually decided on Eleventh Amendment immunity grounds. But what's interesting about that case is there
were three holdings in the Circuit, and it was Judge Byrne
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from this court sitting on the Circuit who wrote the decision, and what you just said was the first holding, which was there was a complaint filed. It was dismissed. And so
first the Court -- the Ninth Circuit held, all right, the dismissal of that action, as you said, was moved to amend, so it didn't get rid of the case. But, nevertheless, although the trial court's dismissal of the original complaint did not amount to dismissal of the action, the amended complaint superseded the original complaint and thereafter the original complaint should be treated as nonexistent. There was a discussion of
standing in this case, even though, as I said, it really turned on Eleventh Amendment immunity. But if you applied
that logic to our case, the dismissal of the original complaint for lack of jurisdiction, which is exactly what happened in the Loux case, means that it should be treated, as the Ninth Circuit said there, as nonexistent. So then it follows, doesn't it, that the Court should not do a standing analysis based on the date of the filing of the action? MR. FREEBORNE: new parties -THE COURT: Loux v. Rhay. MR. FREEBORNE: Well, Your Honor, perhaps they Which there were neither of in Your Honor, absent new claims or
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could refile and perhaps that would be the remedy here. what we have here is a situation where they filed suit in
But
2004, October 12th, 2004, and they attempted to manufacture members to support their claim. That's the opposite of how Hunt is very clear in
it should work and for good reason.
requiring you bring suit, and when associational standing is at issue, you must have a member at hand at that time who could sue on his or her own right. THE COURT: I agree with you, you can't manufacture
standing, and you can't manufacture persons, but given what the Meekins' declaration says is they had a member. MR. FREEBORNE: THE COURT: If I could turn to that point?
Why don't you. With respect to the -- first of
MR. FREEBORNE:
all, it's an eleventh-hour declaration and we have considered, but it's improper. They've had six years to come
forward and prove that they had standing in this case. THE COURT: Well, let me -- in terms of the
eleventh-hour issue, the Government didn't squarely raise this. I mean, you certainly have raised standing. It's not
the first time you've raised standing, you've raised it before, but you did raise it in this motion. very difficult issue for the Court. And this is a
When I say "for the
Court," whether I raise something that a party hasn't raised. But when it comes to standing, the Court has no
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choice.
The Court has to raise even an aspect of standing
whether one side or the other -- when it comes to any jurisdictional issue, if you haven't raised it, the Court has to. The Court has a duty to. So, although you've raised standing, you had to raise the issue that I felt duty bound to raise, which was that the declaration was more general than I thought it should have been. So, to criticize, if that's not too harsh
a word, to criticize the plaintiffs for coming in at the eleventh hour, if I hadn't raised this in the tentative ruling, they wouldn't have come in at the eleventh hour. MR. FREEBORNE: that. Your Honor, if I could respond to
The law in this case is Judge Schiavelli's March 22nd,
2006 order in which he required them to identify by name a member, not an anonymous member, a member by name. And so,
yes, our briefing was directed at Mr. Nicholson, because I think we all now agree that Mr. Nicholson has been proven not to be a member either at the time of the initial complaint or, frankly, even in 2006. And so, yes, our briefing was
focused on Mr. Nicholson because that's what we understood the law of the case to be. Now, with respect to Mr. Doe, as Your Honor is aware, they have offered up a declaration in the past for Mr. Doe. It's very curious now that they've offered up a And there's a lot of questions to
declaration from counsel.
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be raised about the Doe declaration. First of all, Mr. Meekins' is very carefully drafted. When? Mr. Meekins says funds were transferred to him. He also concludes in the final Well, that
We don't know.
paragraph that he considers Mr. Doe a member.
doesn't leave us in any better position than we were after the Bradley declaration. He, too, considered Mr. Doe to be a
member, but that doesn't sustain their burden of proof on the issue. And even if they could get beyond all those hurdles, Judge Schiavelli's order on March 22, 2006, governs this case, and for good reason. It was only because we could
depose Mr. Nicholson and, frankly, Mr. Hamilton, their director, were we able to learn that they had -- that Mr. Nicholson was not a member at the time that this action was commenced, and he was not a member at the time of the filing of the first amended complaint. What the Meekins' declaration does show us, though, is the extent to which they have attempted to manufacture standing in this case. didn't have any member. What it makes clear is that they They purportedly went to four
enlisted service members and say, "Will you help us with this lawsuit?" And then they attempted to -- they apparently were
able to enlist Mr. Doe, but again, the declaration is very unclear as to whether or not he was a member. And all
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Mr. Meekins tells us is that they considered Mr. Doe to be a member, not that he was a member, not that he's on the membership roles, not that he was on the membership roles back in 2004. Your Honor, all of this points to the fact why Judge Schiavelli's ruling was correct. We need to have an They said
identified member which they said that they have. that in the original complaint. discharged members."
They said, "We have
And to identify one of those
individuals certainly doesn't cause them any harm, the individuals harm, because they've been discharged. Moreover, Mr. Woods handed me at Mr. Hamilton's deposition a survey of anonymous discharged members. said, "We have plenty of discharged members." They
They can
identify one of those discharged members to sustain their burden of showing standing, associational standing. To
manufacture standing as they've done in this case in a constitutional challenge, Your Honor, is an improper forum for this Court to be exercising Article III powers, particularly when we have a facial challenge. As Your Honor is aware, facial challenges are independently frowned upon for good reason. They have What we
potential of intervening the democratic process.
have here from all appearances is a generalized grievance where the Court should not be exercising its Article III
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powers, particularly where we have a constitutional challenge at issue. So, with all due respect, we believe that they have not sustained their burden of proving that Mr. Doe was a member and, therefore, a proper basis for the Court to find associational standing, but even if you were, the March 22, 2006 order should govern this case. THE COURT: I've addressed that already in the
order that I issued about what anonymous means and what the circumstances of this case mean in terms of the exception in rare cases where a person may be identified as a John Doe. But, Mr. Woods, do you want to respond to the other arguments? MR. FREEBORNE: that analysis? THE COURT: I've already ruled on that issue, so I Your Honor, if I could speak to
think you've preserved it. Mr. Woods, do you want to respond on the other issues? MR. WOODS: standing for now. if you would like. THE COURT: MR. WOODS: Let's focus on standing first. First of all, associational standing is There are several Yes, Your Honor. Let me just focus on
I'm happy to talk today about the merits,
a recognized part of our legal system.
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cases cited in the briefs where courts do find associational standing to exist, which includes the Biodiversity case in the Ninth Circuit, the Associated General Contractors case in the Ninth Circuit, and from the Supreme Court, the Friends of the Earth case and the Hunt case. We all agree, I believe, on what the elements of associational standing are. Three elements in the Hunt case,
and the Government is only contesting one of them, which is whether one member of the organization has standing in his or her own right to present the claim. What the Government misstates, and again, Mr. Freeborne's argument misstates again, is the burden on this motion of establishing this issue. The case that I
believe, Your Honor, sets out this most clearly is the Lujan case which is cited in your tentative. It's a Supreme Court
case and it talks about the burden of standing at different stages of the litigation. I know this is important, so if I just want to read a little
you don't mind, bear with me.
bit of it without citing the cases that relies on them. This is the Lujan case, Your Honor, page 561. party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere "The
pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the
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burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." So, in this argument, Your Honor, it's not that we have the burden of proving standing to exist, we only have, in response to the Government's motion, the burden of showing the genuine issue of material fact does exist. And we have
carried that burden, we believe, Your Honor, both with respect to Colonel Doe and with respect to Mr. Nicholson. So the evidence before you on Colonel Doe's standing is contained in his original declaration, Mr. Bradley's declaration, and now in Mr. Meekins' declaration. And all of that evidence shows you that he was
a member of Log Cabin Republicans prior to the filing of the original complaint which was in October of 2004. At a minimum, Your Honor, this evidence that we
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presented to you at least creates a genuine issue of material fact on this issue. And we may have to prove it at trial as
well, but that is the standard and we have met that standard. With respect to Mr. Nicholson, Your Honor, the question, first of all, is a legal question about when you look at the issue, at the time we filed the original complaint or at the time of the filing of the first amended complaint. And in our brief we did cite the case you've And we noticed
already mentioned, the Ninth Circuit case.
that in the Government's response to our supplemental brief there was no mention of that case or of the treatise that also stated the same point. Also, Your Honor, sorry to fill you up with one more case for you to look at in your reading on this issue. I apologize again for not citing it earlier, but we were short of time. An additional case that we believe supports our
position, Your Honor, is called Forum for Academic and Institutional Rights, Inc. v. Rumsfeld. The Citation is 291
F.Supp.2d, 269, from the District of New Jersey in 2003. THE COURT: MR. WOODS: Sorry, 291 F.Supp.2d? At 269. You will find, Your Honor,
there is subsequent history to the case on the other issues in the case but not on the standing issues raised. The
plaintiff in that case, Forum for Academic and Institutional
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Rights, is called FAIR.
It's a Solomon Act case in which
FAIR and other -- FAIR was an association of law schools challenging the Solomon Act. And the standing in that case And prior to
was raised by a Government motion to dismiss.
the hearing on the motion to dismiss, FAIR identified by name two law schools who were members of the organization. the standing issue is decided in that case on a second amended complaint that had been filed in that case that included the names of the two law schools that had not previously been mentioned in the prior complaints. case the District Court found standing to exist. In that The And
subsequent history has to do with the other issue in the case which is whether the plaintiffs were entitled to preliminary injunction. I also want to say, Your Honor, that some of the cases that the Government cites in its supplemental papers actually do not support the positions cited by the Government, and perhaps indeed support our position. One of
those is the Lynch case which demonstrates its standing in the class action case which is somewhat analogous to our case. Can and should be evaluated based on when the
proffered representative is added to the litigation, need not be determined at the time of commencement. The Court their
evaluates standing based on the later added class representative, not the class representative named in the
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original complaint. The other case that the Government relies on here is the Schreiber case. And the Government quotes soundbites
from that case, but the actual case says something else. It's a very odd case where the plaintiff had standing on a patent litigation when they filed the case, then transferred the patent rights and then at some point prior to judgment got them back. And again, the Court there does not look at standing at any one particular point in time and actually says, with respect to the general rule about standing, that the plaintiff must have initial standing and continue to have a personal stake in the outcome of the case that, quote, this rule is not absolute. So that case, we believe, also
establishes our position that you could and should look to standing as of the date of the filing of the first amended complaint. And if you agree with that proposition, Your Honor, we have also established at least a genuine issue of material fact as to whether Mr. Nicholson has standing. We have
evidence before you that showed bylaws of the Log Cabin Republicans allowed for honorary members and that Mr. Nicholson became an honorary member in April of 2006. That evidence is found in the Engle declaration, Mr. Nicholson's deposition, and in the Ensley declaration.
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It is also our view, Your Honor, that the Government does not get to decide who is or isn't a member of the Log Cabin Republicans. It is our position that's what
the Government seems to be trying to do by questioning the relationship between the bylaws of our organization and the articles of the corporation. THE COURT: on this last point. Well, let me interrupt you for a moment The McLaughlin case -- you mentioned
class actions a moment ago, and the McLaughlin v. County of Riverside case, which perhaps not surprisingly I am familiar with, is a class action case that started out with a single named plaintiff who filed for putative class action. And when the Supreme Court analyzed
the standing question, it expressly referred only to the filing of the second amended complaint when determining the basis of the standing. Now, Mr. Freeborne, I'm sure, would
point out correctly the single named plaintiff filed the putative class action which claimed that the County violated his rights under the Gerstein case about timely hearings to determine whether a warrantless arrest had been made to determine probable cause, speedy arraignment, and bail. And then when the County moved to dismiss for lack of standing on the basis that that plaintiff hadn't shown that he would again be subject to all of this unconstitutional conduct, then three more plaintiffs joined
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in.
So I think, as Mr. Freeborne argued earlier, it's a case The thing
where there were additional plaintiffs added.
that's similar in a sense to this case where we have associational standing is that was a class action. So
although there are, in a sense, named plaintiffs, they are representing a class just as an association here. There's
some similarities or an analogy can be drawn between associational standing and the requirements of class representation. So the three additional plaintiffs, the representative plaintiffs, join in filing a second amended complaint. It's a little hazy. I think the judge in
question never ruled on the first amended complaint but allowed a second amended complaint to be filed by a motion to dismiss the first amended, but a second amended complaint was filed. again. And as I said, the Supreme Court only analyzed standing from at the point in time which the second amended complaint was filed in July of 1988, adding the three new plaintiffs as class representatives. So the defense in And the County moved to dismiss for lack of standing
the -- I think it's in their reply papers in this motion argues that a complaint may be amended to show that jurisdiction exists but -- it actually was argued again today -- it can't be amended to create jurisdiction when it didn't
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exist in the first place. But I don't think you can escape the import of McLaughlin where the Supreme Court only analyzed the standing issue as of the date that the second amended complaint was filed and not the date that the action was originally commenced. So even if you argue that the focus on a later
date in McLaughlin can be explained as the result of the addition of the new plaintiffs in that case, I'm not sure that distinction is persuasive, because while in McLaughlin there were three new plaintiffs that were added, the amended complaint here, of course, remains one filed only by one plaintiff, the association. But the principles governing associational standing, there only has to be a member of the association who has standing, which is similar to the principles of standing for purposes of -- it's similar to the principles of having class members who are representative for purposes of a class action, which is what happens and what often happens when a class action is filed. And the representative in that
case was -- the representative class member was held not to have standing and perhaps, therefore, defeating the entire class's standing because he couldn't show that the unconstitutional acts were likely to be repeated. But when
three more plaintiffs were added, standing was held to exist.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument.
So I'm not sure you can really distinguish the two cases by saying, oh, but they had more -- more plaintiffs were added, because if you've got a class and you've got an association, in a sense, you still really have one plaintiff. If you've got a class or an association, you've
got representative class members that have to be representative, if you've got a class action. And in an
association you have to have at least one member who would independently have standing, but the principle should be the same. Do you want to respond to that? MR. FREEBORNE: THE COURT: Yes, Your Honor.
And then I'll let you finish your
MR. FREEBORNE: THE COURT:
With respect to Lujan --
No, actually, if you could just respond
briefly on this point about McLaughlin. MR. FREEBORNE: Well, Your Honor, when you add new
claims and you add new parties, of course, the standing that exists will be determined based upon those new claims and those new parties. Here the parties have remained the same.
And in Lujan what it makes clear is that, after the discussion that Mr. Woods just read, is that where you're suing on behalf of someone else. You recall in Lujan the
plaintiff argued, well, now that the Government had been
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added as defendants there, that that solved the redressability problem, and that's what Lujan specifically rejected in footnote No. 4. So, the point is, that you bring a lawsuit and -THE COURT: scheduled. (The Court and the clerk confer) THE COURT: Go ahead. Your Honor, what Lujan makes clear I'm sorry, I have a conference call
MR. FREEBORNE:
as well as the cases that actually address associational standing, Biodiversity, for example, and the Laidlaw case, is that when you bring an action and you purport to sue on behalf of individual members, those members, of course, must exist at the time of the suit. All the cases we've been
discussing don't address the associational context, again, Biodiversity and Laidlaw do. And Lujan makes clear that
where you're suing on behalf of someone else, there's an extra showing that Mr. Woods is not acknowledging in his argument. With respect to Mr. Nicholson, our argument is not that we get to decide who is a member of Log Cabin Republicans. We acknowledge that it's Log Cabin's decision
to make, but must be pursuant to the articles of incorporation, which D.C. law makes clear in their articles of incorporation that you're to have one class of members,
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dues paying members, and the undisputed facts show that Mr. Nicholson was not a dues paying member, even at the time of the first amended complaint. THE COURT: members? MR. FREEBORNE: Your Honor, to the extent they do, The bylaws don't provide for honorary
they're void, because they're in conflict with the articles of incorporation. As Your Honor will recall, bylaws are not The
reviewed by the government of the District of Colombia.
articles of incorporation where Log Cabin is incorporated, the government does review the articles of incorporation. Those articles of incorporation make clear that there is only one class of membership, the dues paying members. separate class for honorary members. THE COURT: Well, the articles of incorporation are There's no
filed with -- the equivalent is of the Secretary of State from the state. But I'm not sure what your authority is for
the proposition that if it's in the bylaws and it's not in the articles of incorporation, that makes that section of the bylaws void, as you said. MR. FREEBORNE: THE COURT: Your Honor -- sorry.
No, go ahead. I was going to say we have Because, again, in
MR. FREEBORNE: authority.
D.C. law makes that clear.
case law from this very Circuit makes clear, the District
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Court's position makes clear that to the extent that bylaws are in contravention of the corporation's articles of incorporation, the bylaws are void. authority in our brief. We have cited that
And it just follows, because, again,
the corporation only exists because they have articles of incorporation that have been blessed by the Government. The facts of this case show, A, that those articles of incorporation require the payment of dues, as Mr. Hamilton, the Director of Log Cabin, acknowledged at his deposition. To the extent the bylaws create a separate
category of members, honorary members, they're in conflict with the articles of incorporation and therefore are void. And the fact that they've now filed Mr. Meekins' declaration is implicit acknowledgement of the dues paying aspect of their membership, because that's why they highlight that issue. But, again, they can't even -THE COURT: Well, not necessarily. I mean it
doesn't -- there is no evidence that Mr. Doe -- I'm sorry, I should be saying "Colonel." I know titles are important to
everyone, to get your name and the title correct, so I apologize for that. Apparently, there's no evidence he was
ever made an honorary member, so they can't say he was an honorary member, so they're saying he is a dues paying member. The reason I am so puzzled by this conflict between
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the -- I didn't focus on it before, so I will go back and look at the authorities that you're telling me about. It
just sort of goes against my -- assuming what you told me, I mean it does seem like a drastic consequence that that part of the bylaws would be void. The Federal Bar Association, I don't know if you remember, the Federal Bar Association provides for honorary members for all judges. At least the bylaws do. I don't But many
know if the articles of incorporation do or not.
organizations have a very loose category of honorary memberships. And I've never really thought about the
interplay between the articles of incorporation and bylaws, so I'll take another look at that issue. All right. MR. WOODS: You may continue. Thank you, Your Honor. On that issue
there were no District Court cases cited for the proposition that the bylaws would be void. Instead, the Government cited
a state court case from Nevada and a state court case from Illinois. point. THE COURT: MR. WOODS: THE COURT: of Colombia? MR. WOODS: No case cited in the papers, Your On the issue of whether bylaws are void? Right. Isn't there anything from the District That's the authority they could find on this
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Honor. THE COURT: Do you have something to say? Did you
have some authority from the District of Colombia on that? MR. FREEBORNE: We had a D.C. code, Your Honor,
Section 29-301-0512, which states clearly that bylaws cannot be inconsistent with articles of incorporation under the laws of the District of Columbia. THE COURT: they're void? MR. FREEBORNE: Well, it says they cannot be We cited But it doesn't say in the code that
inconsistent with the articles of incorporation.
two state cases, the Nevada case as well as an Illinois case, setting forth that proposition. Again, the D.C. law makes
clear that to the extent the bylaws are inconsistent with -Your Honor, they can't be inconsistent with -THE COURT: It says they can't be. It doesn't say
what the consequence is if they are? MR. WOODS: Right. It defines the power of the
MR. FREEBORNE:
nonprofit corporation, the power to make and alter bylaws not inconsistent with its articles of incorporation or the laws of the District of Columbia for the administration and regulation of the affairs of the corporation. the power. So it defines
So to the extent the bylaws are inconsistent with
the articles of incorporation, they are void pursuant to
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D.C. law. MR. WOODS: Again, Your Honor, it is our position,
and I think it's a correct position, that all this does is possibly trade the genuine issue of material fact that would have to be tried on the standing issue, again, only with respect to Mr. Nicholson, not with respect to Colonel Doe. Another small point, Your Honor. Counsel in his
argument seems to criticize our case as being a facial challenge. And I want to tell you that facial challenges are There's nothing inappropriate about a They're an important, recognized part of The Lawrence case was a facial
not inappropriate. facial challenge.
constitutional law. challenge.
Just last week the United States Supreme Court
cited another facial challenge, United States v. Stevens, and reversed on constitutional grounds a facial challenge, an animal cruelty statute and, of all things, an 8 to 1 vote of our Supreme Court. appropriate. I was prepared, Your Honor, to talk to you about the consequences if you had stayed with your tentative ruling about standing. I don't need to go into that now, but one of So facial challenges are more than
the consequences might have been to ask you for an opportunity to find more members, to file an amended complaint, because all that would have done, Your Honor, would be to require us to file a new lawsuit tomorrow, which
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might have named Mr. Nicholson and Colonel Doe as members, because there's no doubt that there are damages. There's no
point in doing that because we do have standing, we both recognize now. And, again, our apologies -Let me ask you -- let's go back to some
THE COURT:
of the arguments that Mr. Freeborne made about what he contends are the weaknesses in the declaration submitted by Mr. Meekins. MR. WOODS: I'm only going to tell you, Your Honor,
that going back six years trying to find out what happened and what we've done in the short amount of time we've had, I think we did a good job of finding out evidence and presenting it to you. issue of material fact. And, again, this creates a genuine Before this case is tried, whenever
it's tried, we will be better prepared to give you more evidence on that, but I don't know what else to tell you. we need to have Mr. Meekins testify at trial on this, we will. I imagine to have the other witnesses about the If
honorary membership of Mr. Nicholson and the like testify at trial. Again, as I said, with respect to the Lujan case, the standing issue is determined at different stages of the litigation by the governing burdens that apply to each stage of the lawsuit. THE COURT: I'm going to take a short recess at
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3:30 because I had a conference call on another case on a status conference. And when they called at 3, Ms. Dillard So at 3:30 I'm going to take And then I'll
told them to call back at 3:30.
a short recess to take that call in chambers. come back out and we'll talk.
I want to at least have some
argument on some of the issues on the merits that I would like to hear from the parties on. But one last set of questions I have about the Meekins' declaration. Mr. Freeborne has brought up some of
the Government's concerns with the Meekins' declaration in terms of the -- I'm not concerned about the issue that the Government has argued. I have listened to their argument,
but I'm not concerned about it being an eleventh-hour issue, because the issue about the exact timing of Colonel Doe's membership was not squarely raised except by the Court in the form of the question raised in the tentative ruling. So the
fact that it wasn't dealt with until after the Court issued the tentative ruling, I think that's the reason. But the
Court has a duty to raise issues regarding its jurisdiction, including standing, on its own even if neither party has raised it. MR. WOODS: Your Honor, excuse me for interrupting. That specific point
On that point you're absolutely right.
was not even mentioned in the meet and confer session that led to the motion for summary judgment.
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THE COURT:
All right.
I'm not faulting either
side either for not, you know, either about raising it or for not having anticipated it. That sometimes -- I just didn't
want to have the parties do all the work to prepare and then come to court and have the Court raise something that needs to be raised but everybody is caught by surprise. But as to Mr. Freeborne's arguments about the Meekins' declaration, I have done this once or twice before, not in connection with the standing issue but actually in connection with matters that have come up regarding performance in criminal cases, in that sort of a context. I'm not sure it's necessary, but one solution to the concerns that the Government has raised about whether Colonel Doe is a manufactured plaintiff, I'm not sure if that's really what the Government is suggesting here, but if that's the Government's contention, then it seems to me that the solution for that, because that's a serious allegation, and if that's the suggestion or the concern of the Government, then the solution, it seems to me, is as follows: That if I was persuaded that there was a serious doubt as to the existence of a fictitious member, I mean someone who is named with a fictitious name, and I stand by my ruling that this is a rare case where it was appropriate to allow someone to use a fictitious name, but to verify the existence of someone who is allowed to proceed under a
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fictitious name, then I would have a hearing where plaintiff's counsel, rather than even filing it under seal, just to make sure that there's -- in my experience with the court, there hasn't been a situation where something that was filed under seal was inadvertently disclosed, but just to make sure that that doesn't happen, then I would allow a hearing where plaintiff's counsel could physically bring into court documents that would verify the existence of Colonel Doe, the information about his service and so forth, bring them into my courtroom and hand them to me. I will either sit on the bench or take them into chambers, review them, satisfy myself, and hand them back. So they don't get filed with the court. who has eyes on them. I am the only one
And if I am satisfied that this is not
a fictitious person but just a fictitiously named real person, then that's the end of the inquiry. If I am not
satisfied, then we'll have to have a further hearing on it. But if the Government has -- I'm not sure I am understanding the Government's concerns, but if I am understanding the Government's concern correctly that there is a manufactured plaintiff; that is, that the person is just not fictitiously named but is fictitious, then that to me is the way to verify that. And as I said, I've done this procedure where rather than having something filed under seal, it's usually,
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as I said, I think I've done it twice before and it's been in the context of very sensitive information with respect to informants or private medical information, and that's the way I've proceeded. So I would let the parties talk about this, if you'd want to, but that's the way I would proceed. And I'll I
tell the parties that I have considered that in this case. might consider it in the future. MR. WOODS:
Well, Your Honor, what I understood the
Government to be saying about Mr. Meekins' declaration was that there were four people he talked to, and he talked to them shortly before the complaint was filed, and only one of them became a plaintiff in the sense of a member of Log Cabin Republicans who was injured by the policy. You know, what I think the Government is missing is that this isn't intended to show you the entire universe of information about efforts to locate plaintiffs or members who have been injured by the policy. What we did was to find for
you the person who had personal knowledge about this Colonel Doe. So I think the Government was sort of reaching a little
bit in trying to suggest that we are manufacturing anything. And I never have seen the Government try even to claim in this case that Colonel Doe does not exist. And, remember, Your Honor, at the beginning of this when we were first asked by Judge Schiavelli to name somebody
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by name, we suggested to the Government that we would name Colonel Doe by name if the Government would agree not to take action against him, and the Government declined. THE COURT: MR. WOODS: Right. I understand that.
We are in that position because of the
Government's refusal to agree to that process that we had suggested. MR. FREEBORNE: Your Honor, what we were arguing,
and it's based upon the Meekins' declaration, is that they decided to bring this lawsuit and then they were trying to enlist as members service members within the Armed Services who are not members. THE COURT: Right. But you're not contending that
Colonel Doe does not exist? MR. FREEBORNE: No, Your Honor. Although the
declaration does have some discrepancies in that regard when it talks about Colonel Doe and then it talks about him as an enlisted service member as opposed to a commissioned service member. THE COURT: I wondered about that. I'm not
entirely familiar with the difference between those terms, but familiar enough. You can enlist and be an officer. I
mean, only you're commissioned when you're an officer. MR. FREEBORNE: Your Honor, but our primary concern
is the concern that was identified in the
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Washington Legal Foundation case.
A proper associational
plaintiff should have a membership that has been harmed in whatever way you're now seeking to base your challenge upon. You should have an existing membership. associational standing. That's why you have
You shouldn't have an entity like
Log Cabin Republicans challenging the constitutionality of a duly enacted statute and then trying to get members to support your lawsuit. work. And so when I make the point, that's related to the facial challenge point. sinister. I'm not saying that they're That's not the way it's supposed to
I'm just saying that the Court should be careful
when it exercises its Article III powers to ensure there's a case for controversy. THE COURT: challenges. And facial challenges -I understand your point about facial
You've cited your authorities on that point.
And I think I understand better your position with respect to identity of the Doe member in this case. All right. I'm going to take a recess so I can
take care of this status conference in my other case and then we'll continue on at about 3:40. (Recess) THE COURT: All right. Let's turn to the next Thank you.
issue which is partly an issue connected to the standing issue and partly an issue that is related to the merits. And
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that is the argument that the Government raises about whether as to Colonel Doe -- I'm sorry, let me find it in my notes here. That as he has never been discharged and, as the
Government argues, the "Don't Ask, Don't Tell" policy has never been applied to him, the Government argues that his asserted harm is based on a future possible conjectural or hypothetical application of the policy; and therefore, this doesn't satisfy the standing requirements of a concrete and actual or imminent injury. The cases that the Government cites in support of this argument, the two primary cases the Government cites are the Vermont Agency of National Resources v. Stevens, which is a qui tam case where in general the Court addressed the type of injury a relator suffered in order to satisfy the first element of the standing inquiry, but that case really is so factually distinct from our case, I don't find its analysis to be that helpful. The Gange Lumber case also cited by the Government, the 1945 case, which deals with the State of Washington's change in the administration of that state's industrial insurance program, apart from a reiteration of the general principles of standing, which aren't really in controversy, that case, too, is not particularly helpful. Both sides argue a bit about the -- or rely to a certain extent, argue the impact of the City of L.A. v.
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Lyons, which originated in this District but is a United States Supreme Court case. That's the choke hold case which
does deal with the issue of whether the plaintiff satisfied the requirement of showing a concrete particular imminent injury. And so while it talks about whether the plaintiffs
who were added -- no, I'm sorry, there weren't plaintiffs added in that case. That was the case where the plaintiff filed suit because he was arrested after a traffic violation subject to the choke hold applied by an LAPD officer which injured his larynx and then sued to prevent future such injury. The
Supreme Court held that there wasn't really a danger of such an incident happening again; that is, that he be arrested for a minor traffic violation, and according to the allegations in the complaint, immediately subject to -- even though he wasn't resisting, according to the complaint, being subject again to a choke hold, because among other things, there had been 15 deaths from choke holds in the meantime and the LAPD had changed its policy. also made it conjectural. That case is just so dissimilar from ours that -- I didn't think any of the -- neither side really cited the line of cases that I was looking for, that I thought were the line that would be similar factually and persuasive, which would be cases where somebody was threatened with prosecution or But all of the other facts involved
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thought they faced imminent prosecution. So I found a number of cases that I think are either closer factually or provide such a contrast that they aluminate the problem that the defense is pointing to here. First, Babbitt v. United Farm Workers, which is 442 U.S. 289, which first sets forth the principle that a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. And it relies on
O'Shea v. Littleton, which I think the Government did cite here. But it goes on to hold that one does not have to await
the consummation of threatened injury to obtain preventive relief. enough. If the injury is certainly impending, that is And there is various other cases that are cited. I think that's exactly the situation here where the -- it's certainly impending; that is, initiation of separation proceedings, if Colonel Doe announces his sexual orientation. In fact, in the merit section of the moving
papers in the Government's careful discussion of the policy, both the findings that support it and the policy itself, a statement that one is homosexual is grounds for initiation of separation proceedings. So I don't think that the Government's position here that it's conjectural or hypothetical that the "Don't Ask, Don't Tell" policy would be enforced is well-taken.
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There's a policy, it's enforced, and the injury to a member of the Armed Forces while serving, that it's simply not conjectural or hypothetical. There are a number of other cases and one the name of which I thought I had in my notes, but I don't. It
involved -- I think it was a Ninth Circuit case which involved someone who was passing out handbills and was challenging the ordinance that forbade that. He was warned
specifically by a police officer that if he was caught doing it again, he would be arrested. His companion who was also And the Court held that
handing out handbills was arrested.
that was enough to show standing and that was a facial challenge. So I think that that is certainly -- that's probably as close factually as we could find. persuaded by the Government's argument. So I'm not
That's pretty much
the last argument that we haven't addressed here on standing. Do you want to respond, Mr. Freeborne? MR. FREEBORNE: Your Honor, the phrase that you
referenced in the Babbitt opinion mirrors that in the Lyons decision which isn't pending. If Colonel Doe is to be
believed in his declaration, he has served for over 20 years without being subject to the policy. He alleges that his
speech has been chilled, but Your Honor has already dismissed that aspect of their First Amendment claim. So now
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we're left with his potential discharge.
And our argument is
that because he has served, any threatened separation is inherently speculative. It is not imminent or impending as
the term is used in the Babbitt decision. And as Your Honor is aware, the O'Shea case is referenced in Lyons, so that analysis is subsumed within the Lyons analysis. That analysis is important here because what
plaintiff is seeking to do is to enjoin the enforcement of a federal statute in seeking declaratory injunctive relief, which Lyons speaks to and points to the heightened showing that must be provided in that context, as does the Hodgers-Durgin case that we cited. THE COURT: But if this is not a case where, as in
the language I just read to you, one doesn't have to await the consummation of threatened injury to obtain preventive relief, but one who challenges the statute just has to demonstrate a realistic danger of sustaining injury, if this isn't that case, what would be the case? policy the Government has stated. I mean, there's a It's
The policy exists.
the Government's duty to enforce it.
So if this is not such
a case, how could there be a case where there is a more direct danger of concrete, impending injury? MR. FREEBORNE: Well, Your Honor, with respect to
the statements analysis, Your Honor is aware that the service member can rebut the presumption as it relates to that
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statement.
There's a whole discharge proceeding that would
have to occur before the service member would have to be discharged. THE COURT: But the initiation of the discharge --
I mean, I think -- is your argument that the initiation of the discharge itself is not an injury? MR. FREEBORNE: Well, Your Honor, our argument is
that the fact that that would occur, given that Lieutenant Colonel Doe has served for over 20 years, is inherently speculative and it's not imminent or impending as the case law had said. THE COURT: Well, Ms. Witt had served for
approximately 20 years, so the length of service doesn't seem to -- and yet the -- I think her branch was the Navy, but they initiated separation proceedings against her. So if
your argument is that once somebody has served a certain number of years, they're less likely to initiate separation proceedings, the reported cases have no support for that proposition. MR. FREEBORNE: Your Honor, the difference here is
they're seeking declaratory injunctive relief, which again, Lyons speaks to, and it was not at issue in the Witt case. THE COURT: But your argument -- if I understood
your argument correctly, you seem to be saying, well, he served for 20 years so they're not likely to initiate
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separation proceedings.
There just doesn't seem to be any
support for that proposition. MR. FREEBORNE: Our argument is it's inherently
speculative and should not be the basis for awarding declaratory injunctive relief, and they do not have standing to pursue that claim. THE COURT: That's our argument. How is it speculative? Again -The Government
MR. FREEBORNE: THE COURT: enforces the policy.
There is a policy.
So how is it speculative that
separation proceedings would be initiated? MR. FREEBORNE: Your Honor, again, his conduct.
He, by his own admission, has served many years without being subject to the policy. And any harm that would result from I'm not sure how much It's
the policy is inherently speculative.
I can add to the analysis, but that's our argument. much like the stop case in Hodgers-Durgin where the
individual there was allowed to cross the border without incident, and here he's served for many years without being discharged. THE COURT: Well, according to the policy, which is
Sections 654(b)(1), (f)(3)(A)-(B) of Title 10, the defendants may initiate separation proceedings if a service member engages in a homosexual act, which is further defined as any bodily contact actively undertaken or passively permitted
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between members of the same sex for the purpose of satisfying sexual desires; and any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A), and such acts include holding hands and kissing, which is found in the regulations at 1332.14 at E3.A41.2.4.1; or, just to give a couple of examples, or the defendants may initiate separation if the service member makes a statement that he or she is a homosexual or words to that effect. So I've been quoting from two parts of the policy. The Government -- I don't mean to keep repeating myself. The
Government enforces the policy, so if -- I'm really having a hard time understanding your argument that the harm -- the injury, that is, that he be subject to what's called separation proceedings, that is, he be discharged, isn't the concrete and particular and imminent injury. The fact that
he has served 20 years, that's sort of irrelevant. MR. FREEBORNE: Well, Your Honor, in any case, he He has served
has not been the subject of the policy. without incident.
It makes it just like the stop cases that
we've cited and the choke hold case. THE COURT: He has been the subject of the policy. He has not been the subject of
MR. FREEBORNE:
discharge proceedings because he has operated within the confines of the statute. And so to use him as a basis to
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seek declaratory injunctive relief is improper under Lyons, Hodgers-Durgin and the other authority that we cited. THE COURT: MR. WOODS: Do you wish to respond? Yes, Your Honor. Thank you.
Colonel Doe has been injured every day of his service under "Don't Ask, Don't Tell." express his core identity. He is not allowed to
He is not allowed to engage in
the type of private consensual conduct that he might wish to engage in. And he's not even allowed to participate, as he So he has
ought to be allowed to participate, in this case. been injured every day.
There is no legal requirement, as the Government would like to suggest, that he must be discharged before he could have standing to sue. If you take the Government's
argument to its natural end, then no current member of the Armed Forces could challenge this statute prior to being discharged. No one. The thousands and thousands of our
Armed Forces, they would argue, no one could challenge it because you haven't been discharged. And then, Your Honor, here's what they would do next, as they did in this case before when we put in Mr. Nicholson to the case initially. They then argued that,
well, Mr. Nicholson has been discharged; therefore, he can't be the person who represents those people who are currently serving. So they want to have it both ways and they can't
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have it either way. Your Honor.
The position just doesn't make sense,
There's no case they've cited to you that says
the only injury that counts in this context is discharge. Assuming that we're right in our constitutional law analysis of this case, Colonel Doe's rights have been violated every day that he has been in the service since "Don't Ask, Don't Tell" was enacted. And that's the point
we're trying to make, that he has been injured. And, again, going back to the burden issue, and again, there is at least, Your Honor, a genuine issue of material fact about this that precludes summary judgment. THE COURT: Well, I mean there's at least two ways
of looking at what the injury is, and they're not necessarily mutually exclusive. But one of the injuries, going back to
the argument you made just a moment ago, your argument is that the Government is trying to have it both ways. one of the injuries is the discharge, the separation procedure. So if Colonel Doe is identified, then he would be At least
subject to -- according to the regulations and the statute that I've read, he would be subject to discharge under the policy. MR. WOODS: injury to him. conjectural. Correct. So that's a real risk of It's not
That's not speculative. It's real.
And, again, we tried to avoid that
by offering to stipulate with the Government that he would
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come forward and identify himself by name as long as no discharge proceedings were brought, and the Government refused to do that. THE COURT: But your argument, in the alternative,
is that there's another sort of injury that he suffers by virtue of the policy, but that's different from the standing injury, in a sense. MR. WOODS: I'm not sure it is, Your Honor. I mean
he has been injured by "Don't Ask, Don't Tell" even though he hasn't been discharged. He's been injured, as he stated in
his declaration, because he desires the same right to communicate the core of emotions and identity to others as granted to heterosexual members of the United States Armed Forces. In other words, he has to every day live a lie about That gives him standing to
who he is, and that's an injury.
bring a due process claim in this case. THE COURT: But the other type of injury that we've
been discussing, that is, the danger of discharge, is sufficient -MR. WOODS: THE COURT: MR. WOODS: Yes. -- as for a standing purpose. Yes, it is. And he's very concerned
about this risk by even the minimal participation that he's been involved in in this case. He's very concerned about the
fact that we've now told you that he is a lieutenant colonel,
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he's been in the Army Reserves for 20 years, he just got back from Iraq. He's very worried that the Government is trying So
to find out who he is so that they could discharge him. we think, Your Honor, for all the reasons you've already
articulated that there is standing, and, of course, there are no genuine issues about whether standing exists. THE COURT: All right. Let me last focus on some
of the issues regarding the timing of -- well, let me start with focusing on the evidentiary problems. As I said, I did not have a chance to review the plaintiff's filing this morning on the evidentiary problems, but before -- I haven't even looked at it, but before I decided that there was this threshold issue of standing in reviewing the motion, there were -- so I'm not even sure what I'm about to articulate as to the evidentiary deficiencies in the Government's moving papers are the subject of the evidentiary objections or whether my focus on the evidentiary deficiencies in the Government's moving papers are different ones than the plaintiff has objected to. But the moving papers in this case, to my recollection, almost none of the exhibits that were submitted in support of the moving papers could be considered by the Court. They are not authenticated by a declaration of
counsel to the extent that they could be so authenticated. The exhibits attached to the appendix of exhibits
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that are or purport to be excerpts of deposition transcripts do not bear the necessary certificate of the court reporter. Those can't be authenticated by a declaration of counsel. They have to have the certification of the court reporter. And there's a number of cases that set forth that requirement. Orr v. Bank of America is the case most that I So I would
usually cite in my orders with respect to that.
not be able to consider any of the deposition transcripts. And to the extent there's an objection that's been filed, I would sustain that objection. There's no declaration of counsel authenticating the other exhibits, so -- let's see. are deposition transcripts. The first four exhibits
The fifth one is an e-mail.
That would take a declaration of counsel, but I'm not -that's the one about being an honorary versus a dues paying member. So that's not authenticated and it's not a
self-authenticating document. Exhibit 6, again, it's not a self-authenticating document, but I think both sides have relied upon that document. That's the letter from Mr. Nicholson. I think if
both sides have relied upon it then that might be admissible. And Exhibit 7 is the letter from Mr. Nicholson's attorney, Mr. Cleghorn. I think the same thing applies. I
think both sides have relied on that.
If I'm correct about
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that, then Exhibits 6 and 7 could be considered, but the rest of them couldn't be, which would affect the extent to which the Court could consider some of the arguments raised in the moving papers. And as to the first four, even without an objection from the other side, the case law is clear that the Court should not consider the deposition transcripts without a court reporter's certification. So that especially affects
the Court's ruling on the substance of the motion, the merits of the motion, as to the substantive due process claim. There's certain portions of -- well, to a large extent, that would affect the Court's ruling on the substantive due process claim. If I'm correct in my recollection that Exhibit 6, I think it's 6 and 7, the letters regarding Mr. Nicholson, were relied on by both parties, then the Court could consider those. And those have more of an effect on the First
Amendment claim. Do you wish to be heard on that issue? MR. FREEBORNE: Your Honor, with respect to the
depositions, as you know, we were up against the discovery deadline. We did lodge all of the depositions that we had at
the time of the filing with the Court. THE COURT: Have the originals been lodged? Yes.
MR. FREEBORNE:
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THE COURT:
Then that would cure that. And with respect to the letters,
MR. FREEBORNE:
Mr. Hunnius and I have had communications about -- we actually, given that they were produced by the plaintiff -THE COURT: I don't think there's an issue. I just wanted to address them
MR. FREEBORNE:
With respect to -- we also did reference articles of
incorporation in our reply brief, and that was certified to by Secretary of State -THE COURT: Those are self-authenticating once
you've got the certification. MR. FREEBORNE: With apologies, we weren't trying
to run afoul, given the time for the depositions, and we have lodged all the depositions that we had at the time of filing. THE COURT: When did you lodge the depositions? Your Honor, I could find the day. It was before we filed. It
MR. FREEBORNE:
I don't have it handy right now.
was in accordance with whatever the rules say. time frame.
I forget the
But to be clear, we also had a read and sign issue given that most of the depositions were taken late in the day. So, again, Mr. Hunnius and I have discussed that. THE COURT: If you lodge the originals, then that
takes care of the certification issue. MR. FREEBORNE: Very well. Thank you.
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THE COURT:
Then let's turn lastly to the combined I'm thinking, unless either side
issues of the trial date.
-- I don't think I need any more briefing on the standing issue. On the merits issue, whether the parties want to come back and argue the merits, the only real issue that I would -- I'm not sure whether more argument is necessary. You could argue it briefly this afternoon. But if I were
inclined to -- having reread Witt and read everything that the parties have submitted in connection with the substantive due process claim, to hold that -- given that in Witt there wasn't a facial challenge as there is here, I mean there wasn't one even brought. It's not as though one was brought The only challenges brought in
and dismissed by the court.
Witt were an equal protection claim, a substantive due process claim, and a procedural due process claim. no facial claim brought. And, of course, what the Witt court held was that Philips v. Perry and some of the earlier Ninth Circuit holdings, which held that the most deferential standard of review applied, were no longer good law on the standard of review after the Lawrence case. So, in a sense, one could There was
look at Witt and say that the language in the Witt opinion about a different standard of review, and I quoted that language in the order on the motion to dismiss, would be
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better considered as dicta because, as I just said, there wasn't a substantive -- there wasn't a facial attack being considered by the court. So if I was to reconsider that ruling and hold what I would call the Witt standard, something more than the most deferential standard of review applied, let me ask the Government. First, does that change -- I mean, you've argued
in your papers that the policy withstands the deferential -an attack based on the most deferential standard. Does it
change your position if the Witt standard applies, which is kind of loosely defined as something more than the most deferential standard? MR. FREEBORNE: Well, Your Honor, I'm a little
confused because Your Honor ruled in June of last year the rational basis governs this case because this is not the as-applied challenge that was presented in Witt. So just
understanding Your Honor's question, are you now changing your ruling or thinking about changing your ruling? THE COURT: Yes. Your Honor, we believe we can
MR. FREEBORNE:
satisfy heightened scrutiny, but we have proceeded and argued, of course, based upon the rational basis test that was enunciated in the Court's June 9th decision. We don't
believe it changes the Salerno test, which is, we need only point to one conceivable constitutional application in this
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case.
And we believe Philips is still good law on that, and
that Congress could have, back in 1993, made the determinations that it did. As Your Honor is aware, we've
also relied upon the Western case which instructs that the Government -- Congress could have concluded back in 1993 that the policy was necessary for military effectiveness. That said, we believe we would also win under a Beller-type analysis. And we don't believe that Beller was We would take
disturbed in any way by the Witt decision. issue with the Court.
We don't believe that Philips was
overturned by Witt, but I think we've had that discussion in the past. But we do believe we could win under Beller and
the test and substantive due process analysis that was set forth there by Judge Kennedy. And we believe that that
analysis is particularly instructive here given that Judge Kennedy became Justice Kennedy and issued the Lawrence decision, and said pointedly that this is just a different sphere, that this is the military sphere and the courts are to defer to military judgment and Congress's judgment in exercising its constitutional authority. So, again, we believe we would prevail under either standard. We have been proceeding along the lines that were
set forth on the Court's June 9th decision order. THE COURT: Let me ask you. There was something in I
particular -- my color coding system has failed me.
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thought I had a green tab on the particular language I wanted to ask you about to follow up on that. In your moving papers, and let me give you some context, this is when you're discussing the policy and the background to its adoption in the hearings and so forth. recall the legislative history of it. You go on to talk I
about these 15 legislative findings that, of course, you urge the Court to apply deference to, but there's a quote that you include from the Senate Armed Services Committee. If you
have your papers there, it's on page 5 of the points and authorities starting at line 15 -MR. FREEBORNE: THE COURT: Yes, Your Honor. Among both
-- about sexual behavior.
heterosexuals and homosexuals sexual behavior is one of the most intimate and powerful forces in society. I won't go on
to read the whole quote, which is kind of lengthy, but the finding goes on to say, basically, that there's no presumption that the military has -- I would sort of characterize it as a matter of common sense -- in dealing with adults there's no presumption that everyone is going to remain celibate. editorializing. The bit about common sense, that's my It says, "When dealing with issues, the
Armed Services do not presume that service members will remain celibate." But the language in particular that I think is
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important that I wanted to ask you about in connection with all of this quote here is about the -- I would almost call it sort of an admission on the part of, for these purposes, the Government about the importance of this, because in terms of thinking of what the standard of review here is, when courts determine what standard of review to apply, one of the -well, let me start over a little bit. In looking at, you know, what was first a deferential standard and then the strict scrutiny and then there was an intermediate standard, I think what the Witt court enunciated was somewhere between the most deferential standard and the intermediate standard. But, in any event,
in all of the standards of review that courts have enunciated in looking at constitutional issues, one end of the balance is the right that's being considered. And here what we have
is this language about one of the -- pointing to one of the most intimate and powerful forces in society. So, I guess my question is, on the one hand what is being considered here is, it is conceded to be something that is so crucial and important at the same time the Government is saying we have to -- and we're admitting that we're not going to presume that adults are going to just forswear that important part of human life. Then doesn't that sort of cut
against the Government's position in this case, that a deferential standard of review should apply?
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MR. FREEBORNE:
Your Honor, it's a good question.
What this instructs the Court about is the fact that this is a conduct-based policy, and what Congress's determination back in 1993 was, that the same forces that dictate this policy exist within the genders. And we've recognized, for
example, with men and women, as we've discussed previously, separate accommodations are necessary between men and women to accommodate the sexual tension privacy rationale that we've discussed before. level of review. So that doesn't dictate a higher
With cases like Palmore and Lawrence and -You're right it doesn't dictate -- I
THE COURT:
didn't mean to suggest and maybe I worded the question poorly, because I don't mean -- you're correct. to suggest it dictates the standard of review. I don't mean Within the
standard of review that's selected, of course, the right that's being protected is one of the factors that's balanced, would be a better way of articulating my question. MR. FREEBORNE: On that issue, Your Honor, the
Court recognized in the equal protection analysis in the June 9th decision that there is no fundamental right to engage in homosexual consensual sex. endorse that. I mean Lawrence doesn't
So Your Honor has ruled that there is no such We believe rational basis is the
fundamental right.
governing standard, because you don't even have active rational basis review in a case like Palmore where the
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exclusive purpose was to single out a particular group based upon status, or in Lawrence where you have criminalization of the behavior, which is not present here. In Cleburne, again,
you're singling out a particular group that you don't happen to like. This is a conduct-based policy. And for that
reason, that's why courts have universally held, with the exception of Cook, and I'll get to Cook in a second which I think goes back to Your Honor's first question, have found a rational basis review is the appropriate standard. I don't want to fail to mention Cook. In Cook, as
Your Honor is aware, that heightened scrutiny was applied there and the policy was found to pass constitutional muster. Even under that standard faced with a motion to dismiss, the First Circuit found that. out. So, for all those reasons, we believe rational basis review applies; that even the more active form that you find in Romer doesn't apply, because the stated evidence is a conduct-based policy, not a status-based policy. to have considered this statute has so found. THE COURT: Mr. Woods. MR. WOODS: I'm not entirely sure what the original All right. Every court I just didn't want to leave that
question was, but let me start by talking about the Cook case
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which Mr. Freeborne just mentioned. First Circuit case. after Witt.
The Cook case is this
And the First Circuit decided that case
And the First Circuit in Cook said repeatedly And so it's
that it acknowledged that it disagreed with.
pointless for a court in this Circuit to talk about the Cook case or rely on the Cook case or even to be guided by the Cook case. We think, Your Honor, that we've briefed this issue and explained or tried to that some more -- some more active review than the lowest possible form of review is appropriate given Lawrence and Witt. It's not altogether clear what the
standard should be because Witt did not, as you point out, address a facial challenge. It didn't address it, so it
didn't rule on what standard to apply to a facial challenge. But I think there's no reason why the same standard of Witt wouldn't apply or, at a minimum, something in between the Witt standard and mere rational basis review ought to apply. That's because, in part, the importance of the rights
that are being effected here, and in part, because that's what the Circuit has done before when faced with this in cases like Beller. I think, Your Honor, also that regardless of what standard is applied, whether it's the lowest possible rational basis standard or some other standard, we have presented enough evidence to show you that there are genuine
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issues of material fact about whether the statute was constitutional when it was enacted, whether what we now know about the statute shows that it wasn't constitutional when enacted, and whether the situation has now changed. We've presented to you an enormous amount of evidence showing that there was no study done at the time to show that the policy furthered its stated objectives. We've
shown you that there were studies of foreign militaries at the time. It showed that a ban of homosexuals or homosexual
conduct was not necessary to further for purposes of the military to those countries. We've shown you that the policy We've shown you that
is disproportionately applied to women.
the policy is disproportionately applied in times of peace rather than war, which tells us that it really isn't enforced as it is supposed to be, if that's the purpose of it. We've
shown you that and much, much more in our opposition in the four volumes of evidence that we submitted, and as to which, Your Honor, there is no evidence submitted by the Government in response. What's important is the Government submitted some evidentiary objections to some of our evidence. There is no
evidentiary objection by the Government to a single piece of our expert's declaration in support of our opposition. And
what we filed today, Your Honor, was actually our response to the Government's evidentiary objections filed to our
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materials. Let me mention, Your Honor, the point that Mr. Freeborne suggested again about how you ought to defer to the military. And, again, as we've said, we're not asking
you to decide for the military how many tanks to buy or how many missiles to launch, we're asking you to rule on the constitutional rights of citizens of our country. And
deference to the military ought not mean abdication of the Court's traditional role in adjudicating constitutional rights. Witt is a good example of that. We cited other
cases in our opposition to the Government's motion on that. The Government didn't dispute at all our citation of the Hamdi case, H-A-M-D-I, the Hamdan case, H-A-M-D-A-N. And so
there's no doubt this Court ought not defer to the military on important constitutional rights. I continue, Your Honor, to find it curious that the Government is asking you to, again, defer to the military on this, because what the Government's current military leaders are saying is in our opposition papers, not in the Government's papers. And there's no response in the
Government's reply to the evidence that we've put forth about the views of the military leaders today. These are
admissions against the Government's interest about whether there is or isn't a rational basis. We cited to you Colin Powell's statements in
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February of 2010, that circumstances have changed since "Don't Ask, Don't Tell" was enacted, and the Government did not reply to that. We have President Obama's statements as Commander in Chief that "Don't Ask, Don't Tell," quote, doesn't contribute to our national security, close quote, and, quote, weakens our national security, close quote. And that "Don't
Ask, Don't Tell" -- I'm sorry, and that reversing "Don't Ask, Don't Tell," quote, is essential for our national security. Again, there's no response by the Government in its reply papers to these admissions against its interests. The Government also ignored and didn't respond to admissions made by Admiral Mullen, the General of the Joint Chiefs of Staff who said that he was not aware of any studies or any evidence that suggests that repealing "Don't Ask, Don't Tell" would undermine unit cohesion. And Secretary Gates also said that what they need to address in some study that's going on now are assertions that have been made for which we, quote, have no basis in fact. And, again, the Government didn't respond to this. So
it's a little curious that the Government would be arguing about deferring to the military when the military is on our side, for lack of a better word. And I guess, Your Honor, it's because the Government's brief and all the cases it cites are out of the
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'90s.
What we have here in the Government's motion are Colin
Powell's statements from the '90s and people's statements from the '90s as if that's Gospel truth that you must accept and there's no way to challenge a law that is passed because there is some congressional finding that might support it. Your task here is to review whether that was or wasn't rational under whichever standard you decide to employ. You know, the Government is citing Beller in its motion three times and, you know, the Witt court held, quote, we also conclude that our holding in Beller is no longer good law. The Government cites the Holmes case in its motion and
its reply, and you have already ruled that the Lawrence case, quote, removed the foundation on which Holmes rested, close quote, and that Lawrence, quote, dissolved, close quote, your words again, the foundation on which Holmes rested. from your June 9 order at page 18. The main case cited by the Government's motion is the Philips case. This Court has already ruled that that is That's
an equal protection case and that that makes a difference here, because Lawrence treated equal protection of due process separately, and Lawrence doesn't support the Government's arguments about Philips. You ruled that in your
July 24, 2009 order when we were arguing about discovery. You said then, quote, accordingly, the Court does not find that Perry's equal protection holding forecloses relief for
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plaintiff's substantive due process claims. So, I guess, Your Honor, I would say this: We
argued a motion to dismiss the due process claim some time ago. What the Government is doing now is basically asking
you to review or revisit that decision without any real reason to do that. It's arguing the same points, citing the
same cases, and we're right back where we were some time ago. The only so-called evidence that the Government has provided in support of its motion are just a few snippets from testimony from the congressional hearings. That's all.
And we have provided you with, you know, a voluminous amount of evidence that we think is admissible, much of which is unchallenged, to show you that there are entities, again, genuine issues of material fact, regardless of which standard you decide to employ. THE COURT: MR. WOODS: All right. I'm happy to answer any other
questions, Your Honor. THE COURT: I appreciate that.
I think what I'm going to do is to take the motion under submission. If I feel that, and I may, but if I feel
that I need to have further argument on the merits, we will notify the parties and pick a date that's convenient for both sides. At this point I don't think I'm going to need to have
any further argument.
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As to your trial date, what is the current status of that, even apart from the issues created by the delay of getting a ruling to you on the motion because of this threshold issue of standing? Everything was good for
June 15th until last Wednesday when, you know, it's like a series of Dominoes. Everything was great until I had a
criminal case that was supposed to start, and I won't give you all the gory details, but there was a little issue between the defendant and his attorney, and as a result of that there is a short -- and it's a case that really is going to go to trial, and so I had to grant a short continuance of that trial which was supposed to start on May the 4th. So
it's now starting on May the 18th, which wouldn't be so bad except that because of that, the civil case that was starting behind it, which would have been finished in time for your case to start on June 14th, now has to follow that case. so by the time I finish that civil case, I probably would have had to continue your case about one week anyway. Let's see. Do I have that right? So I probably And
wouldn't have been able to start your case until the end of -- I would have had to continue your case about two weeks which is, in fact, out. So, I mean, all of which could
change if I'm wrong and the defendant in my criminal case decides tomorrow to plead, but I don't think that will happen.
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So your case was supposed to start on June 15th. Realistically, probably -- so the last of your pretrial documents were due around the middle of May. your trial -- what are your schedules? difficult for people. So if we move
I know summer is I
If you have vacations, speak up.
realize you may have to contact your witnesses and so forth. What I'm looking at for a trial date for you now is probably, oh, about the first week of July. You look pained, Mr. Freeborne. MR. FREEBORNE: I'm blanking on a week. I do have
something planned I believe the first week in July. THE COURT: Any time -- I'm going to give you --
this is an older case, so I'm going to give you all priority for trial, but if you have plans -MR. FREEBORNE: have to check. THE COURT: I'm just letting you know. I'm going If I could alert the Court, I just
to try to set it on a date in July that's good for everyone, so check your witnesses, check your calendars, and -MR. FREEBORNE: THE COURT: Your Honor, can I just be heard?
Certainly. I'm sorry. We would ask for
MR. FREEBORNE:
additional briefing on a few of the standing issues that the Court raised today on the Loux case, McLaughlin and Lujan, particularly the intersection or the comparison between class
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certification and associational standing. could afford the Court with -THE COURT: All right.
We believe that we
Ten pages, no more than
ten pages by a week from today. MR. FREEBORNE: And we would also like to depose
Mr. Meekins on the standing issue, and particularly on the transfer issue, which seems to be critical in this case, the transfer of the monies. We're not asking at this juncture to
depose Colonel Doe, but we do believe we are entitled to a deposition of Mr. Meekins. And I also have some points on the substantive due process point. I can basically condense them down to, what
Your Honor is looking at in this trial is just a replay of 1993. The foreign militaries, yes. Congress had before it
the comparison between foreign militaries and all of the evidence that plaintiff is going to be providing to you during the course of this trial, which is a replay of 1993, which we believe is inappropriate on a rational basis review. And military judgments are just not susceptible to empirical proof. So the thesis of Mr. Woods' argument, the plaintiff's
argument, is that because this policy is not somehow susceptible to empirical proof, it's necessarily invalid. THE COURT: you've -MR. FREEBORNE: I was trying to condense it, but I I think that's been briefed. I think
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did want to be heard on that issue, because we believe very strongly that, A, this type of review is inappropriate, but, B, it's just a replay of 1993, and the appropriate place to consider this policy is within the political domain, not in this court. THE COURT: Well, if you want to include that I think you've briefed it.
within your ten pages, you may.
I think both sides have briefed it, but you can argue it further, if you wish, in a supplemental briefing. Both sides
may file a supplemental brief by a week from today. Now, as to the deposition of Mr. Meekins, let me think about that. MR. FREEBORNE: issue of fact. Mr. Woods has said it's a genuine
We seek to explore that issue of fact. This case is being tried to the Court,
THE COURT:
so I'm not inclined to -- well, it goes without saying this case -- I mean, on the one hand, every case is unique and has to be looked at uniquely. On the other hand, this case has
to be treated in a procedural fashion like any other case. After a summary judgment motion and after discovery is cut off and if a triable issue of fact has been shown to exist, there isn't discovery about it. It's over. So, I'm not
inclined to -- assuming that I deny the motion, I'm not inclined to allow further discovery on that issue. I'll
think about that, but I'm not inclined to allow further
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discovery, especially given that this is a case that's going to be tried to the Court. MR. FREEBORNE: Your Honor, all we're asking for
is, if this issue is going to be tried before the Court, that we properly prepare for trial by being allowed to depose a witness that was not identified by plaintiff in their 26(f) disclosures. We would seek to depose Mr. Meekins on this
critical issue, this threshold issue. THE COURT: I know what you're asking. I
understand what you're asking. unlikely I'm going to allow it. going to allow it.
I'll consider that, but it's Well, it's unlikely I'm
There might be other limited discovery
that could take place, such as written interrogatories, very limited written interrogatories that I'd consider. A
deposition by written interrogatories, something like that. I'll consider the request. All right. So the parties should confer about a
trial date sometime in -- the earliest possible date in July that the parties can agree upon that's satisfactory to your schedules and to your witnesses. And you might submit a And then I will
couple of dates that are mutually agreeable.
give you notice of the continued trial date and pretrial conference date. MR. WOODS: that to Your Honor? How would you like us to communicate
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THE COURT:
By virtue of a stipulation.
If you're
not able to agree, then at least set forth what the difficulties are and what your first, second, and third choices are, I suppose, in writing. Thank you very much. The motion will stand submitted as of a week from today when your briefs are due. (Proceedings concluded) ---o0o---
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C E R T I F I C A T E DOCKET NO. CV 04-8425 VAP I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and accurate transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
/S/ Phyllis Preston PHYLLIS A. PRESTON, CSR Federal Official Court Reporter License No. 8701
DATED:
May 18, 2010
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1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) non-profit corporation, ) 12 ) Plaintiff, ) 13 ) ) v. 14 ) UNITED STATES OF AMERICA ) 15 and DONALD H. RUMSFELD, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ 18 19 Case No. CV 04-08425-VAP (Ex) [Motion filed on March 29, 2010] ORDER DENYING IN PART MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Log Cabin Republicans, ("Plaintiff" or "Plaintiff
20 association"), a nonprofit corporation whose membership 21 includes current, retired, and former homosexual members 22 of the U.S. armed forces, challenges as "restrictive, 23 punitive, . . . discriminatory," and unconstitutional the 24 "Don't Ask Don't Tell" policy ("DADT Policy") of 25 Defendants United States of America and Robert M. Gates 26 ("Defendants"), including both the statute codified at 10 27 U.S.C. section 654 and the implementing instructions 28 appearing at Department of Defense Instructions("DoDI" or
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1 "implementing instructions") 1332.14, 1332.30, and 2 1304.26. 3 judgment. 4 5 6 A. 7 The DADT Policy The DADT Policy includes both the statutory language I. BACKGROUND Defendants now move for entry of summary
8 appearing at 10 U.S.C. section 654 and the implementing 9 instructions appearing as DoDIs 1332.14, 1332.30, and 10 1304.26. DADT can be triggered by three kinds of
11 "homosexual conduct:" (1) "homosexual acts"; (2) 12 statements that one "is a homosexual"; or (3) marriage 13 to, or an attempt to marry, a person of ones same 14 biological sex. 10 U.S.C. 654 (b); DoDI 1332.14 at
15 1718; 1332.30 at 910. 16 17 18 1. "Homosexual Acts"
First, Defendants may "initiate separation
19 proceedings" i.e., begin the process of removing an 20 active service member from military ranks if a service 21 member engages in a "homosexual act," defined as "(A) any 22 bodily contact, actively undertaken or passively 23 permitted, between members of the same sex for the 24 purpose of satisfying sexual desires; and (B) any bodily 25 contact which a reasonable person would understand to 26 demonstrate a propensity or intent to engage in an act 27 28
2 213
1 described in subparagraph (A)." 2 (f)(3). 3 4 5 2.
10 U.S.C. 654 (b)(1),
Statements About One's Homosexuality
Second, Defendants may initiate separation if a
6 service member makes a statement "he or she is a 7 homosexual or bisexual, or words to that effect." 8 U.S.C. 654(b)(2). 10
These words create a presumption the
9 service member is a "person who engages in, attempts to 10 engage in, has a propensity to engage in, or intends to 11 engage in homosexual acts." 10 U.S.C. 654(b)(2). A
12 propensity is "more than an abstract preference or desire 13 to engage in homosexual acts; it indicates a likelihood 14 that a person engages or will engage in homosexual acts." 15 DoDI 1332.14 at 18. 16 17 18 19 3. Marriage or Attempted Marriage to a Person of the Same Sex The third route to separation under DADT, marriage or
20 attempted marriage to a person of the same sex, is self21 explanatory. 22 23 24 4. Discharge Once Defendants find a service member has engaged in
25 "homosexual conduct," as defined above, Defendants will 26 discharge him or her unless the service member can 27 demonstrate that, inter alia, such acts are not his or 28
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1 her usual or customary behavior and that he or she has no 2 propensity to engage in "homosexual acts." 3 654(b)(1); DoDI 1332.14 at 18. 4 5 B. 6 Plaintiff and Its Members According to the Complaint, Plaintiff Log Cabin 10 U.S.C.
7 Republicans ("Plaintiff") is a nonprofit corporation 8 organized under the laws of the District of Columbia, is 9 associated with the Republican Party, and is dedicated to 10 the interests of the gay and lesbian community.1 11 12 John Alexander Nicholson is a member of Plaintiff Mr. Nicholson enlisted in the United
13 organization.
14 States Army in 2001; the Army discharged him one year 15 later pursuant to the DADT Policy. (Declaration of John Mr.
16 Alexander Nicholson ("Nicholson Decl.") 3, 56.) 17 Nicholson signed up to be included in Plaintiff's 18 database in April of 2006. 19 ("SGI") at 6:520.) (Stmt. of Genuine Issues
In 2006, Plaintiff's Georgia chapter (Id.) Mr.
20 awarded Mr. Nicholson honorary membership.2 21

1
Although neither Defendants in their Motion nor Plaintiff in its Opposition point to any evidence 23 concerning the corporate form of Plaintiff, the nature of Plaintiff organization does not appear to be in dispute. 24 2 Although Defendants argue "the record contains no evidence that the national board of directors ever 25 granted 'honorary membership' to Mr. Nicholson," 26 Plaintiff has submitted evidence, in the form of the Declaration of Jamie Ensley, that the Georgia Chapter of 27 Plaintiff organization granted Mr. Nicholson honorary membership. (See Decl. of Jamie Ensley ("Ensley Decl.") (continued...) 28 22
4 215
1 Nicholson has attended several of Plaintiff's national 2 conventions, (id.), and addressed Plaintiff's national 3 convention in 2006. 4 5 John Doe is also a member of Plaintiff organization. He joined (Decl. (SGI at 5:116:4.)
6 (Decl. of John Doe ("Doe Decl.") 2.)
7 Plaintiff at some time before October 12, 2004. 8 of C. Martin Meekins ("Meekins Decl.") 3.)
John Doe is
9 an officer in the United States Army Reserves who 10 recently completed a tour of duty in Iraq. 11 7:58:10; Doe Decl. 4.) (SGI at
Lt. Col. Doe is gay and wishes (Doe
12 to continue his service in the United States Army. 13 Decl. 2, 6.)
He believes that identifying himself in
14 this action would subject him to investigation and 15 discharge under the DADT Policy. 16 17 C. 18 Procedural History Plaintiff filed its Complaint on October 12, 2004. (Doe Decl. 8.)
19 On December 13, 2004, Defendants moved to dismiss the 20 Complaint, alleging, inter alia, that Plaintiff lacked 21 standing. The Honorable George P. Schiavelli granted the
22 motion to dismiss the Complaint with leave to amend on 23 March 21, 2006. 24 25 26 27 (...continued) 28 4.)
5 216
2
On April 28, 2006, Plaintiff filed timely its Amended
2 Complaint, attaching the declaration of Mr. Nicholson. 3 According to the Amended Complaint, the DADT Policy 4 violates the First and Fifth Amendments to the U.S. 5 Constitution by violating guarantees to: (1) substantive 6 due process; (2) equal protection; and (3) freedom of 7 speech. On June 11, 2007, Plaintiff filed the
8 declaration of Lt. Col. Doe, a current member of 9 Plaintiff organization, a homosexual, and a current U.S. 10 Army reservist on active duty. 11 12 On June 12, 2006, Defendants moved to dismiss the On May 23, 2008, Judge Schiavelli
13 Amended Complaint.
14 entered an order staying this action in light of the 15 Ninth Circuit's May 21, 2008 decision in Witt v. Dep't of 16 the Air Force, 527 F.3d 806 (9th Cir. 2008). After the
17 case was transferred to this Court in late 2008, the 18 Court heard the motion to dismiss, and denied it on June 19 9, 2009. On November 24, 2009, the Court denied a motion
20 by Defendants to certify its June 9, 2009 Order for 21 interlocutory appeal. 22 23 On March 29, 2010, Defendants filed this Motion for Plaintiff's Opposition and Defendants' On April 21, 2010, the Court
24 Summary Judgment.
25 Reply were filed timely.
26 provided the parties with its tentative ruling relating 27 to standing. 28

6 217
On April 22, 2010, Plaintiff filed a
1 supplemental memorandum of points and authorities in 2 support of its Opposition, and on April 23, 2010, 3 Defendants filed a response to Plaintiff's supplemental 4 brief. On April 26, 2010, Plaintiff submitted the The
5 Meekins Declaration in support of its Opposition.
6 Court held a hearing on the Motion on April 26, 2010, and 7 granted the parties leave to submit further supplemental 8 briefing concerning standing; both sides timely filed 9 additional briefs on May 3, 2010. 10 11 D. 12 Evidentiary Objections The only evidentiary objection the Court need address
13 in order to resolve the threshold issue of standing is 14 Defendants challenge to consideration of the Meekins 15 declaration. 16 17 Defendants argue that the Court should strike the
18 Meekins Declaration because Plaintiff failed to disclose 19 Mr. Meekins as a witness during discovery. Defendants
20 are correct that where a party fails to disclose the 21 identity of a witness required by either Rule 26(a) or 22 otherwise requested during discovery without substantial 23 justification, the party may not later rely on evidence 24 from that witness. See Wong v. Regents of Univ. of Cal.,
25 410 F.3d 1052, 1062 (9th Cir. 2005); Fed. R. Civ. P. 26 37(c)(1). 27 28
7 218
Defendants' challenge to the declaration fails for First, Rule 26(a) only requires a
2 two reasons, however.
3 party to disclose the identity of persons "the disclosing 4 party may use to support its claims or defenses." 5 R. Civ. P. 26(a)(1)(A)(i). Fed.
The Meekins Declaration is
6 offered solely to rebut Defendants' challenge to 7 Plaintiff's standing to bring this lawsuit, by 8 establishing Lt. Col. Doe's membership in Plaintiff 9 organization at the time the action commenced. Mr.
10 Meekins does not offer any testimony relating to the 11 merits of Plaintiff's claims for relief. Accordingly,
12 disclosure of Mr. Meekins' identity was not required by 13 Rule 26(a). Defendants have pointed to no written
14 discovery request they propounded upon Plaintiff that 15 would have called for identification of Mr. Meekins. 16 Plaintiff thus was not obligated to disclose Mr. Meekins' 17 identity during discovery. 18 19 Furthermore, assuming disclosure was required either
20 by Rule 26(a) or an as-yet unidentified discovery 21 request, substantial justification exists for Plaintiff's 22 failure to disclose Mr. Meekins' identity during 23 discovery. Defendants have known that Plaintiff sought
24 to use Lt. Col. Doe's membership as the basis of its 25 claim to standing for almost three years, yet never 26 challenged the timing of his membership in Plaintiff 27 28
8 219
1 organization.3
The ambiguity that caused the Court to
2 question when Lt. Col. Doe became a member of Plaintiff 3 organization appears clearly on the face of the Doe 4 Declaration, which has been in Defendants' possession 5 since June 11, 2007. Based on Defendants' silence in the
6 face of the Doe Declaration, Plaintiff reasonably may 7 have believed that the timing of Lt. Col. Doe's 8 membership was not in dispute. Plaintiff thus would have
9 had no reason to seek out additional evidence of the date 10 on which Lt. Col. Doe joined Plaintiff organization, let 11 alone disclose such evidence. 12 13 For the foregoing reasons, the Court DENIES
14 Defendants' request to strike the Meekins Declaration. 15 16 17 II. LEGAL STANDARD A motion for summary judgment shall be granted when
18 there is no genuine issue as to any material fact and the 19 moving party is entitled to judgment as a matter of law. 20 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 21 477 U.S. 242, 247-48 (1986). The moving party must show
22 that "under the governing law, there can be but one 23 reasonable conclusion as to the verdict." 24 U.S. at 250. 25 26 Defendants did not raise this issue in their Motion; it was raised by the Court sua sponte in its tentative 27 ruling distributed to the parties before the April 26, 28 2010 hearing.
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3
Anderson, 477
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1 2 Generally, the burden is on the moving party to
3 demonstrate that it is entitled to summary judgment. 4 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 5 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 6 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears
7 the initial burden of identifying the elements of the 8 claim or defense and evidence that it believes 9 demonstrates the absence of an issue of material fact. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 12 Where the non-moving party has the burden at trial,
13 however, the moving party need not produce evidence 14 negating or disproving every essential element of the 15 non-moving partys case. Celotex, 477 U.S. at 325.
16 Instead, the moving partys burden is met by pointing out 17 that there is an absence of evidence supporting the non18 moving partys case. Id. The burden then shifts to the
19 non-moving party to show that there is a genuine issue of 20 material fact that must be resolved at trial. Fed. R.
21 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 22 U.S. at 256. The non-moving party must make an
23 affirmative showing on all matters placed in issue by the 24 motion as to which it has the burden of proof at trial. 25 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See
26 also William W. Schwarzer, A. Wallace Tashima & James M. 27 Wagstaffe, Federal Civil Procedure Before Trial 14:144. 28
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1 A defendant has the burden of proof at trial with respect 2 to any affirmative defense. Payan v. Aramark Mgmt.
3 Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007). 4 5 A genuine issue of material fact will exist "if the
6 evidence is such that a reasonable jury could return a 7 verdict for the non-moving party." 8 248. Anderson, 477 U.S. at
In ruling on a motion for summary judgment, the
9 Court construes the evidence in the light most favorable 10 to the non-moving party. Barlow v. Ground, 943 F.2d
11 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v. 12 Pacific Elec. Contractors Assn, 809 F.2d 626, 630-31 13 (9th Cir. 1987). 14 15 16 A. 17 Standing Defendants argue they are entitled to summary III. DISCUSSION
18 judgment because Plaintiff lacks standing to bring this 19 action. 20 21 "To satisfy Article III's standing requirement,
22 [plaintiffs] must demonstrate: (1) they suffered or will 23 suffer an 'injury in fact' that is concrete, 24 particularized, and actual or imminent; (2) the injury is 25 fairly traceable to [defendant's] challenged action; and 26 (3) the injury is likely, not merely speculative, and 27 will be redressed by a favorable decision." 28
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Biodiversity
1 Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2 2002); see also Lujan v. Defenders of Wildlife, 504 U.S. 3 555, 56061 (1992). Plaintiff, as the party invoking
4 federal jurisdiction, bears the burden of establishing 5 its standing. See Lujan, 504 U.S. at 561; Chandler v.
6 State Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 7 2010). 8 9 An association has standing to sue on behalf of its
10 members when "(a) its members would otherwise have 11 standing to sue in their own right; (b) the interests it 12 seeks to protect are germane to the organization's 13 purpose; and (c) neither the claim asserted nor the 14 relief requested requires the participation of individual 15 members in the lawsuit." Hunt v. Wash. State Apple
16 Adver. Comm'n, 432 U.S. 333, 343 (1977). 17 18 Plaintiff has identified two of its members who, it
19 argues, have standing to sue in their own right and thus 20 confer standing on it: John Doe and John Alexander 21 Nicholson. Defendants do not dispute the second and
22 third prongs of Hunt's associational standing elements as 23 to Lt. Col. Doe and Mr. Nicholson, nor do they dispute 24 that Mr. Nicholson has standing to sue in his own right. 25 Defendants argue, instead, that Lt. Col. Doe and Mr. 26 Nicholson are not bona fide members of Plaintiff. 27 Defendants further argue that Lt. Col. Doe lacks standing 28
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1 to sue in his own right because he has not yet been 2 discharged from the military, and thus any harm to him 3 from the DADT Policy is speculative. Defendants also
4 argue that even if Lt. Col. Doe and Mr. Nicholson were 5 bona fide members with standing to sue in their own 6 right, they were not members at the time this action 7 commenced, and the Court therefore lacks subject matter 8 jurisdiction. Finally, Defendants argue that Plaintiff
9 cannot proceed without disclosing Lt. Col. Doe's 10 identity. 11 12 At the threshold, the Court must determine the date
13 on which Plaintiff's standing should be evaluated. 14 Defendants argue the Court should examine Plaintiff's 15 standing as of the date the action was initiated, i.e., 16 the date the original Complaint was filed October 12, 17 2004. Plaintiff, on the other hand, contends the Court the date
18 should inquire whether standing existed as of
19 the First Amended Complaint was filed, April 28, 2006. 20 21 As a general matter, "[s]tanding is determined at the
22 time of the lawsuit's commencement, and [the Court] must 23 consider the facts as they existed at that time the 24 complaint was filed." Skaff v. Meridien N. Am. Beverly
25 Hills, LLC, 506 F.3d 832, 850 (9th Cir. 2007) (citing 26 Lujan, 504 U.S. at 569 n. 4); see also Friends of the 27 Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180 28
13 224
1 (2000) ("[W]e have an obligation to assure ourselves that 2 [plaintiff] had Article III standing at the outset of the 3 litigation."). 4 5 Plaintiff urges that this case falls within an In his March 21, 2006
6 exception to the general rule.
7 Order, Judge Schiavelli dismissed Plaintiff's original 8 Complaint and granted Plaintiff leave to file a First 9 Amended Complaint. Relying on Loux v. Rhay, 375 F.2d 55,
10 57 (9th Cir. 1967), Plaintiff argues that "[t]he 11 dismissal of Log Cabin's original complaint and the 12 filing of the first amended complaint rendered the 13 original complaint of no legal effect and obsolete." 14 (Pl.'s Apr. 22, 2010 Mem. of P. & A. at 1:1920.) 15 support of this argument, Plaintiff cites County of 16 Riverside v. McLaughlin, 500 U.S. 44 (1991). 17 2:143:2.) 18 19 In McLaughlin, the class members claimed that the (Id. at In
20 County of Riverside had violated their Constitutional 21 rights when it failed to provide persons subject to 22 warrantless arrest with timely probable cause 23 determinations. McLauglin, 500 U.S. at 47. The original
24 complaint in McLaughlin, filed in August 1987, named a 25 single plaintiff. Id. at 48. The second amended
26 complaint, filed in July 1988, named three additional 27 plaintiffs. 28

14 225
Id. at 4849.
In response to the
1 defendants' argument challenging the standing of the 2 named plaintiffs, the Court examined the facts relating 3 to standing as set forth in the second amended complaint, 4 not the original complaint. 5 6 Defendants attempt to avoid the effect of McLaughlin Id. at 5052.
7 by arguing that the Supreme Court analyzed standing as of 8 the date the second amended complaint was filed because 9 new named plaintiffs were added in the second amended 10 complaint, and the claims of these new plaintiffs were 11 not included in the case before that date. 12 unpersuasive, however. This is
The procedural posture of this
13 case closely resembles that before the Court in 14 McLaughlin. Just as a class must identify a named
15 plaintiff with standing, so too must an association 16 seeking to assert claims of its members identify an 17 individual member with standing. Although it is true
18 that there has been but one named plaintiff here for the 19 duration of the action, an association that newly 20 identifies a member for standing purposes is analogous to 21 a class that newly identifies a class member with 22 standing. Accordingly, the analysis of McLaughlin
23 applies here, and the critical date for standing is the 24 date the First Amended Complaint was filed April 28, 25 2006. 26 27 28
15 226
Turning to the specific standing arguments raised by
2 the parties with respect to Lt. Col. Doe and Mr. 3 Nicholson, the Court finds each of these challenges, too, 4 lacks merit. 5 6 7 1. John Doe
Defendants raise three principal objections to
8 Plaintiff's use of Lt. Col. Doe to confer standing: (1) 9 he does not have standing to sue in his own right; (2) he 10 was not a member of Plaintiff at the time the original 11 Complaint was filed; and (3) Plaintiff may not rely on 12 John Doe for standing without identifying him by name. 13 The Court addresses each argument in turn. 14 15 16 a. Imminence of Harm
Defendants contend that because Lt. Col. Doe has not
17 been discharged from the military yet, any harm to him is 18 too speculative to constitute the actual or imminent harm 19 required for standing. 20 21 The Supreme Court has rejected the argument that a (Mot. at 11:812:17.)
22 plaintiff lacks standing to challenge the 23 constitutionality of a statute merely because the statute 24 has not been enforced against him yet. Instead, the
25 Court has long held that so long as there is a reasonable 26 threat of enforcement, "it is not necessary that 27 petitioner first expose himself to actual arrest or 28
16 227
1 prosecution to be entitled to challenge a statute that he 2 claims deters the exercise of his constitutional rights." 3 Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also, 4 e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 5 12829 (2007) ("[W]here threatened action by government 6 is concerned, we do not require a plaintiff to expose 7 himself to liability before bringing suit to challenge 8 the basis for the threat for example the 9 constitutionality of a law threatened to be enforced."); 10 Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 11 477 U.S. 619, 626 n. 1 (1986). 12 13 Here, the DADT Policy on its face shows that there is
14 a reasonable threat that it will be enforced against Lt. 15 Col. Doe if the military learns his identity. The
16 language of the DADT Policy is mandatory, see 10 U.S.C. 17 654(b)(2) ("A member of the armed forces shall be 18 separated from the armed forces . . . if . . . the member 19 has stated that he or she is a homosexual . . . .") 20 (emphasis added), and does not leave the armed forces any 21 discretion about enforcing the policy where a 22 servicemember is unable to rebut a finding that he or she 23 is "a person who engages in, attempts to engage in, has a 24 propensity to engage in, or intends to engage in 25 homosexual acts." Id. Lt. Col. Doe has stated that he
26 is homosexual (see Doe Decl. 2); the mandatory nature 27 of the DADT Policy requires it be applied to him if he is 28
17 228
1 identified.
Furthermore, Defendants do not dispute that
2 many service members have been discharged previously 3 under the DADT Policy, or that the DADT Policy will 4 continue to be applied to persons who admit to being 5 homosexuals. 6 7 Indeed, Defendants have not argued that it is even
8 within their discretion to decline to initiate separation 9 proceedings against Lt. Col. Doe if he were identified. 10 In fact, they are unwilling to stipulate not to initiate 11 such proceedings against him were his identity revealed 12 for purposes of this litigation. Defendants have offered
13 no evidence suggesting that the DADT Policy will not be 14 enforced against Lt. Col. Doe. 15 16 Defendants' legal authorities do not establish that In
17 no imminent threat of harm to Lt. Col. Doe exists.
18 support of their argument, Defendants rely on City of Los 19 Angeles v. Lyons, 461 U.S. 95 (1983), Nat'l Treasury 20 Employees Union v. Dep't of the Treasury, 25 F.3d 237 21 (5th Cir. 1994), and Hodgers-Durgin v. de la Via, 199 22 F.3d 1037 (9th Cir. 1999). 23 24 Lyons is easily distinguishable from the facts here.
25 In Lyons, the Supreme Court held that a plaintiff did not 26 have standing to obtain injunctive relief preventing the 27 Los Angeles Police Department from enforcing an unwritten 28
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1 policy that officers employ choke holds to restrain 2 suspects who pose no threat of deadly force to officers. 3 Lyons, 461 U.S. at 98, 11113. In Lyons, there was
4 substantial uncertainty as to whether or not the 5 plaintiff would engage in future activity sufficient to 6 arouse the suspicions of police officers and if he did, 7 whether or not the police officers would enforce the 8 unwritten alleged choke hold policy. See id. at 10506.
9 The Court recognized there was nothing about the 10 plaintiff that made it more likely the policy would be 11 applied to him than any other individual. See id. at 111
12 ("[Plaintiff] is no more entitled to an injunction than 13 any other citizen of Los Angeles.") 14 15 16 Here, by contrast, the DADT Policy is non-
17 discretionary and based on a single criterion which Lt. 18 Col. Doe meets. 19 applied to him. There is no reason to doubt it will be His testimony that he is gay certainly
20 suffices to raise a triable issue of material fact as to 21 imminent harm. 22 23 National Treasury similarly fails to support There, the Fifth Circuit found the (See Doe Decl. 2.)
24 Defendants' position.
25 plaintiff organization lacked standing because the 26 plaintiff had "not even alleged that there is a threat of 27 such an injury to any individual member of the 28
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1 association," Nat'l Treasury, 25 F.3d at 242, not because 2 the policy it challenged had not been enforced against 3 any of its members. Here, Plaintiff has identified Lt.
4 Col. Doe as a member to whom a threat exists. 5 6 Finally, Hodgers-Durgin does not support Defendants' The named plaintiffs in Hodgers-Durgin sought
7 position.
8 to enjoin an alleged Border Patrol practice of stopping 9 motorists in violation of the Fourth Amendment. Although
10 Defendants maintain that the Ninth Circuit found the 11 named plaintiffs lacked standing, the Ninth Circuit's 12 holding actually was two-fold: (1) the named plaintiffs 13 sufficiently alleged a "case or controversy" for
14 purposes of Article III standing, but (2) failed to show 15 a likelihood of substantial and immediate irreparable 16 injury for the purposes of obtaining a preliminary 17 injunction. See Hodgers-Durgin, 199 F.3d at 104144.
18 The standard for obtaining injunctive relief, of course, 19 is different from the standard for establishing standing, 20 as evidenced by the Ninth Circuit's decision. 21 22 23 b. When John Doe Became A Member of Plaintiff
John Doe began paying membership dues to Plaintiff
24 before the filing of the Original Complaint in 2004. 25 (Meekins Decl. 4.) Although he apparently took
26 measures to protect against disclosure of his identity 27 including paying his membership dues through a member of 28
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1 Plaintiff's national board rather than directly to the 2 organization, (see id.) he appears to have become a 3 dues-paying member before the Original Complaint was 4 filed. 5 6 Summary judgment is inappropriate here whether the
7 Court applies April 28, 2006 or October 12, 2004 as the 8 appropriate date for its standing analysis. As discussed
9 above, Plaintiff here must demonstrate it had standing to 10 bring suit as of April 28, 2006, the date the First 11 Amended Complaint was filed. Lt. Col. Doe was
12 indisputably a member of Plaintiff before that date. 13 Even assuming arguendo that Defendants are correct in 14 their assertion that Plaintiff must establish it had 15 standing as of the date the original complaint was filed, 16 however, there is at a minimum a genuine issue of fact as 17 to whether or not Lt. Col. Doe was a member of Plaintiff 18 association on that date. 20 basis.4 21 22 23 24 25 Defendants further appear to argue that Lt. Col. Doe was not a bona fide member of Plaintiff organization at 27 any time. (See Mot. at 11:68.) As discussed above, however, it is clear that Lt. Col. Doe was a dues-paying 28 member of Plaintiff organization. 26
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4
(See id. 34.)
This
19 genuine issue of fact precludes summary judgment on this
1 2
c.
Proceeding Pseudononymously
Finally, Defendants argue that Plaintiff should not
3 be allowed to proceed without identifying Lt. Col. Doe by 4 name, and that by allowing them to do so, the Court is 5 departing from its March 21, 2006 ruling. 6 May 3, 2010 Mem. of P. & A. at 5:117:23.) (See Defs.' The Court has
7 already held that this case presents the rare set of 8 circumstances in which anonymity is appropriate, however, 9 and declines to revisit this ruling. 10 at 13:1320.) (See Docket No. 83
The rationale for that ruling is only
11 strengthened by Defendants' refusal to stipulate that Lt. 12 Col. Doe would not be subject to separation proceedings 13 if he were identified by name. (Opp'n at 9:36.)
14 Defendants cite Judge Schiavelli's March 21, 2006 Order 15 on this issue, but that Order did not foreclose entirely 16 the possibility that Plainiff could proceed without 17 identifying the members on whom it relies for standing. 18 (See Docket No. 24 at 16:117:14.) Accordingly, the
19 Court's ruling that Plaintiff may proceed without 20 identifying Lt. Col. Doe by name is not a "departure" 21 from the March 21, 2006 Order. 22 23 24 2. Terry Nicholson
In addition to Lt. Col. Doe, Mr. Nicholson's
25 membership in Plaintiff association provides a basis for 26 the Court to find Plaintiff has standing here. 27 28
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In 2006, Plaintiff's Georgia chapter made Mr. (Ensley Decl. 4.)
2 Nicholson an honorary member.
3 Though Plaintiff does not specify the date in 2006 on 4 which Mr. Nicholson became an honorary member, the 5 parties agree that he signed up to be included in 6 Plaintiff's database in April 2006, (Stmt. of Undisputed 7 Facts ("SUF") 10; SGI 10), and Plaintiff's records 8 indicate that Mr. Nicholson has been a member since April 9 28, 2006. (See Decl. of Terry Hamilton ("Hamilton Construing these facts in the
10 Decl.") 35, Ex. A.)
11 light most favorable to Plaintiff, the non-moving party, 12 it appears that Mr. Nicholson was an honorary member at 13 the time the First Amended Complaint was filed, the 14 applicable measuring date here. 15 16 Defendants argue that Mr. Nicholson's honorary
17 membership is a nullity because the provision of 18 Plaintiff's bylaws authorizing awards of honorary 19 membership conflict with Plaintiff's articles of 20 incorporation which provide for a single class of dues21 paying members and thus Plaintiff has no ability to 22 award honorary memberships. Plaintiff maintains that Mr.
23 Nicholson's honorary membership is valid, and even if it 24 were not, sufficient indicia of Mr. Nicholson's 25 membership exist to provide for standing here. 26 27 28
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Defendants respond that the line of authority
2 permitting associational standing where sufficient 3 indicia of membership exist is unavailable to Plaintiff, 4 a traditional membership organization, and that in any 5 case, the indicia of Mr. Nicholson's membership are 6 insufficient to confer standing. As the Court finds
7 Defendants have not met their burden of showing that 8 Plaintiff's grant of honorary membership to Mr. Nicholson 9 was invalid, the Court does not reach the question of 10 whether Plaintiff may alternatively obtain standing based 11 on Mr. Nicholson's indicia of membership. 12 13 Defendants' argument that Mr. Nicholson's honorary
14 membership is insufficient to confer standing on 15 Plaintiff fails for two reasons. First, although as a 16 general principle of corporate law5 bylaws that conflict 17 with mandatory provisions of a corporation's articles of 18 incorporation are ultra vires and void, see, e.g., 19 Paolino v. Mace Sec. Int'l, Inc., 985 A.2d 392, 403 (Del. 20 Ch. 2009), Defendants have not shown that the bylaw at 21 issue actually conflicts with Plaintiff's articles of 22 incorporation. In relevant part, Plaintiff's articles of
23 incorporation provide that "[m]embers of the corporation 24 25 Defendants have directed the Court to no authority specifically applying the District of Columbia Nonprofit 26 Corporation Act, and the Court has found none; Defendants 27 rely solely on Nev. Classified Sch. Employees Ass'n v. Quaglia, 177 P.3d 509 (Nev. 2008), which appears to have 28 applied Nevada corporate law.
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5
1 shall be individuals who support the purposes of the 2 corporation and make a financial contribution to the 3 corporation each calendar year," and that "[t]he 4 corporation shall have one membership class." 5 App. of Evid. Ex. 8 at 2.) (Reply
It does not, however, contain
6 any provision prohibiting Plaintiff's Board of Directors 7 from using their authority to create additional classes 8 and criteria of membership. 9 10 Furthermore, the law of the District of Columbia does The
11 not require the harsh result Defendants advocate. 12 District of Columbia Nonprofit Corporation Act (the
13 "Corporation Act") provides that a nonprofit corporation 14 shall designate its membership class or classes and 15 accompanying qualifications "in the articles of 16 incorporation or the bylaws." 17 (emphasis added). D.C. Code 29-301.12
The Corporation Act further provides
18 that articles of incorporation shall contain "any 19 provision which the incorporators elect to set forth . . 20 . designating the class or classes of members, stating 21 the qualifications and rights of the members of each 22 class and conferring, limiting, or denying the right to 23 vote." D.C. Code 29-301.30(a)(5) (emphasis added).
24 Viewed together, these provisions offer flexibility and 25 broad discretion to incorporators as to where they choose 26 to describe membership classes and qualifications. The
27 ability to describe one class of members in the articles 28

25 236
1 of incorporation and another in the bylaws falls within 2 this broad discretion. 3 4 B. 5 Standard of Review As indicated during the hearing on April 26, 2010,
6 the Court is inclined apply the standard of review set 7 forth in Witt v. Dep't of the Air Force, 527 F.3d 806, 8 819 (9th Cir. 2008) i.e., that "when the government 9 attempts to intrude upon the personal and private lives 10 of homosexuals, in a manner that implicates the rights 11 identified in Lawrence, the government must advance an 12 important government interest, the intrusion must 13 significantly further that interest, and the intrusion 14 must be necessary to further that interest" when 15 considering Defendants' challenge to Plaintiff's 16 substantive due process claim. Neither side addressed
17 whether or not the DADT Policy survives the Witt standard 18 in their papers in support of and opposition to the 19 Motion. The Court thus grants both sides leave to submit
20 further briefing addressing application of the Witt 21 standard of review to the DADT Policy. 22 23 24 IV. CONCLUSION For the reasons set forth above, the Court DENIES
25 Defendants' Motion to the extent it is based on a lack of 26 standing. The Court grants the parties leave to file
27 supplemental briefs for the sole purpose of discussing 28

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1 application of the Witt standard to Plaintiff's 2 substantive due process claim. Defendant may file its
3 supplemental memorandum of points and authorities, along 4 with any further supporting evidence, no later than June 5 9, 2010. Plaintiff may file its response no later than Neither side's supplemental memoranda
6 June 23, 2010.
7 shall exceed fifteen pages, exclusive of tables of 8 contents and authorities. 9 10 11 12 Dated: May 27, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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VIRGINIA A. PHILLIPS United States District Judge
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION - - HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING - - LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ___________________________________)
No. CV 04-8425-VAP(Ex) Pre-Trial Conference
REPORTER'S TRANSCRIPT OF PROCEEDINGS 14 Riverside, California 15 Monday, June 28, 2010 16 3:27 P.M. 17 18 19 20 21 22 23 24 25 THERESA A. LANZA, RPR, CSR Federal Official Court Reporter 3470 12th Street, Rm. 134 Riverside, California 92501 (951) 274-0844 WWW.THERESALANZA.COM
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1 APPEARANCES: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BY: Paul G. Freeborne BY: Joshua E. Gardner BY: Ryan Bradley Parker BY: W. Scott Simpson 20 Massachusetts Avenue, NW Room 6108 Washington, DC 20001 202-353-0543 On Behalf of Defendants: WHITE & CASE BY: Dan Woods BY: Earle Miller BY: Aaron Kahn 633 West Fifth Street, Suite 1900 Los Angeles, California 213-620-7772 On Behalf of Plaintiff:
90071-2007
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I N D E X Page Proceedings........................................ 4
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Riverside, California; Monday, June 28, 2010; 3:27 P.M. -oOoTHE CLERK: Calling Calendar Item Number 14,
Case Number CV 04-8425-VAP(ex), Log Cabin Republicans versus United States of America, et al. Counsel, please state your appearances. MR. FREEBORNE: Paul Freeborne on behalf of the With me are my
03:27
United States and Secretary Gates, Your Honor.
colleagues, Josh Gardner, Scott Simpson, Ryan Parker, and Major Patrick Grant. THE COURT: MR. WOODS: Good afternoon. Dan Woods from White & Case for With me are my colleagues,
03:27
plaintiff, Log Cabin Republicans. Earle Miller and Aaron Kahn. THE COURT:
This matter is on the Court's calendar
03:27
for a pretrial conference. And this matter is set to begin trial on July 13th? MR. WOODS: THE COURT: Yes, Your Honor. And we'll start trial that day, in the But as
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absence of the unforeseen happening in the meantime. far as I'm concerned, we'll start trial that day.
As I recall, there were some issues with counsel about -- and perhaps witnesses, but as I recall, it was mostly counsel -- about trial scheduling. So if we're not able to
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complete testimony in the four days of that week -- as I
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recall, one side or the other, or maybe both, had some scheduling problems the following week. continue the following week. Am I recalling correctly? MR. FREEBORNE: scheduling conflict. with my son. You are, Your Honor. It was my
03:29
Otherwise, I could
I was scheduled to take a mission trip
I have arranged for a backup in the event that we
go long, if we go longer than four days; so that's been taken care of. The following week, though, is a family vacation that cannot be arranged around. THE COURT: So you're available for two weeks? Yes. With the note that I have a
03:29
MR. FREEBORNE: backup plan in place. THE COURT:
Because what we could do is pick up -- we
03:29
could go for four days, since it's a nonjury trial, and then pick another week if we're not able to finish in four days. MR. FREEBORNE: Your Honor, we note that we've asked But I
03:29
for a bifurcation on the standing and then the merits.
think it might be more efficient for everyone just to push through, if we are going to go the full length. THE COURT: I think that it wouldn't be a problem And, certainly, one way or the other,
finishing in two weeks.
you should plan to go on that vacation. All right. Let's take up the motions in limine.
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I agree with the defense that the government's motions in limine violate my standing order in a couple of respects, although I've read them and I will consider them on the merits. My standing order limits the motions in limine not only in number, but in subject matter. Also, with perhaps one exception, the motions in limine for this court trial appear to me to be largely unnecessary in a court trial. They're not always unnecessary,
03:31 03:30
but most of what's covered in these motions in limine appear to me to be unnecessary. Although, to a certain extent, even if they weren't called motions in limine, in some part they raise some issues that we probably ought to take care of in advance of trial. The motion that seems the least necessary is the motion with respect to the exhibits. And I think for the sake
03:31
of expedition and in the interest of recycling the paper -- not recycling it for another use, but recycling it for the exhibits, because we'll be using them, of course, at trial to a certain extent -- I'll take up, first, the motion to exclude the use of the exhibits. What's supposed to happen is -- the way I usually proceed, as to the exhibits, would be to go through a joint exhibit list, and as to what ideally would be a very short number of disputed exhibits, talk about those with counsel at
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the pretrial conference. There should not be -- and I don't even really think there would be in this case, although I can't really tell for sure -- a very limited -- I can't even believe there would be any documents -Is there a joint exhibit list that has been prepared here? Did you file one? MR. FREEBORNE: Your Honor, we have, as you know, a
03:32
broad-based challenge to the use of the facts or evidence in this case. That's one of the subjects of our motion in limine. THE COURT: motions in limine. MR. FREEBORNE: It is. But I just mention that in Well, that's common to all three of the
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that our understanding of the joint exhibit list is obviously to agree upon admissibility. We don't believe that facts or
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evidence outside of the legislative history of the statute are at all relevant in this case. We have offered to the other side to introduce the legislative history and agree upon what that consists of, but the other side has been unwilling to do that. They see a joint exhibit list as for identification purposes only. We don't see that the Court benefits from that. The Court
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As we understand it, it's for admissibility.
deserves to know what the parties agree should be admissible on the first day of trial.
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THE COURT:
Well, it should be both.
It's both for
identification and admissibility.
Because, especially with the
number of exhibits here, it would be chaos if I don't have a joint exhibit list. Even if you don't agree on a single exhibit as to relevance, you're still required to come up with a joint exhibit list and a set of notebooks for the witnesses and notebooks for the Court. We should all be operating under the
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same set of exhibits, whether or not you agree as to a single one that they will be admitted. There has to be a joint exhibit list. MR. FREEBORNE: with the other side. THE COURT: So that's why I would return to the To the
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Very well, Your Honor.
We'll work
parties the notebooks that have all of the exhibits.
extent that your motion is based on an overarching objection that there are no exhibits other than the legislative history, that objection is overruled. But as a practical matter, there That doesn't mean that you're
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must be a joint set of exhibits. stipulating to their admission.
I would be extremely disappointed if there are objections as to authenticity. MR. FREEBORNE: Your Honor, we do. And we can walk
through those objections with you. objections.
We have evidentiary
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But we still have broad-based issues that need to
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be resolved in this case. The proper nature of facial challenge. They seek to
introduce extrinsic evidence of subjective motivations on behalf of members of Congress, which we believe is inappropriate. THE COURT: That's properly raised in some of your
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other motions, and I intend to address those to a certain degree. To the extent that some of the exhibits contain those,
the best way, it seems to me, to deal with that issue is -most of those exhibits relate to the testimony of some of the experts. And I'm not sure I'm going to allow some of that expert testimony. I mean, what comes to my mind immediately
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when you say there's an objection to the testimony regarding the subjective intent of certain members of Congress, I agree with the government that for the most -- well, almost entirely, I think such testimony would be objectionable. And although the government didn't frame it this way, at least insofar as the motions in limine were concerned, there is the legislative privilege. I mean, I didn't see that in the
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motion in limine, but that's, to me, the privilege that would apply. So the way I conceive it is, an expert can take the witness stand and say -- I think the expert -- I really don't want to jump around; I really want to keep this focus for the
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moment, on the motion with respect to the exhibits.
But just
to give you an example -- maybe it was Professor Frank or -MR. FREEBORNE: Professor Frank will testify about
the history of homosexual service, as well as the enactment of "Don't Ask, Don't Tell." an animus theory. THE COURT: Maybe he's the one I had in mind. And his entire theory is based upon
03:38
Because I remember reading in some of your exhibits on the experts -- I don't know if it's Exhibit 9 -- yes, it was Professor Frank. thinking of. So, for example, if he's testifying on direct, like any other expert, he can testify, Yes, this is what I was asked to do; this is the work I did; this is my research; here are my qualifications; these are the things I relied on, and so forth. The materials, the research, the third-party sources he consulted, et cetera, all of that is hearsay. come in on direct because it's hearsay. So it doesn't
03:39
Right, it was his report.
That is what I'm
03:38
He's entitled to say
what he relied on and to describe all of the research he did. But it's hearsay. It doesn't come in on direct. If you want to admit
03:39
You can cross-examine about it.
it on direct -- you probably wouldn't -- but you can cross-examine on it to your heart's -- well, not necessarily to your heart's content, but you can cross-examine on it. doesn't come in. You can cross-examine on it, but it's It
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hearsay. It normally isn't even listed. It wouldn't be listed It can
on the exhibit list, because it's not going to come in.
be marked for identification on the exhibit list, but it's not going to be admitted. So it might appear on the exhibit list
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because it may be marked for identification, because you may want to cross-examine on it. Either side may want to
cross-examine on something an expert relied upon if they think it's good grounds for cross-examination. So the fact that something is identified on the exhibit list doesn't even mean it's going to be moved into evidence, much less that it's going to be admitted. But a joint exhibit list is crucial in any case, especially a case with a lot of exhibits, so that we don't have chaos at trial trying to keep straight what documents have been identified and what documents have been admitted. I didn't mean to jump ahead on the expert motion. But on the exhibit motion, to the extent that it's based on a broad objection to the use of any exhibits other than the legislative history, that motion is denied. Since I don't have a joint exhibit list and since it is a nonjury trial, I'm not going to try to rule in advance which ones would be admitted and which ones would not be, because I think some of that rule will become clear as I go through the other two motions.
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But, certainly, much of what the experts rely on is not admitted; it just forms the basis for their opinion. So
that motion is denied without prejudice to making individual objections to individual pieces of evidence. Now let's move to the other two motions. The motion in limine to exclude lay witnesses. The defendants are seeking to exclude the testimony of 12 lay witnesses. I think I have the breakdown correct. If
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I misstate it, I'm sure one or both sides will correct me. Eight of them are not listed either in initial disclosures or interrogatory responses, nor otherwise in discovery, according to the defense. The second basis for the motion is that this is a facial challenge; that is, this case represents a facial challenge; so all evidence on the merits beyond the statute itself and the legislative record should be excluded. And the
03:43 03:43
defense argues that this applies especially to the testimony from the six former servicemembers who are to testify regarding the circumstances of their discharge under the policy, "Don't Ask, Don't Tell." The argument is that testimony regarding the application of the statute to any person is irrelevant, and, finally, that the testimony of all six of them would be cumulative. As to the three 30(b)(6) witnesses, the government
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argues that some of their testimony is the personal testimony of the witness rather than their testimony as an organizational representative and that their personal views are irrelevant; that is, their personal opinion about whether knowing that a -I think some of them were asked in their depositions -- and this is the testimony that the defense argues should be precluded -- whether knowing that a fellow servicemember was gay would affect the witness's working relationship with such person or would cause him personal concerns about privacy. In reading the transcript excerpts that were provided in connection with these two motions, the expert witness motion and the lay witness motion, it appears to me that what happened at times during the depositions is that questions were asked or testimony was volunteered or given in answer to a question that, either in the case of a 30(b)(6) witness, went beyond the designation, or, in the case of an expert witness, a question was asked of someone designated as an expert witness that went beyond the expert designation. Sometimes I think what was cited was really out of context. Sometimes it was clear to me that what was cited was
03:46 03:45 03:44 03:44
really out of context and that witness probably wouldn't even be asked to testify to that at trial. To the extent that it would be elicited, the personal opinion of 30(b)(6) witnesses on a subject about whether knowing a fellow servicemember was gay and how it would affect
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their working relationship, that's irrelevant.
I agree.
I thought, though, from the context in which some of those quotes were cited, that -- well, I'll just leave it with I think that would be irrelevant. So the testimony, to the extent that the motion seeks to bar testimony that would seek a personal opinion from a witness who is designated to speak on behalf of an organization, that would be irrelevant. But, again, it's not
03:46
really necessary to bring a motion in limine in a court trial on that, because it would probably be more efficient for me just to rule. Information regarding research and other postenactment developments -- again, this is just 30(b)(6) witnesses -- circumstances allowing -- I think the shorthand term was moral waivers -- and experiences of foreign militaries allowing -- I think what was called open service by gays and lesbian members. The government seeks a ruling that all of
03:47 03:47
that is irrelevant and not admissible during the trial. So taking up these issues in, more or less, that order, the first one: Was the failure to identify the eight
03:47
lay witnesses substantially justified or harmless under Rule 37(c)(1)? The defendants claim that they were denied the ability to depose these witnesses before trial because their names were not disclosed until May 17th and the addresses and
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phone numbers weren't provided until June 7th.
One of the
disputes between the parties is whether the general statement in the early disclosures that persons of that general class that is former servicemembers might be called to testify, the government's position is that that doesn't suffice, and, of course, there is a continuing duty to supplement the early disclosures. The plaintiff argues that it did not know it would call these witnesses until the Court put the parties on notice that it was inclined to adopt the Witt standard of review; and then, at that point, it immediately notified the government of its intent to call these witnesses and made them available for deposition. The opposition contains a proffer of each witness's testimony and points out that Rule 26 requires disclosure of the witnesses with knowledge of a party's claims that are known at the time of disclosure. So, in part, the issue comes down to, were the claims known at the time of disclosure or the Court's decision to apply the Witt standard? Does that change the claims?
03:49 03:49 03:49 03:48
The Witt standard, of course, being that the government must advance an important government set of restrictions. "The policy must advance an important government
interest; the intrusion must significantly further that interest; and the intrusion must be necessary to further that
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interest." Is that enough to justify, in this case, the disclosure of the witnesses' identities? So the issue comes down to whether the plaintiff had reason to believe that these witnesses' testimony was necessary or relevant before the April 26th hearing, because that's when I first said that I was inclined to apply the Witt standard. The five factors that the Court is to consider in making this decision about allowing the witnesses to testify are: Was the disclosure substantially justified or harmless, the late disclosure? The defendant knew that the plaintiff was considering adducing this testimony, just in very general terms, since the early disclosures and the interrogatory responses, very general terms; and they only had the identities for about a month before trial, June 7th, and trial begins -- well, they had the identities slightly early, but only the contact information, names and phone numbers, about five weeks before trial. Is the surprise or prejudice curable? There are still two weeks left to depose them. have been available for deposition since May 20th. One fact that the plaintiff pointed out is that the defense had seven lawyers present at the 30(b)(6) depositions. The argument that the plaintiff is making as to this
03:52 03:51 03:51 03:50
They
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point is that, I guess, given the detailed proffer of what their testimony is going to be and the relatively short depositions that would be needed, the depositions could be taken. There could also be some arrangements -- I mean, I
03:52
could order, in terms of the schedule of the order of proof, that they could testify later in the trial, rather than at the beginning, to give the government more time to schedule their depositions. So I'm inclined to deny the motion as to those witnesses and allow their depositions to be taken. It doesn't seem to me that the depositions would be more than a couple of hours, two or three hours, so I think it's workable. There are three witnesses, Craig Engle, Jamie Ensley, and Martin Meekins, who submitted declarations in connection with the summary judgment motion issue on standing. It appears that there may no longer be an issue with respect to Mr. Meekins. Has that been worked out? MR. FREEBORNE: Your Honor, the Court has not ruled
03:52
03:53
03:53
upon our request to depose Mr. Meekins. MR. WOODS: The issue was worked out, Your Honor, Because we've agreed that the
with respect to Mr. Engle.
document that he had authenticated in the declaration would be admissible without objection, we would not need to call him as
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a witness. THE COURT: Oh. In the motion papers, as to this
motion, I think the parties referred to this being worked out as to Mr. Meekins. MR. SIMPSON: No, Your Honor. I believe our motion
03:53
said, particularly the reply -- I could refer to the Court to the footnote where this was covered -- it was worked out as to Mr. Engle, not Mr. Meekins. THE COURT: MR. WOODS: Not Mr. Meekins. The government and we agree on this,
03:54
Your Honor, of all things. THE COURT: I'm sorry. So there's no issue as to Mr. Engle. MR. WOODS: Right.
03:54
All right.
Then I have that name wrong.
And, Your Honor, our view was that you had already ruled about Mr. Meekins at our last hearing. of your order about standing. And that's part
Because that was one of the
issues the government raised at the last hearing, and you ruled at the time that the late disclosure, assuming it was late, of Mr. Meekins was not something that would preclude him from testifying. MR. FREEBORNE: Your Honor ruled on our motion to
03:54
strike; never ruled on the request to depose Mr. Meekins. THE COURT: I thought I said that -- I'm sorry. I'll
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look back at the order again. I thought during the hearing that I resolved it by saying I would not allow that deposition to be taken. MR. FREEBORNE: A broader issue is whether you have I
03:55
ruled on standing and whether there are triable issues.
think both of us believe that you have ruled that there are triable issues. THE COURT: standing. MR. FREEBORNE: Right. But it's susceptible to a
03:55
On standing.
I issued an order on
variety of interpretations.
It's unclear whether you have
definitively ruled on standing or if you have found triable issues. THE COURT: Well, I guess the answer to that is, I If you wish to continue to challenge
03:55
think there is standing.
it by challenging the witnesses on standing, I would allow you to do so, to cross-examine. issue. I can't say -- I mean, the motion that was brought was your motion, and you raised standing -- actually, I don't even think you raised standing; I think the Court raised it sua sponte. I can't remember now. That's not correct, Your Honor. I'm sorry. You did raise it, but
03:56 03:56
But I think that's a very weak
MR. FREEBORNE: THE COURT: No.
you didn't raise it on the grounds that I raised it.
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MR. FREEBORNE:
That's also incorrect.
Our statement of uncontroverted facts said that -and that came in today -- they have not said when John Doe paid his dues to become a member of Log Cabin Republicans. And even if you look at the proposed findings of fact, they still refuse to say that. And they refuse to come
03:56
forward with logs, which would seem to be a very simple exercise to substantiate Lieutenant Colonel Doe's standing in this case. THE COURT: And you said I was incorrect.
03:57
I think that the accurate history is that, on that motion for summary judgment, what the defense did not raise and the Court raised sua sponte by sending out a tentative ruling shortly before the hearing was first scheduled was the issue of when both Lieutenant Colonel Doe and Mr. Nicholson became members. That was not an issue that either party had focused The Court raised it. Your Honor, with all due respect, But I don't know if we have to use We said that they haven't
03:58 03:57
on, on the standing issue. MR. FREEBORNE: that's just not the case. up time now.
We cited Biodiversity.
established that the time of membership -THE COURT: You don't recall getting the tentative
ruling that raised this? MR. FREEBORNE: It certainly raised it, but what we
03:58
would say is that we raised it in our papers squarely.
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THE COURT:
But not on the timing issue. We did on the timing issue. We cited
MR. FREEBORNE:
Biodiversity, and we made the very argument as it relates to John Doe and Mr. Nicholson. One point of confusion, as I pointed out in the summary judgment hearing, was that Judge Schiavelli, when he had this case, required them to identify a member by name; they could only proceed by a named member. some confusion. But, Your Honor, we did raise the issue as it related to Mr. Doe as well. THE COURT: All right.
03:59 03:58
So that did interject
But the problem that I saw was that there wasn't a date specified within the year that the action was filed in connection with the evidence that was adduced by the plaintiff in opposition to the motion. MR. FREEBORNE: know if we -THE COURT: being correct on this. All right. So I would deny the motion insofar as the lay witnesses are concerned. I'm not persuaded by the arguments raised by the defense, and certainly not by the argument that their testimony
04:00 03:59
And we raised that issue.
I don't
No.
Obviously, you're very intent on

03:59
It's more important to move on.
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would be cumulative. The last of the lay witnesses, the proffer as to that, at least in the order in which the proffers were described in the motion, that's the only one whose testimony might be cumulative. Otherwise, I don't find the argument that their testimony would be cumulative to be persuasive. And balancing those five factors that I identified under the case law, I don't find that under Rule 37(c)(1) that their testimony should be excluded. MR. SIMPSON: Your Honor, could I just stick my neck
04:01 04:00
out just for a moment here? THE COURT: I'm going to let both sides argue. Okay.
04:01
MR. SIMPSON: THE COURT:
I just want to make sure I covered all of
the issues on the lay witnesses and finish by saying, as I've already stated on the record, just for purposes of keeping everyone focused on the issue as to the Witt standard. As to
the overarching objection about the irrelevance of all of this evidence, it seems to me that the plaintiff's evidence as to the lay witnesses would be relevant if it goes to, for example -- and this is not the only thing that the plaintiff is proffering it for -- but if it goes to the question of what evidence the legislative branch may have ignored during the legislative process, such as the Crittenden report, for
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example. So as to the six witnesses who would testify -- well, I think it's only five of those six -- as to the lay witnesses who would testify regarding the circumstances of their discharge, to show that the policy doesn't further its stated purposes, isn't there some relevance to this testimony as to that issue? In other words, it seems that the government is trying to have it both ways. The plaintiff has to prove, as
04:03 04:02
the government states, that the policy does not further or advance any legitimate or important governmental objective. That's what the government keeps focusing on, that it's a facial challenge. So the plaintiff has to prove that it
doesn't further or advance any legitimate or important governmental objective. Yet, by this motion, all three of
04:03
these motions, the defendants are attempting, really, to prevent the plaintiff from putting in any evidence that goes to this element of its case. So with that, do you wish to be heard? MR. SIMPSON: Yes. Thank you, Your Honor.
04:03
Those non-30(b)(6) witnesses is what, from my understanding, we're addressing now. And I assume I should
address the failure to disclose as well, before going into the cumulativeness of the witnesses. THE COURT: Whichever order you prefer.
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MR. SIMPSON:
Thank you, Your Honor. The
I won't repeat what was said in the papers. Court is obviously very familiar with that.
But if I could
just submit, Your Honor, that apparently what the Court is envisioning is that we would conduct these depositions, if we choose to do so, between now and the start of trial; or the Court also said we could defer the testimony of those five or six individuals until the latter days of the trial. Apparently, the Court is thinking we could conduct some of them during the trial. We would submit, Your Honor, that all of that would be highly prejudicial to us in presenting our case and preparing for trial. Although, as plaintiff says, in -- I believe it was two of the 30(b)(6) depositions, there were seven attorneys present on the side of the defendants, three of those were Department of Defense attorneys, obviously who are there because they are in-house counsel and would not be involved in conducting depositions. I think the core of the problem here is that plaintiff did not disclose these individuals until after the close of discovery. And what they say, as the Court has said,
04:05 04:05 04:04 04:04
is that they took care of their duty by simply saying in their initial disclosures that they may rely on the testimony of former servicemembers. But, obviously, that's not
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identification by name. What they say in their opposition to our motion in that regard is that, well, if we thought that wasn't sufficient, we should have told them so at that time. But then they say in the next breath that it wasn't until after the hearing in this case on April 27th that they decided to rely on individuals in that regard. So it seems to me that raising it in relation to the initial disclosures would have been fruitless if plaintiff itself had not decided to rely on those individuals until after April 26th; and they had not decided until later who those people were. And it's not true, Your Honor, that they told us immediately that they were going to do that. In fact, if I'm not mistaken, they did not tell us until May 17th, when they identified those individuals to us, that they had actually decided that, Yes, we are going to rely on the testimony of former servicemembers. tell us that immediately. THE COURT: May 17th; correct? MR. SIMPSON: names, Your Honor. This next point is -THE COURT: And then you got the contact information,
04:07 04:06 04:06 04:05
So they did not
I'm sorry.
I think they told you on
04:06
Correct.
On May 17th, they gave us the
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the phone numbers and the addresses, in early June. MR. SIMPSON: Correct, Your Honor.
This next point, I guess, is not determinative, but I think it makes the plaintiff's conduct here even more egregious. It was only after defendants pressed the plaintiff to have a pretrial meet and confer that LCR finally provided the names of those five witnesses. We took the initiative to
contact them on May 17th, saying, Look, we have to have a pretrial meet and confer. They initially resisted having that It was only after we pressed
04:07
meet and confer at that time.
them some more that finally they said, Okay, here's our list of witnesses. And, finally, at that point they gave us the names. And, presumably, if we had not pressed them at that time, they would have given us the names even later. And, obviously, as the Court has said, we are prejudiced because of the inability to depose those people before discovery cutoff. And not having done that, we are hamstrung in the ability to cross-examine those witnesses at trial. And we
04:08 04:07
would submit, Your Honor, that trying to depose those people at this point, particularly going into the first week of trial, would be highly prejudicial to our ability to try the case. In addition to what the Court has said from our papers, that's our argument on that issue, Your Honor.
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THE COURT:
All right. I could address now, as well, the issue When we talk about the cumulativeness
MR. SIMPSON: of the cumulativeness.
of presenting testimony of six former servicemembers, I would suggest, Your Honor, that the Court not focus on simply the cumulativeness. There are basically two areas here.
04:08
In relation to the former servicemembers, the presented testimony by the former servicemembers ties very much into the whole issue of presenting evidence in a facial challenge; and I think it goes beyond the overall issue on which the Court has already ruled, denying that aspect of the motion. The plaintiff has said repeatedly that this is a facial challenge. And we cited abundant case law to the Court
04:09 04:09
in our motion, in our papers, that on a facial challenge, the facts are irrelevant. For example, one court has said a facial challenge is made in a factual vacuum. What they are saying in a facial
challenge is, the party is challenging the statute on its face, implying that, aside from the facts, this statute is unconstitutional. However, the fact that they are now seeking to present testimony, the stories of these six individuals regarding the application of the statute to them, would seem to belie their assertion at the same time that this is a facial
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challenge. Either it is a facial challenge and it's in a factual vacuum, or if it's not a facial challenge, then, yes, you bring in evidence as to the application. But if it's a facial challenge to a statute, then the individual stories about its application are irrelevant, and letting that evidence in would be erroneous. Now we go to the cumulativeness part. Our assertion on that is that receiving six individual stories about the application of the statute would simply compound that error six times. And, finally, Your Honor, one other point on that: The fact that LCR here is relying on associational standing also belies their asserted need for this testimony about the application of the statute. One of the criteria for associational standing, according to the Supreme Court in the Hunt case, is, quote, "Neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit." If such testimony is not required, then it would seem that permitting it would be a waste of time. It would make
04:11 04:10 04:10 04:10
this trial not an efficient trial; it would bring in testimony, evidence, that is not required, that is not needed; and it would sully the record that presumably would go up on appeal with material that would be irrelevant and, again, cumulative.
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Your Honor, we would submit. THE COURT: Mr. Woods. MR. WOODS: Thank you, Your Honor.
04:11
All right.
I think, frankly, to begin with, the Court is being very generous with the government in allowing them to argue the merits of these motions in limine in light of the government's most recent violation of your rules about, this time, the number of motions in limine. We did present to you evidence that the government, in the meet and confer with us, had indicated that the government intended to pursue at least four motions in limine and told us exactly what they were. At least four motions All
04:12
in limine were then crammed into three motions in limine. of the three motions in limine have numerous categories and subparts that add up to far more than three.
04:12
So I think the
government is fortunate that you're even considering these. And that's especially true in light of the government's repeated violations of this Court's rules in the past. We did, as you saw, in our opposition to each of these three motions in limine, detail every prior violation of the local rules and this Court's rules by the government. And you will see, Your Honor, in the three reply briefs filed by the government, there's no response at all to our argument that they had initially thought about at least
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four motions in limine. all.
There's no response to that point at
And there's no response at all to our point that this was
just the latest of a series or a pattern of local rule violations by the government. But, turning to the merits, counsel really started by saying he wasn't going to repeat the arguments in the papers. But that's basically what he did. I don't think, Your Honor, that it is highly prejudicial to suggest that the United States of America take five depositions of lay witnesses that could be done in half a day each. The government may not have seven lawyers today at The government has The government has
04:13 04:13
the counsel table; they only have four.
eight lawyers on the caption of this case.
had the opportunity to conduct these depositions since May 20th, when we offered them that opportunity. The government gambled somehow that you would disagree with our position about this and elected not to take those depositions in the time that has passed since May 20th. And I think, again, the Court is being very reasonable and generous in allowing them to take the depositions now. And I think it's very hard for the government to complain that they are being treated unfairly when you are giving them yet another opportunity to conduct these depositions that they could have already finished if they had
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just applied themselves diligently since May 20th. The other arguments, Your Honor, that were made by counsel fail because of the Court's inclination to apply the Witt standard. If the Court is applying the Witt standard in this case, that standard specifies as follows: When the government
04:14
attempts to intrude upon the personal and private lives of homosexuals in a manner that implicates the rights identified in Lawrence, the government must advance an important government interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. That's what the government is going to have to prove at this trial if the Court adopts the Witt standard. The testimony of these former servicemembers, Your Honor, is not introduced for any purpose other than to show that their discharges are representative examples of how the government is not meeting the Witt standard today or over the past several years. These five or six people, out of over 13,000 people who have been discharged pursuant to this unconstitutional law, are going to tell very different stories about what happened to them. And you saw that in the declarations that we filed. We filed them, in part, to show you that they were not
04:15 04:15 04:15 04:14
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cumulative, that some were men, some were women, some were of one branch, some were another branch, some were one rank, some were a different rank, and so on; and some were specifically told by their supervisors that their discharge had nothing to do with unit cohesion or troop morale, the stated purposes of the policy. So that's what this is about. It has nothing to do
04:16
with undermining or belying our facial challenge to the Constitution. We're not bringing cases on behalf of these five And they are all different and hardly
04:16
or six individuals. cumulative. THE COURT:
I'm not persuaded that it's cumulative. I think the number that you gave
That's not a concern to me.
in your papers, if I recall correctly, was 13,400 persons discharged; so five or six in what's going to be a relatively short case -- I don't think the testimony is going to take -I'm just not concerned about whether the testimony is cumulative. But in order for the testimony to be relevant in a facial challenge, it can't be testimony that is directed solely -- or it shouldn't be directed at all, but it can't be directed solely to showing how the policy, as applied to them, is unconstitutional. So it has to be relevant to showing how -- as I understand the argument that you made in the papers and the
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argument that you made just now, their testimony must, as I understand it, be directed to showing how the intrusion -- that is, in this case, the policy -- it goes to the issue of whether the policy significantly furthers the important government interests and whether the intrusion is necessary to further that interest. So it's a bit of a fine line. But the
04:17
testimony has to be considered in light of that. It's almost as though, if it was being tried to a jury, I would be instructing the jury they consider it only for those purposes, not to consider it in terms of the effect or the application of the policy on the individuals. MR. WOODS: Yes, Your Honor. Lots of the facial
04:18
challenge cases that we have cited to you do involve the presentation of evidence along the way about how that statute has worked in practice. THE COURT: One of the things that seems -04:18
But not to show that as applied, it's
unconstitutional; only to show that the plaintiff meets its burden of showing -- well, succeeding on a facial challenge. MR. WOODS: Right. And I know the government keeps
04:19
trying to bring up the fact that it's a facial challenge, which we have not disputed all along; but there is, of course, nothing at all improper about facial challenges. What we've seen in the facial challenges the more we study them, Your Honor, is that the ones that the government cites are the cases where the facial challenge is made
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immediately upon the enactment of the statute.
Immediately.
And the cases we're citing are cases where there's a longer-developed record. THE COURT: MR. WOODS: Slow down, please. Sorry.
04:19
What I was trying to say, Your Honor, was that some of the cases about facial challenges are cases where the facial challenge is made immediately. And those are the cases where
the facial challenge seldom works, because there's not enough record to show whether it's going to work or not. So the cases we're citing to you are cases where facial challenges have been upheld after trials with evidence. And those cases happened longer than the other cases; they happened at some point years after the enactment of the statute. And that's what this case is. THE COURT: All right.
04:20 04:19
Well, let's move to the motion with respect to the expert witnesses, where the government is seeking to bar the plaintiff's seven experts. The government characterizes the
04:20
testimony of these witnesses as testimony that the policy continues to have no rational basis today and argues that the testimony is inadmissible under Rules 402 and 702 -- that is, it's neither reliable nor relevant -- and then also argues, in the alternative, that if admissible, it should be limited under Rule 403 to one witness per topic, because otherwise it's
04:21
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cumulative. So the seven witnesses are Lawrence Korb -- I'll go through them quickly. each. I just have a couple of comments about
I have different concerns about each of them than are

04:21
necessarily raised in the papers. As to the motion insofar as it concerns Professor Korb, I don't think it's accurate, at least as I can glean from the expert's deposition testimony that was attached to the motion -- I don't think it's accurate to state that his primary opinion is that the policy is unconstitutional. really a mischaracterization of the transcript of the deposition. I think during the deposition he was asked that, and he gave his opinion, but I don't think that's the primary reason he's being called to testify. Also, though, keeping in mind, however, that under the federal rules, I don't think that opinion would be admissible. But an expert is allowed to state the ultimate But I don't think that's why he's being That's
04:22
04:22
opinion in the case. called to testify.
04:22
As to -- is it Nathan Frank? MR. WOODS: THE COURT: Nathaniel, Your Honor. Nathaniel. I typed it as "National."
And I knew that couldn't be right. Some parts of his opinions, I think, such as the -04:22
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what I would characterize as the anecdotal bits, would probably not be admissible. As I said earlier, and I don't want to be repetitive, an expert can testify as to the basis for his opinion if he's got -- and I believe he does have other -- I mean, I believe he's the expert who is trained as an historian -- he can testify about his analysis of the record. But the thing that I found most troubling about the basis for his opinion is what I believe -- it's been a long time since I looked at this issue, but what I believe is still called the legislator's privilege; that is -- and I'm trying to stay away from the word "sausage" here. But since a legislator
04:23 04:23
cannot be questioned about the reasons and the motivation for his or her vote on legislation, and there's a privilege to that effect, as I read some -- and I think some of the basis for Professor Frank's opinion is, I think, based on sort of privileged matter to that same effect. Perhaps not all of it.
04:24
But to the extent that he is opining that -- I know, for example, some of the material that's included in his report includes testimony that was given to Congress about either members of the military or former members of the military and others. That's testimony. That's, perhaps, one thing. But
04:25
his opinion is also based, I believe, on statements that were made during the hearings by members of Congress, such as Representative Dorman, that would go into his frame of mind;
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that is, Representative Dorman's.
That name stood out to me
just because he's -- well, he's no longer in Congress, but he's from this area, so it's a name I recognized. But I think there
were other members of Congress whose comments were reported too. So I think it's one thing to analyze and report and form an opinion based on the hearings and the testimony that was given without splitting hairs, but it's another thing to form an opinion that's based on the reasoning of the legislators, because that is privileged. So, to the extent
04:26 04:25
that his opinion is based on that, I don't think he could state those -- I don't know that necessarily invalidates all of his opinions, but I don't think he can testify about the reasoning of -- well, I'm hesitant to say that he can testify as to the reasoning of, insofar as the record reveals it. Aaron Belkin, most of the objections as to his testimony go to the weight, for example, regarding the conclusion that getting rid of the policy wouldn't harm military readiness. Most of those objections that were
04:27 04:27
expressed in the motion go to the weight, not the admissibility. I think his conclusion is based on a number of
subconclusions, including that the military suspended discharge proceedings of a large number of gay servicemen and women during the first Gulf War; and that supports his conclusion that getting rid of the policy wouldn't harm military
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readiness. So the objections to his opinion, again, would go to the weight and not admissibility. As to Robert MacCoun, if I'm pronouncing his name correctly, he's the law professor at Berkeley. two fields. I think he has I think
04:28
Is he also in the Public Policy School?
he's got two -MR. WOODS: THE COURT: He's a sociologist, Your Honor. Sociologist.
04:28
So his opinions are really more -- they're not really legal opinions, but he has various opinions that he offers regarding unit cohesion, task cohesion, and social cohesion. And, again, I think the criticisms of his opinions go to weight and not admissibility; that is, I don't think that they would rise to the level of a true Daubert challenge. I was just corrected in my last trial by somebody who actually knew Daubert. And it's Daubert. I'm now relieved to
04:29
know the real pronunciation. As to Professor Hillman at Hastings, I don't really understand what her methodology is. I think that is a Daubert
04:29
attack, and so I would ask the plaintiff's counsel to argue as to what methodology underlies her opinions. And then as to Professor Embser-Herbert, her qualifications are impressive, but the impact of the policy on women serving in the military -- I think the government makes a
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good point, that this is not an Equal Protection -- I mean, there's not an Equal Protection claim here, and so I'm hard-pressed to see how that testimony fits within the parameters of the issues raised in this case. Overall, I would say that given what is required under Rule 702, that is, if the specialized knowledge would assist the trier of fact to understand the evidence, I think all of the witnesses are qualified. I think the first requirement is satisfied. I'm a
04:30 04:30
little concerned, as I said, about Professor Frank's -- whether it's based on sufficient facts or data. But for the most part,
I don't think that's an issue with any of these witnesses, other than Professor Frank. As to Professor Hillman, I'm concerned as to the second requirement under 702, if the testimony is the product of reliable principles and methods. So with that, I would ask the plaintiff to address those concerns. Some of the other opinions that the government has objected to, some of the testimony may be admissible for one purpose here but not another. If a witness holds the opinion
04:31 04:31
that the United States should follow the example of another country, such as Canada, that's not admissible, except for a very limited -- it's not admissible. be admissible. Such an opinion would not
04:32
Because, as the Government points out very
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aptly, the issue here is not the wisdom of the policy. If the witness is relying on data of military readiness or the effect on unit cohesion or the other stated purposes of the policy, and they are relying on data from other forces, and the testimony is given in that framework, then it may be admissible. And then one last issue that was raised as to Hillman's testimony. Hillman is the Hastings professor.
04:32
Is she also testifying about a disparate impact on female service members? MR. FREEBORNE: THE COURT: All right. MR. GARDNER: Your Honor, if I may, can I address She is, Your Honor.
04:33
Then I think I've covered that.
some of the points you have raised, or would you prefer me to -THE COURT: You're Mr. Parker? Gardner. Gardner.
04:33
MR. GARDNER: THE COURT: All right.
I'm sorry. Go ahead.
MR. GARDNER:
Thank you, Your Honor.
I don't want to repeat what Mr. Simpson said, so I won't, but I do want to be clear that regardless of whatever standard of review you ultimately choose -- and to be clear, I think it's made clear in our papers -- the Witt standard simply
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is inapplicable in a facial challenge.
Witt itself says so.
But to the extent that this Court disagrees with that, the fact of the matter is, this is a facial challenge. And plaintiff has not cited a case where expert testimony is utilized to support a facial constitutional challenge to a statute. They simply have not. Remember, Your Honor, in Cleburne, there was a facial and as-applied challenge. The Supreme Court didn't consider
04:34
factual testimony in terms of invalidating the city ordinance in the facial challenge. In fact, Cleburne went one step
04:34
further and said, We are not going to resolve the facial constitutional challenge because those are disfavored, so we're going to look at the as-applied challenge. Lawrence, Your Honor, is also completely inapposite. In Lawrence, the Court looks to facts -- by the way, gleaned from amicus briefs, not discerned at a trial -- to determine whether or not the logical historical underpinnings of the Bowser decision should be overruled; in other words, should stare decisis be departed from, not whether or not the Texas ordinance that was criminalizing consensual private sex should or should not be held unconstitutional as a facial challenge. The fact of the matter is, facial challenges are not subject to fact-finding, period. to the contrary. We, on the other hand, have given multiple examples
04:35 04:34 04:34
And the plaintiff cannot give an example
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of where that is the case.
But even if we were to get away
from that basic principle, that you cannot consider evidence for a facial constitutional challenge, there are a host of other legal impediments to the consideration of this testimony. I know this Court alluded to the notion that testimony challenging the wisdom of Congress is inadmissible. We agree with that. But that is the purpose for which these
04:35
experts seek to offer testimony. And here's the proof of that, Your Honor: plaintiff's experts want to provide this Court is the following: There's no empirical evidence to support "Don't Foreign militaries do it, therefore the unit What
04:35
Ask, Don't Tell."
cohesion rationale that Congress considered has somehow been undermined. Unit cohesion, that argument is without merit.
04:36
But the fact of the matter is, Your Honor, in a facial constitutional challenge, the Court looks at the legislative history. in this case? And what does the legislative history say It's
And the plaintiff doesn't dispute this.
indisputable, frankly. Congress heard testimony about foreign militaries and weighed that testimony and ultimately reached a conclusion. Plaintiff wants to bring in expert testimony to challenge that conclusion to say, We understand Congress considered foreign militaries and ultimately decided, while that may be a relevant data point, it's not dispositive. Plaintiff's experts are
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going to come in and say, No, they are dispositive, and they show the lack of logic in Congress's determinations. Unit cohesion. Same example.
In fact, Dr. MacCoun, I think, is a particularly good example of this. There's no dispute now, as plaintiff
04:36
acknowledged in its reply brief to the motion in limine, that Dr. MacCoun, who offered Chapter 10 of the RAND report, was submitted to Congress. Chapter 10 dealt with, just like his
expert opinion, unit cohesion. Congress considered that RAND report, as well as all sorts of other testimony, and reached a judgment. Plaintiff
04:37
now wants to bring in expert testimony to challenge that judgment about unit cohesion. And the same thing is true with empirical evidence, Your Honor. Plaintiff wants to come in and say there was no
04:37
empirical evidence that Congress considered. One, factually, that's not true; two, we don't need an expert to say what Congress did or did not consider. legislative history says what Congress considered. The
And even
04:37
under a heightened scrutiny test, such as Goldman by the Supreme Court, scientific studies are not necessary, particularly in the context of the military, where the judiciary routinely defers to the wisdom and judgment of Congress. THE COURT: Well, you know, you cite Goldman in your
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papers several times, but Goldman -- and I'm trying to remember the exact wording the way you used it -- but Goldman was really quite narrowly focused on the lack of -- I'm trying to remember the exact wording of this holding, because I think you expanded it beyond that -- on the lack of factual record that was needed to analyze the dress code in the military. That's the Yamika case; right? MR. GARDNER: Your Honor. And there was a regulation by the Department of the Air Force. And what did the Supreme Court do in that case? looked at the plain language of that regulation. Justice Rehnquist, former-Chief Justice Rehnquist, said, You know what, I don't need expert testimony to say whether or not this is a good policy, a bad policy or whether this policy makes sense. We're going to look at the plain
04:38 04:38 04:38
That's the Yamika case.
That's right,
They
language of the regulation and make that determination. That's the exact analysis this Court should apply here. And I know that the plaintiff, in its supplemental brief, took the position that, Look, if you apply the Witt standard and you conclude that the government has the burden of proof, the government has not met that burden of proof, and they're entitled to summary judgment.
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I think the plaintiff and the defendants agree on one point, Your Honor. This is a legal conclusion. And to the
extent you conclude, and we would argue erroneously, that Witt somehow applies and that somehow that shifts the burden to the government, the government is not presenting evidence in this case, Your Honor. And we can be very clear about that.
04:39
The government is relying upon the statute and legislative history. So if you conclude that somehow the
government bears some burden in a facial constitutional challenge, I don't know why there would be a need to have a trial in this case. I think plaintiff has made that point in
04:39
its supplemental brief. With respect to the animus issue, I know the Court touched on the legislator privilege. that, Your Honor. I think it's broader than
04:39
The Court does not look at the motivations
of anyone associated with the legislation in a facial constitutional challenge. Instead, what it does is, it looks at the purposes that animate the statute. And the purposes that animate that And
04:40
statute are revealed by the plain language of the statute. this issue is largely off the table for much more basic reasons. Because Philips has already resolved this.
Because
Witt itself, in an as-applied context, said there are legitimate reasons for "Don't Ask, Don't Tell." And those
04:40
involve things such as sexual tension, privacy, and unit
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cohesion.
And regardless of the Lawrence decision, those
findings remain good law to this day. In fact, the First Circuit's decision in Cook makes that clear. Cook, a post-Lawrence case, considered Lawrence
04:40
and considered the unique context of the military and determined that "Don't Ask, Don't Tell" was facially constitutional. And it did that, it conducted that analysis,
Your Honor, by looking at the statute and legislative history. Even the case the plaintiff cites to, where their two experts testified, MacCoun and Korb, the Abel case, actually refutes this notion that expert testimony is relevant or important. In Abel, the Eastern District of New York didn't Rather, it did
04:41
even address the testimony of expert witnesses.
exactly what we are suggesting you should do in this case: Look at the legislative history, look at the text of the statute, and make a conclusion based upon that. Ultimately, the Eastern District did, and that decision was reversed by the Second Circuit, which has concluded that "Don't Ask, Don't Tell" is constitutional. In fact, Your Honor, the fact that different circuits have held, even in an as-applied basis, that "Don't Ask, Don't Tell" is constitutional should doom a facial constitutional challenge. Because, under Salerno, it reveals the fact that
04:41 04:41
there are constitutional applications. So I think that addresses many of the general
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relevance objections the government had under 702 and whether or not this is probative of anything. I do want to quickly address Dr. Korb's opinion. Dr. Korb's opinion in this case -- I asked him at his deposition, What is your opinion in this case? He answered that "Don't Ask, Don't Tell" is unconstitutional. And how do you get there, Dr. Korb? I get there because I don't see a rational basis for it. And if you look at Dr. Korb's report, that's all it purports to be. In fact, the whole back half of Dr. Korb's
04:42
report is nothing but a regurgitation of some of the other expert witnesses in this case's conclusions. For example, I believe beginning at Page 8, if you look at Dr. Korb's opinion, there's either no facts or data relied upon, or the facts and data that were relied upon consist of Dr. Frank's book and a New York Times article. I think in the section before that, he relies upon a Rachael Maddow interview. Even if this testimony were otherwise admissible under the first prong of 702, to the extent it could ever be helpful to the Court in a facial constitutional challenge, the reliability is facially inherently suspect. This Court has already addressed the disparate
04:43 04:43 04:42
And
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treatment claim from lesbian service members, and I won't rehash that. But I do want to focus a little bit more on Korb's reliability issue. Dr. Korb was asked repeatedly at his
04:43
deposition, Are you challenging the wisdom of Congress in its failure to consider certain issues? Are you challenging the
wisdom of Congress in its weighing of issues differently? And what did Dr. Korb say repeatedly, as we noted in our motion? Yes, I'm challenging the wisdom of Congress.
04:44
Now, I understand the plaintiff now wants to sort of recast these opinions, and say, No, he's not going to do that; that's not the purpose. But I think a fair and plain reading
of his expert report reveals exactly the opposite, that all of their expert witnesses at the end of the day want to challenge the congressional findings. And that is simply inappropriate.
04:44
I know this Court has considered the cumulativeness issue under 403. The only other point I wanted to raise briefly was Dr. Belkin's, quote, "revised report." As we mentioned in the motion, that revised opinion should be struck. That's an opinion related to privacy.
04:44
And just very quickly, per the pretrial schedule in this case, Dr. Belkin submitted an initial expert report on January 15th of this year. And there's no dispute whatsoever
04:45
that he didn't offer any opinions about privacy in that
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original report. The night before his deposition, as Dr. Belkin testified, counsel for LCR asked Dr. Belkin, Hey, Dr. Belkin, will you offer an opinion about privacy? So the next day at his deposition, my colleague, Mr. Freeborne, asked Dr. Belkin, What did you do to prepare for your deposition? Spoke to counsel. What did you speak about? Privacy. And that's where the privacy discussion came up. And then on March 24th, approximately three weeks later, Dr. Belkin now submits a revised report offering an opinion about privacy. This isn't a circumstance where Rule 26(e) applies. There is certainly no duty to supplement a report as, quote, "new facts become available." facts. Dr. Belkin presumably had these
04:45 04:45 04:45
In fact, Dr. Belkin testified at his deposition that
he's considered privacy issues before. Frankly, this last-ditch effort to offer what is essentially a rebuttal opinion is inappropriate and should be excluded under Rule 37. The fact that the government asked
04:46
Dr. Belkin questions about the issue is largely irrelevant, because, again, this is a violation of Rule 16 now and the pretrial order deadlines. Plaintiff has to show good cause as
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to why it has the opportunity to issue revised opinions. failed to meet that burden. Thank you, Your Honor. THE COURT: Mr. Woods. MR. WOODS: Thank you.
It's
04:46
Your Honor, I have several comments about
each of the individual experts, and then I want to talk about a larger subject when I'm finished with that. First, you asked about portions of the testimony of Professor Frank and the potential application of the legislator's privilege to that testimony. As we all know, that issue was not part of the government's motion in limine. been briefed. And so what I intend to do, Your Honor, between now and the date that we call Professor Frank, is to consider that issue very carefully. If we think that his testimony or parts
04:47 04:47
It was not briefed and has not
of it would be in violation of that privilege, we won't ask him those questions. If we, however, Your Honor, conclude that it would not violate that privilege, then we will supplement our briefing on this for you and provide you a brief about that. Because I seem to recall school prayer cases where the intent of the legislators was considered as part of the constitutional challenge to school prayer issues. But, as I said, we'll brief
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that later on. With respect to Ms. Embser-Herbert, the point here, Your Honor, is not that it's an Equal Protection claim. know it's not an Equal Protection claim. And while people, including her perhaps, use the term "disproportionate impact," it's not used in that sense. The
04:48
We
sense of it is that "Don't Ask, Don't Tell" doesn't further its stated policies because of the way it is impacting women instead of men. If the policy really was to further the
04:48
interests that it is supposedly furthering, you wouldn't see 40 percent of the discharges being women. We're not offering
it to support an Equal Protection claim; we're offering it to show that the policy doesn't accomplish its stated purposes. She is a sociologist who's testifying, from that viewpoint, on how the policy disproportionately impacts women and related subjects. In contrast, Elizabeth Hillman, Your Honor, who is a professor of law, is not testifying as a lawyer in this case; she's testifying as a historian, a military historian no less, whose particular emphasis is on military history and women. She was in the military herself. angle. And you asked about her methodology and whether it was clear enough. And, again, I would suggest to you that her
04:49 04:49 04:48
So her testimony is from that
report was perhaps briefer than some of the others and didn't
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explain it in as much detail as others.
But as a social
scientist, historian in particular, it's not a situation where you're going to find scientific experiments. She's going to
rely on the traditional things a historian, particularly with an emphasis on military history and issues about women in military issues, would testify. And, again, I think that's something that perhaps ought to be best taken up at the trial. If it doesn't qualify
04:49
once we lay a foundation, we can deal with it at that point, Your Honor. Similarly, counsel just asked about Professor Korb. And I have to say, I mean, I think his argument about Professor Korb doesn't do his stature the service it deserves. And this is a recognized member of our military defense organization from his career. THE COURT: Defense. MR. WOODS: Yes. And he's certainly not going to He is the former Assistant Secretary of
04:50 04:50
come here, Your Honor -- we aren't calling him to say any legal opinion or conclusion. more credit than that. With regards to Professor Belkin's revised report, we covered that, Your Honor, in the declaration of Ms. Feldman that we submitted with our opposition papers. What happened was, in the pre-deposition meeting, he
04:51
I hope counsel would give us a little
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was informed that he would likely be asked questions about privacy. And so he was. He was asked in his deposition if he He said, Yes, I'd be happy
would be supplementing his report. to. And he did.
And those are the facts before you now.

04:51
And, again, those are the facts we put to you in Ms. Feldman's declaration in opposition to the motion. The
government's reply papers did not contradict them at all. Once again, I think you hit on this before when you were saying that the government was trying to have it both ways. In other words, the government is trying to say that in
04:51
a facial challenge, all the Court can look at is the legislative history, and at the same time exclude all of our evidence, so therefore what could possibly be challenged? But I think we have briefed adequately, throughout all of the papers that we have filed leading up to this conference, the points that we have made throughout, which is that the position by the government is just plain wrong. We have many cases, Cleburne, Lawrence, and other facial challenge cases, where evidence was admitted after the enactment of the statute, both in terms of what people learned about the enactment of the statute after it was passed and how it was implemented in practice. We've got lots of cases in our
04:52 04:52
opposition to the summary judgment motion, in our pretrial memorandum of contentions of fact and law, and our proposed findings of fact and conclusions of law, and in our
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supplemental brief on Witt. Again, counsel for the government continues to cite to you cases that are not governing law in this circuit. mean, he cites Philips. I
And we have said over and over, and

04:53
you have said twice, that Philips is no longer a good law after Lawrence. He cites Cook. And the Cook case says many, many
times that it explicitly disagrees with the Witt case; And so it is not the law of this circuit. Witt is.
04:53
Once again, the Government is ignoring the controlling law in the circuit, which is the Witt case. And he mentions the Abel case in which two of our experts were qualified as experts. You know, once the Court allows evidence to come in on a facial challenge, it really shouldn't matter whether the evidence is from an individual who presents facts or whether it's from an expert who synthesizes many facts and makes these facts more useful and intelligently presented to the Court. So all of these arguments, I think, Your Honor, we have already covered. I do want to go back to one other thing, though, that Mr. Gardner said. I think, Your Honor, we're all waiting for a final definitive ruling on the government's motion for summary judgment on the merits and a final ruling as to whether the
04:53
04:53
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Witt standard does apply. THE COURT: The Witt standard does apply.
I have not issued a written ruling on it, and I had hoped to have it by today, but a ruling on the motion is going to go out this week. But the Witt standard, that part is done,
04:54
and the Witt standard is going to apply. MR. WOODS: Very well. Thank you.
And I think that's right, for all of the reasons we've briefed before. But I want to follow up on something Mr. Gardner just said. He said to you a moment ago, if I heard him correctly,
04:54
Your Honor, that if the Witt standard applies -THE COURT: Please slow down. I'm going to put a It won't be the
04:54
sign on the lectern for this trial, I can see. first time I've done that. MR. WOODS: THE COURT: Go ahead. MR. WOODS: Or the last.
And it's going to apply to both sides.
I should speak more slowly on this point,

04:55
because it's really important. If I understood what Mr. Gardner just said correctly, he said that if the Witt standard applies, and we know what that means, that means the Government has a burden to show certain things. He has just said, again, that the government
does not intend to present any evidence at this trial beyond
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the legislative history. I will remind you, Your Honor, you gave the government the opportunity to present evidence in your order requesting supplemental briefing about the application of the Witt standard and whether "Don't Ask, Don't Tell" survives in light of the Witt standard's application to this case. And the
04:55
government chose not to present any evidence in response to that invitation you gave to the government. Mr. Gardner just said, If the Witt standard applies and we're not going to produce any evidence, there may be no need for a trial. Your Honor, I think, for once, I happen to agree with Mr. Gardner. There is no need for a trial if that's the
04:56
government's position. Instead, you should grant summary judgment right now, right here, to us, sua sponte. Because once the Witt standard I read it already to you The government has to show
04:56
applies, we know what that means. once today. It's in your order.
certain things.
If the government does not intend to show And that's

04:56
that, then there is no need for a trial and we win. something I think that may be worthy of some further consideration. Thank you, Your Honor. THE COURT: All right.
MR. GARDNER:
Your Honor, may I add just one very
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quick point. Witt standard.
You've indicated that you're going to apply the
THE COURT: on the Witt standard.
I'm not going to hear any more argument I gave both sides the opportunity to
04:57
brief the Witt standard, and the government's brief didn't really address the Witt standard. You spent the first, I can't remember, four or five pages addressing whether the Court should issue a stay in this case, but you didn't address the Witt standard. And I have a
lot of attorneys waiting outside for my next matter, so I need to move on to finish up with your case. the motions. Is there a motion to exclude witnesses during testimony? MR. FREEBORNE: Yes, Your Honor. So no more argument on
04:57
04:57
Just to be clear, obviously experts would not be excluded, nor the party representative, but the fact witnesses would. And just to be clear, there can be no discussion with a
witness while they're on the stand. THE COURT: No discussion of the witness while... No discussion with the witness while
04:57
MR. FREEBORNE: he or she is on the stand. THE COURT:
Of course.
That's right.
So each side is responsible for making sure that your witnesses know to stay out of the courtroom during -- that
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doesn't include, of course, openings and closings, just testimony. And it doesn't apply to experts. Make sure your
witnesses know to remain outside of the courtroom during testimony. Then we have the issue of Mr. MacCoun. Is he to be considered unavailable because under the terms of his contract, he can't testify? MR. WOODS: trial subpoena. today. Your Honor, we have served him with a
04:58
We filed a proof of service of that subpoena

04:58
I continue to believe that he will not appear despite I imagine that we only recently served the
the subpoena.
subpoena, and it's possible that he may appear, but I tend to doubt it. THE COURT: MR. WOODS: He's the witness that works at RAND? He is working for RAND currently, yes.
04:59
He's a UC Berkeley professor by profession. THE COURT: But he takes the position that he can't
testify because of the terms of his consulting contract with RAND? MR. WOODS: THE COURT: videotaped? MR. WOODS: THE COURT: It was not, Your Honor. The government cited some authority to
04:59
Yes, Your Honor. All right. Well, was his deposition
04:59
the effect that it's preferable to have a witness testify in
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person than by deposition, which is true.
The thing that's not
clear to me is that a witness could be considered unavailable because, by the terms of a contractual obligation, he more or less declares himself unavailable. I've just never had that issue come up before. I'm not making light of it. And
05:00
The marshals are very, especially
in this district, completely overworked. I think I'm going to research that a little bit. I'm not persuaded that makes him unavailable, then it's just like any other witness, expert or no, if he doesn't obey a subpoena, then he'll receive another kind of invitation to appear. MR. WOODS: We will also research that, Your Honor,
05:00
If
and perhaps we could let Professor MacCoun know that he may get a different kind of invitation to appear. THE COURT: You know, a witness is a witness. I just
05:00
went through this with some other reluctant witnesses in the trial that I hope to finish tomorrow, so... There are no exemptions. exemption. But I'm just not sure whether it's a contractual obligation. I don't know why it would be. So one way or the Occupation is not an
05:01
other -- he may be riding in a different sort of vehicle than he's used to to appear. Any other witness issues that we're aware of?
05:01
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MR. WOODS: THE COURT:
No, Your Honor. All right.
Is either side going to use any equipment other than the equipment that's in the courtroom? For example, are you going to hook up your own computers to do PowerPoints, anything like that? MR. GARDNER: We do intend to use TrialDirector, Your As I understand it,
05:01
Honor, and we do intend to use realtime.
we can use the courtroom's facilities both to transmit documents through TrialDirector and using the E.L.M.O. And for
05:01
realtime, we will bring in our own laptops, if that's -THE COURT: Director"... MR. GARDNER: TrialDirector is one of the proprietary
05:02
That's fine.
When you say "Trial
software items that allows you to put up documents on the screen. It's a little more high tech than the E.L.M.O. It
allows you to blow up portions of documents, et cetera. THE COURT: I just wasn't familiar with it.
And your side? MR. WOODS: Your Honor. THE COURT: Just make sure to make an appointment I imagine we'll do something similar,
05:02
through Ms. Dillard to come in and get your equipment installed; and make sure, through the Court's IT person, that everything works smoothly, so that we're ready to go on the
05:02
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morning of. You should be able to set your things up -- I've always wanted to say this: Have your people talk to my people,
the Friday before trial and make sure everything is up and working. The courtroom should be available to you. Make sure your depositions are lodged with the Court, with the clerk before trial. Make sure that you comply with the local rule about redacting any personal identifying information, including social security numbers, home addresses, and telephone numbers of individual persons. I'll allow the parties to make a short opening statement, but keep in mind I've already read your memorandum of contentions of law and fact; but you're free to give a short opening statement at the beginning, if you'd like. MR. FREEBORNE: Your Honor, that presents some Obviously, the way we see this
05:03 05:03 05:02
particular difficulties for us.
case is, it presents legal issues; and I know Your Honor has a standing order which prohibits legal argument in the context of an opening statement. dispensed with. We would ask that opening statements be
05:04
The parties have been heard on these issues. I'm not so concerned in a court trial. I
THE COURT:
mean, as lawyers who practice regularly in front of me can tell to you, to their dismay I'll interrupt in a jury trial, even without objection from the other side, if I think it's
05:04
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argument. I agree with you in this case that it's hard to separate. So if you want to waive, you can waive. But if you
want to give a brief opening to set the stage, you can do so. But I am familiar, and I hope to be even more familiar by July 13th. So if you want to set the stage and If you want to waive,
05:04
give a brief opening, that's fine. that's fine.
A joint witness list is to be submitted. When I take up my other matter, Ms. Dillard will talk to you about the exhibit list and the exhibit notebooks and so forth. Then she'll return those to you. So, like I said, you can -- well, you know what I mean by recycling them, use them for these purposes. I will issue a written ruling on the motions in limine. And, like I said, I intend to have the ruling on the motion for summary judgment out this week. Anything further from either side? MR. FREEBORNE: Your Honor, when can we expect the
05:06 05:06 05:05
order on the motions in limine? THE COURT: week. MR. FREEBORNE: MR. WOODS: Thank you.
05:06
This week.
It's mostly done, so this
Nothing further, Your Honor.
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THE COURT:
All right.
Thank you very much.
(Proceedings concluded.)
CERTIFICATE
I hereby certify that pursuant to section 753, title 28, United States Code, the foregoing is a true and correct transcript of the stenographically recorded proceedings held in the aboveentitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. _/S/ Theresa A. Lanza CSR, RPR Federal Official Court Reporter _________________ Date
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0
04-8425-VAP(ex [1] 4:4
6
6108 [1] - 2:15 633 [1] - 2:6
1
10 [2] - 43:7, 43:8 12 [1] - 12:8 13,000 [1] - 31:20 13,400 [1] - 32:14 13th [2] - 4:17, 62:6 14 [1] - 4:3 15th [1] - 48:24 16 [1] - 49:24 17th [5] - 14:25, 25:16, 25:21, 25:22, 26:9 1900 [1] - 2:7
7
702 [5] - 34:22, 39:6, 39:15, 47:1, 47:22 7th [2] - 15:1, 16:17
8
8 [1] - 47:15
9
9 [1] - 10:9 90071-2007 [1] - 2:7
2
20 [1] - 2:14 20001 [1] - 2:15 2010 [1] - 4:1 202-353-0543 [1] 2:16 20th [4] - 16:22, 30:15, 30:18, 31:1 213-620-7772 [1] 2:8 24th [1] - 49:12 26 [1] - 15:15 26(e [1] - 49:15 26th [2] - 16:6, 25:11 27th [1] - 25:6 28 [1] - 4:1
A
Aaron [3] - 2:6, 4:14, 37:16 Abel [3] - 46:10, 46:12, 54:12 ability [3] - 14:24, 26:20, 26:23 able [3] - 4:24, 5:17, 61:2 absence [1] - 4:20 abundant [1] - 27:14 accomplish [1] 51:13 according [2] 12:12, 28:17 accurate [3] - 20:11, 35:7, 35:9 acknowledged [1] 43:6 action [1] - 21:14 add [2] - 29:16, 56:25 addition [1] - 26:24 address [9] - 9:7, 23:23, 27:2, 39:17, 40:14, 46:13, 47:3, 57:6, 57:9 addressed [1] 47:25 addresses [4] 14:25, 26:1, 46:25, 61:10 addressing [2] 23:22, 57:8 adduced [1] - 21:15
3
30(b)(6 [6] - 12:25, 13:15, 13:24, 14:13, 16:24, 24:15 37 [1] - 49:22 37(c)(1 [2] - 14:22, 22:9 3:27 [1] - 4:1
4
4 [1] - 3:3 40 [1] - 51:11 402 [1] - 34:22 403 [2] - 34:25, 48:17
adducing [1] - 16:14 adequately [1] 53:14 admissibility [6] 7:15, 7:23, 8:2, 37:21, 38:3, 38:14 admissible [12] 7:24, 14:18, 17:25, 34:24, 35:18, 36:2, 39:20, 39:23, 39:24, 39:25, 40:6, 47:21 admission [1] - 8:20 admit [1] - 10:21 admitted [7] - 8:10, 11:5, 11:12, 11:16, 11:23, 12:2, 53:19 adopt [1] - 15:10 adopts [1] - 31:14 advance [7] - 6:14, 11:22, 15:22, 15:23, 23:11, 23:14, 31:9 affect [2] - 13:8, 13:25 afternoon [1] - 4:11 ago [1] - 55:11 agree [13] - 6:1, 7:15, 7:19, 7:24, 8:5, 8:9, 9:15, 14:1, 18:10, 42:7, 45:1, 56:12, 62:2 agreed [1] - 17:23 ahead [3] - 11:17, 40:20, 55:18 Air [1] - 44:11 al [1] - 4:5 allow [5] - 9:12, 17:10, 19:3, 19:16, 61:12 allowed [1] - 35:18 allowing [5] - 14:14, 14:16, 16:9, 29:6, 30:20 allows [3] - 54:14, 60:15, 60:17 alluded [1] - 42:5 almost [2] - 9:16, 33:8 alternative [1] 34:24 America [2] - 4:5, 30:9 amicus [1] - 41:16 analysis [3] - 36:7, 44:19, 46:7 analyze [2] - 37:6, 44:6 anecdotal [1] - 36:1 Angeles [1] - 2:7 angle [1] - 51:22 animate [2] - 45:19
animus [2] - 10:6, 45:13 answer [2] - 13:14, 19:14 answered [1] - 47:6 appeal [1] - 28:24 appear [8] - 6:8, 6:10, 11:5, 58:10, 58:12, 59:12, 59:15, 59:24 APPEARANCES [1] 2:1 appearances [1] 4:6 application [10] 12:22, 27:24, 28:4, 28:6, 28:10, 28:15, 33:11, 50:10, 56:4, 56:6 applications [1] 46:24 applied [7] - 31:1, 32:22, 33:16, 41:8, 41:13, 45:23, 46:21 applies [7] - 12:17, 45:4, 49:15, 55:12, 55:22, 56:9, 56:17 apply [12] - 9:22, 15:20, 16:7, 31:3, 44:19, 44:22, 55:1, 55:2, 55:6, 55:17, 57:1, 58:2 applying [1] - 31:5 appointment [1] 60:22 April [3] - 16:6, 25:6, 25:11 aptly [1] - 40:1 area [1] - 37:3 areas [1] - 27:6 argue [4] - 22:13, 29:6, 38:21, 45:3 argues [6] - 12:17, 13:1, 13:6, 15:8, 34:21, 34:23 argument [15] 12:21, 16:25, 21:3, 21:25, 22:6, 26:25, 29:25, 32:25, 33:1, 42:14, 52:12, 57:3, 57:11, 61:19, 62:1 arguments [4] 21:24, 30:6, 31:2, 54:19 arranged [2] - 5:7, 5:11 arrangements [1] 17:4 article [1] - 47:18 as-applied [4] - 41:8,
41:13, 45:23, 46:21 aside [1] - 27:20 aspect [1] - 27:11 asserted [2] - 28:14, 28:18 assertion [2] - 27:25, 28:9 assist [1] - 39:7 Assistant [1] - 52:16 associated [1] 45:16 associational [2] 28:13, 28:16 assume [1] - 23:22 assuming [1] - 18:20 attached [1] - 35:8 attack [1] - 38:21 attempting [1] 23:16 attempts [1] - 31:7 attorneys [3] - 24:15, 24:17, 57:10 authenticated [1] 17:24 authenticity [1] 8:22 authority [1] - 58:24 available [5] - 5:12, 15:12, 16:22, 49:17, 61:5 Avenue [1] - 2:14 aware [1] - 59:25
B
backup [2] - 5:7, 5:14 bad [1] - 44:16 balancing [1] - 22:8 bar [2] - 14:6, 34:18 based [13] - 7:9, 8:16, 8:25, 10:5, 11:18, 36:16, 36:23, 37:7, 37:9, 37:11, 37:21, 39:11, 46:16 basic [2] - 42:2, 45:21 basis [8] - 12:2, 12:13, 34:21, 36:4, 36:9, 36:15, 46:21, 47:9 bears [1] - 45:9 became [1] - 20:15 become [3] - 11:24, 20:4, 49:17 begin [2] - 4:17, 29:5 beginning [3] - 17:7, 47:15, 61:15 begins [1] - 16:17
Case Name/number
date
302
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Behalf [2] - 2:3, 2:10 behalf [4] - 4:7, 9:4, 14:7, 32:9 belie [1] - 27:25 belies [1] - 28:14 Belkin [10] - 37:16, 48:23, 49:2, 49:3, 49:6, 49:13, 49:17, 49:18, 49:23 Belkin's [2] - 48:19, 52:22 belying [1] - 32:8 benefits [1] - 7:22 Berkeley [2] - 38:5, 58:16 best [2] - 9:9, 52:8 between [3] - 15:2, 24:6, 50:15 beyond [6] - 12:15, 13:15, 13:18, 27:10, 44:5, 55:25 bifurcation [1] - 5:19 Biodiversity [2] 20:20, 21:3 bit [3] - 33:6, 48:3, 59:8 bits [1] - 36:1 blow [1] - 60:17 book [1] - 47:18 Bowser [1] - 41:18 Bradley [1] - 2:13 branch [3] - 22:24, 32:2 Branch [1] - 2:12 breakdown [1] - 12:8 breath [1] - 25:5 brief [10] - 43:6, 44:22, 45:12, 50:22, 50:25, 54:1, 57:5, 62:4, 62:7 briefed [4] - 50:13, 50:14, 53:14, 55:9 briefer [1] - 51:25 briefing [2] - 50:22, 56:4 briefly [1] - 48:18 briefs [2] - 29:24, 41:16 bring [7] - 14:9, 28:3, 28:22, 33:20, 42:22, 43:12, 60:11 bringing [1] - 32:9 broad [3] - 7:9, 8:25, 11:19 broad-based [2] 7:9, 8:25 broader [2] - 19:4, 45:14 brought [1] - 19:19 burden [7] - 33:18,
44:24, 45:4, 45:9, 50:2, 55:23 BY [7] - 2:5, 2:5, 2:6, 2:12, 2:13, 2:13, 2:14
C
Cabin [3] - 4:4, 4:13, 20:4 Calendar [1] - 4:3 calendar [1] - 4:15 California [2] - 2:7, 4:1 Canada [1] - 39:23 cannot [4] - 5:11, 36:13, 41:23, 42:2 caption [1] - 30:13 care [3] - 5:9, 6:14, 24:23 career [1] - 52:15 carefully [1] - 50:17 Case [2] - 4:4, 4:12 CASE [1] - 2:4 case [52] - 7:3, 7:10, 7:17, 9:1, 11:13, 11:14, 12:14, 13:15, 13:16, 16:2, 20:9, 20:19, 21:7, 22:9, 23:18, 24:12, 25:6, 26:23, 27:14, 28:17, 30:13, 31:6, 32:16, 33:3, 34:15, 35:19, 39:4, 41:4, 42:1, 42:18, 44:7, 44:8, 44:12, 45:6, 45:11, 46:4, 46:9, 46:10, 46:14, 47:4, 47:5, 48:23, 51:18, 54:7, 54:8, 54:11, 54:12, 56:6, 57:9, 57:11, 61:18, 62:2 case's [1] - 47:14 cases [17] - 32:9, 33:13, 33:25, 34:2, 34:7, 34:8, 34:11, 34:13, 50:23, 53:18, 53:19, 53:22, 54:3 categories [1] 29:15 certain [7] - 6:12, 6:20, 9:7, 9:15, 48:6, 55:24, 56:19 certainly [6] - 5:23, 12:1, 20:24, 21:25, 49:16, 52:18 cetera [2] - 10:17, 60:17 challenge [45] - 7:9, 9:2, 12:14, 12:15,
19:15, 23:13, 27:10, 27:14, 27:15, 27:17, 27:19, 28:1, 28:2, 28:3, 28:5, 32:8, 32:20, 33:13, 33:18, 33:20, 33:25, 34:8, 34:9, 38:15, 41:1, 41:3, 41:5, 41:8, 41:10, 41:12, 41:13, 41:21, 42:3, 42:16, 42:22, 43:12, 45:10, 45:17, 46:23, 47:23, 48:14, 50:25, 53:11, 53:19, 54:15 challenged [1] 53:13 challenges [5] 33:22, 33:23, 34:7, 34:12, 41:22 challenging [6] 19:16, 27:19, 42:6, 48:5, 48:6, 48:9 change [1] - 15:20 chaos [2] - 8:3, 11:15 Chapter [1] - 43:7 chapter [1] - 43:8 characterize [1] 36:1 characterizes [1] 34:19 Chief [1] - 44:14 choose [2] - 24:6, 40:24 chose [1] - 56:7 Circuit [1] - 46:18 circuit [3] - 54:3, 54:9, 54:11 Circuit's [1] - 46:3 circuits [1] - 46:20 circumstance [1] 49:15 circumstances [3] 12:19, 14:14, 23:4 cite [2] - 43:25, 54:2 cited [9] - 13:19, 13:20, 14:3, 20:20, 21:2, 27:14, 33:13, 41:4, 58:24 cites [4] - 33:25, 46:9, 54:4, 54:7 citing [2] - 34:2, 34:11 city [1] - 41:9 Civil [1] - 2:12 claim [7] - 14:23, 28:18, 39:2, 48:1, 51:3, 51:4, 51:12 claims [3] - 15:16, 15:18, 15:20
class [1] - 15:3 clear [11] - 11:24, 13:20, 40:23, 40:24, 40:25, 45:6, 46:4, 51:24, 57:16, 57:18, 59:2 Cleburne [3] - 41:7, 41:10, 53:18 CLERK [1] - 4:3 clerk [1] - 61:7 close [1] - 24:22 closings [1] - 58:1 code [1] - 44:6 cohesion [11] - 32:5, 38:12, 40:3, 42:13, 42:14, 43:3, 43:9, 43:13, 46:1 colleague [1] - 49:5 colleagues [2] - 4:9, 4:13 Colonel [2] - 20:8, 20:15 comments [3] - 35:3, 37:4, 50:6 common [1] - 7:11 complain [1] - 30:23 complete [1] - 4:25 completely [2] 41:14, 59:7 comply [1] - 61:8 compound [1] 28:11 computers [1] - 60:6 conceive [1] - 9:23 concern [1] - 32:13 concerned [7] - 4:21, 9:19, 21:23, 32:17, 39:10, 39:14, 61:22 concerns [4] - 13:9, 35:4, 35:6, 39:18 conclude [4] - 44:23, 45:3, 45:8, 50:20 concluded [1] 46:19 conclusion [8] 37:18, 37:21, 37:24, 42:21, 42:23, 45:2, 46:16, 52:20 conclusions [2] 47:14, 53:25 conduct [5] - 24:5, 24:9, 26:4, 30:14, 30:24 conducted [1] - 46:7 conducting [1] 24:19 confer [4] - 26:7, 26:10, 26:11, 29:11 conference [3] 4:16, 7:1, 53:16
conflict [1] - 5:6 confusion [2] - 21:5, 21:9 Congress [18] - 9:4, 9:15, 36:20, 36:24, 37:2, 37:4, 42:6, 42:13, 42:20, 42:23, 43:8, 43:16, 43:18, 43:19, 43:24, 48:5, 48:7, 48:9 congress [1] - 43:10 Congress's [1] 43:2 congressional [1] 48:15 connection [3] 13:11, 17:15, 21:15 consensual [1] 41:20 consider [9] - 6:3, 16:8, 33:9, 33:10, 41:8, 42:2, 43:18, 48:6, 50:16 consideration [2] 42:4, 56:22 considered [13] 33:7, 42:13, 42:23, 43:10, 43:16, 43:19, 46:4, 46:5, 48:16, 49:19, 50:24, 58:6, 59:2 considering [2] 16:13, 29:17 consist [1] - 47:18 consists [1] - 7:19 Constitution [1] 32:9 constitutional [13] 41:5, 41:12, 42:3, 42:16, 45:9, 45:17, 46:7, 46:19, 46:22, 46:24, 47:23, 50:24 consulted [1] - 10:17 consulting [1] 58:18 contact [3] - 16:18, 25:25, 26:9 contain [1] - 9:8 contains [1] - 15:14 content [1] - 10:24 contentions [2] 53:24, 61:14 context [7] - 13:20, 13:21, 14:2, 43:22, 45:23, 46:5, 61:19 continue [3] - 5:3, 19:15, 58:10 continues [2] 34:21, 54:2 continuing [1] - 15:6
Case Name/number
date
303
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contract [2] - 58:7, 58:18 contractual [2] 59:3, 59:21 contradict [1] - 53:7 contrary [1] - 41:24 contrast [1] - 51:17 controlling [1] 54:11 Cook [3] - 46:3, 54:7 cook [1] - 46:4 core [1] - 24:20 correct [7] - 12:8, 12:9, 19:23, 21:20, 25:21, 25:22, 26:2 corrected [1] - 38:16 correctly [5] - 5:4, 32:14, 38:5, 55:11, 55:21 counsel [14] - 4:6, 4:22, 4:24, 6:25, 24:18, 30:5, 30:12, 31:3, 38:21, 49:3, 49:8, 52:11, 52:20, 54:2 country [1] - 39:23 couple [3] - 6:2, 17:12, 35:3 course [6] - 6:19, 15:6, 15:21, 33:21, 57:23, 58:1 COURT [60] - 4:11, 4:15, 4:19, 5:12, 5:15, 5:22, 7:11, 8:1, 8:14, 9:6, 10:7, 18:2, 18:9, 18:12, 18:25, 19:8, 19:14, 19:24, 20:10, 20:22, 21:1, 21:12, 21:19, 22:13, 22:15, 23:25, 25:20, 25:25, 27:1, 29:2, 32:12, 33:16, 34:4, 34:16, 35:23, 38:9, 40:12, 40:17, 40:19, 43:25, 50:4, 52:16, 55:2, 55:13, 55:17, 56:24, 57:3, 57:20, 57:23, 58:14, 58:17, 58:21, 58:24, 59:16, 60:2, 60:12, 60:18, 60:22, 61:22, 62:22 Court [44] - 7:22, 7:23, 8:8, 15:9, 16:8, 17:20, 18:6, 19:21, 20:13, 20:17, 24:3, 24:4, 24:7, 24:9, 24:22, 26:16, 26:24, 27:5, 27:11, 27:14, 28:17, 29:5, 30:19, 31:5, 31:14, 41:2,
41:8, 41:15, 42:5, 42:10, 42:16, 43:21, 44:12, 44:19, 45:13, 45:15, 47:23, 47:25, 48:16, 53:11, 54:14, 54:18, 57:8, 61:6 court [5] - 6:8, 6:9, 14:9, 27:17, 61:22 Court's [6] - 4:15, 15:19, 29:19, 29:22, 31:3, 60:24 courtroom [4] 57:25, 58:3, 60:4, 61:5 courtroom's [1] 60:9 covered [6] - 6:10, 18:7, 22:15, 40:12, 52:23, 54:20 Craig [1] - 17:14 crammed [1] - 29:14 credit [1] - 52:21 criminalizing [1] 41:20 criteria [1] - 28:16 criticisms [1] - 38:13 Crittenden [1] 22:25 cross [9] - 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 11:9, 19:17, 26:20 cross-examination [1] - 11:9 cross-examine [8] 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 19:17, 26:20 crucial [1] - 11:13 cumulative [10] 12:24, 22:1, 22:5, 22:7, 28:25, 32:1, 32:11, 32:12, 32:18, 35:1 cumulativeness [6] 23:24, 27:3, 27:6, 28:8, 48:16 curable [1] - 16:20 cutoff [1] - 26:18 CV [1] - 4:4
D
Dan [2] - 2:5, 4:12 data [6] - 39:11, 40:2, 40:4, 42:25, 47:16, 47:17 date [2] - 21:14, 50:16
Daubert [4] - 38:15, 38:17, 38:20 days [5] - 4:25, 5:8, 5:16, 5:17, 24:8 DC [1] - 2:15 deadlines [1] - 49:25 deal [2] - 9:9, 52:9 dealt [1] - 43:8 decided [5] - 25:7, 25:10, 25:11, 25:17, 42:24 decision [6] - 15:19, 16:9, 41:18, 46:1, 46:3, 46:18 decisis [1] - 41:19 declaration [3] 17:24, 52:23, 53:6 declarations [2] 17:15, 31:24 declares [1] - 59:4 defendant [1] - 16:13 Defendants [1] 2:10 defendants [6] 12:7, 14:23, 23:16, 24:16, 26:6, 45:1 defense [8] - 6:1, 12:12, 12:17, 13:6, 16:24, 20:12, 21:25, 52:14 Defense [2] - 24:17, 52:17 defer [1] - 24:7 defers [1] - 43:23 definitive [1] - 54:24 definitively [1] 19:12 degree [1] - 9:8 denied [3] - 11:20, 12:3, 14:23 deny [2] - 17:9, 21:22 denying [1] - 27:11 departed [1] - 41:19 DEPARTMENT [1] 2:11 Department [2] 24:17, 44:10 depose [6] - 14:24, 16:21, 17:21, 18:24, 26:17, 26:21 deposition [16] 15:13, 16:22, 19:3, 35:8, 35:12, 35:13, 47:5, 48:5, 49:2, 49:5, 49:7, 49:18, 52:25, 53:2, 58:21, 59:1 depositions [17] 13:5, 13:13, 16:24, 17:3, 17:8, 17:10,
17:11, 24:5, 24:15, 24:19, 30:10, 30:14, 30:18, 30:21, 30:25, 61:6 describe [1] - 10:19 described [1] - 22:4 deserves [2] - 7:24, 52:13 designated [2] 13:17, 14:7 designation [2] 13:16, 13:18 despite [1] - 58:10 detail [2] - 29:21, 52:1 detailed [1] - 17:1 determination [1] 44:18 determinations [1] 43:2 determinative [1] 26:3 determine [1] - 41:16 determined [1] 46:6 developed [1] - 34:3 developments [1] 14:13 different [7] - 31:22, 32:3, 32:10, 35:4, 46:20, 59:15, 59:23 differently [1] - 48:7 difficulties [1] 61:17 diligently [1] - 31:1 Dillard [2] - 60:23, 62:10 direct [4] - 10:12, 10:18, 10:20, 10:22 directed [4] - 32:20, 32:21, 32:22, 33:2 Director".. [1] 60:13 disagree [1] - 30:17 disagrees [2] - 41:2, 54:8 disappointed [1] 8:21 discerned [1] - 41:16 discharge [4] 12:19, 23:5, 32:4, 37:22 discharged [2] 31:21, 32:15 discharges [2] 31:17, 51:11 disclose [2] - 23:23, 24:21 disclosed [1] - 14:25 disclosure [7] -
15:15, 15:17, 15:19, 16:3, 16:11, 16:12, 18:20 disclosures [6] 12:11, 15:3, 15:7, 16:15, 24:24, 25:9 discovery [3] 12:12, 24:22, 26:18 discussion [4] 49:11, 57:18, 57:20, 57:21 disfavored [1] 41:12 dismay [1] - 61:24 disparate [2] - 40:9, 47:25 dispensed [1] 61:21 dispositive [2] 42:25, 43:1 disproportionate [1] - 51:6 disproportionately [1] - 51:15 dispute [3] - 42:18, 43:5, 48:24 disputed [2] - 6:25, 33:21 disputes [1] - 15:2 District [2] - 46:12, 46:17 district [1] - 59:7 ditch [1] - 49:20 Division [1] - 2:12 document [1] - 17:24 documents [6] - 7:5, 11:15, 11:16, 60:10, 60:15, 60:17 doe [1] - 21:11 Doe [3] - 20:3, 20:15, 21:4 Doe's [1] - 20:8 done [5] - 26:19, 30:10, 55:5, 55:15, 62:22 doom [1] - 46:22 Dorman [1] - 36:25 Dorman's [1] - 37:1 doubt [1] - 58:13 down [4] - 15:18, 16:4, 34:4, 55:13 Dr [21] - 43:4, 43:7, 47:3, 47:4, 47:8, 47:11, 47:12, 47:16, 47:18, 48:4, 48:8, 48:19, 48:23, 49:2, 49:3, 49:6, 49:13, 49:17, 49:18, 49:23 dress [1] - 44:6 due [1] - 20:18
Case Name/number
date
304
Case: 10-56634 10/25/2010 Page: 67 of 74
ID: 7521688 DktEntry: 9-14 4
dues [1] - 20:4 during [11] - 13:13, 14:18, 19:2, 22:24, 24:10, 35:13, 36:24, 37:24, 57:13, 57:25, 58:3 duty [3] - 15:6, 24:23, 49:16
E
E.L.M.O [2] - 60:10, 60:16 Earle [2] - 2:5, 4:14 early [5] - 15:3, 15:6, 16:15, 16:18, 26:1 Eastern [2] - 46:12, 46:17 effect [5] - 33:10, 36:15, 36:17, 40:3, 58:25 efficient [3] - 5:20, 14:10, 28:22 effort [1] - 49:20 egregious [1] - 26:5 eight [3] - 12:10, 14:20, 30:13 either [9] - 11:7, 12:10, 13:15, 20:16, 28:2, 36:20, 47:16, 60:3, 62:19 elected [1] - 30:17 element [1] - 23:18 elicited [1] - 13:23 Elizabeth [1] - 51:17 Embser [2] - 38:23, 51:2 Embser-Herbert [2] 38:23, 51:2 emphasis [2] 51:20, 52:5 empirical [3] - 42:11, 43:14, 43:16 enactment [5] - 10:4, 34:1, 34:14, 53:20, 53:21 end [1] - 48:14 Engle [4] - 17:14, 17:23, 18:8, 18:14 Ensley [1] - 17:14 entire [1] - 10:5 entirely [1] - 9:16 entitled [2] - 10:18, 44:25 envisioning [1] 24:5 Equal [5] - 39:1, 39:2, 51:3, 51:4, 51:12
equipment [3] - 60:3, 60:4, 60:23 erroneous [1] - 28:7 erroneously [1] 45:3 error [1] - 28:11 especially [5] - 8:2, 11:14, 12:17, 29:18, 59:6 essentially [1] 49:21 established [1] 20:21 et [3] - 4:5, 10:17, 60:17 event [1] - 5:7 evidence [32] - 7:9, 7:16, 9:3, 11:12, 12:4, 12:15, 21:15, 22:20, 22:24, 23:17, 27:9, 28:4, 28:7, 28:23, 29:10, 33:14, 34:12, 39:7, 42:2, 42:11, 43:14, 43:16, 45:5, 53:13, 53:19, 54:14, 54:16, 55:25, 56:3, 56:7, 56:10 evidentiary [1] - 8:24 exact [3] - 44:2, 44:4, 44:19 exactly [3] - 29:13, 46:14, 48:13 examination [1] 11:9 examine [8] - 10:21, 10:23, 10:24, 10:25, 11:7, 11:8, 19:17, 26:20 example [13] - 10:2, 10:12, 22:22, 23:1, 27:17, 36:19, 37:17, 39:22, 41:23, 43:3, 43:5, 47:15, 60:5 examples [2] 31:17, 41:25 except [1] - 39:23 exception [1] - 6:7 excerpts [1] - 13:10 exclude [5] - 6:20, 12:6, 12:7, 53:12, 57:13 excluded [4] - 12:16, 22:10, 49:22, 57:17 exemption [1] 59:20 exemptions [1] 59:19 exercise [1] - 20:8 Exhibit [1] - 10:9 exhibit [17] - 6:24,
7:6, 7:14, 7:21, 8:4, 8:5, 8:7, 8:11, 11:3, 11:4, 11:5, 11:11, 11:13, 11:18, 11:21, 62:11 exhibits [16] - 6:16, 6:19, 6:21, 6:23, 6:25, 8:3, 8:9, 8:15, 8:17, 8:19, 9:8, 9:10, 10:1, 10:8, 11:14, 11:19 expanded [1] - 44:4 expect [1] - 62:20 expedition [1] - 6:17 experiences [1] 14:15 experiments [1] 52:3 expert [28] - 9:13, 9:23, 9:24, 10:13, 11:8, 11:17, 13:11, 13:16, 13:17, 13:18, 34:18, 35:18, 36:4, 36:6, 41:4, 42:22, 43:9, 43:12, 43:18, 44:15, 46:11, 46:13, 47:14, 48:13, 48:14, 48:23, 54:17, 59:10 expert's [1] - 35:8 experts [13] - 9:11, 10:9, 12:1, 34:19, 42:8, 42:10, 42:25, 46:10, 50:7, 54:13, 57:16, 58:2 explain [1] - 52:1 explicitly [1] - 54:8 expressed [1] 37:20 extent [12] - 6:12, 6:20, 8:16, 9:8, 11:18, 13:23, 14:5, 36:18, 37:10, 41:2, 45:3, 47:22 extremely [1] - 8:21 extrinsic [1] - 9:3
F
face [1] - 27:19 facial [42] - 9:2, 12:14, 23:13, 27:9, 27:14, 27:15, 27:17, 27:18, 27:25, 28:2, 28:3, 28:5, 32:8, 32:20, 33:12, 33:18, 33:20, 33:22, 33:23, 33:25, 34:7, 34:9, 34:12, 41:1, 41:3, 41:5, 41:7, 41:10, 41:11, 41:21, 41:22,
42:3, 42:16, 45:9, 45:16, 46:22, 47:23, 53:11, 53:19, 54:15 facially [2] - 46:6, 47:24 facilities [1] - 60:9 fact [25] - 11:10, 16:23, 20:6, 25:15, 27:22, 28:13, 33:20, 39:7, 41:3, 41:10, 41:22, 41:23, 42:15, 43:4, 46:3, 46:20, 46:23, 47:12, 49:18, 49:22, 53:24, 53:25, 57:17, 61:14 fact-finding [1] 41:23 factors [2] - 16:8, 22:8 facts [16] - 7:9, 7:15, 20:2, 27:16, 27:20, 39:11, 41:15, 47:16, 47:17, 49:17, 49:18, 53:4, 53:5, 54:16, 54:17, 54:18 factual [4] - 27:18, 28:2, 41:9, 44:5 factually [1] - 43:17 fail [1] - 31:3 failed [1] - 50:2 failure [3] - 14:20, 23:23, 48:6 fair [1] - 48:12 familiar [4] - 24:3, 60:18, 62:5, 62:6 family [1] - 5:10 far [2] - 4:21, 29:16 Federal [1] - 2:12 federal [1] - 35:17 Feldman [1] - 52:23 Feldman's [1] - 53:6 fellow [2] - 13:7, 13:25 female [1] - 40:10 fields [1] - 38:6 Fifth [1] - 2:6 file [1] - 7:7 filed [6] - 21:14, 29:24, 31:24, 31:25, 53:15, 58:9 final [2] - 54:23, 54:25 finally [5] - 12:23, 26:7, 26:12, 26:13, 28:12 findings [4] - 20:5, 46:2, 48:15, 53:25 fine [4] - 33:6, 60:12, 62:7, 62:8 finish [4] - 5:17,
22:16, 57:11, 59:18 finished [2] - 30:25, 50:8 finishing [1] - 5:23 first [12] - 6:20, 7:25, 14:20, 16:7, 20:14, 26:22, 37:24, 39:9, 47:22, 50:9, 55:15, 57:7 First [1] - 46:3 fits [1] - 39:3 five [11] - 16:8, 16:19, 22:8, 23:3, 24:7, 26:8, 30:10, 31:20, 32:9, 32:15, 57:7 focus [3] - 9:25, 27:5, 48:3 focused [3] - 20:16, 22:18, 44:3 focusing [1] - 23:12 follow [2] - 39:22, 55:10 following [4] - 5:2, 5:3, 5:10, 42:11 follows [1] - 31:6 footnote [1] - 18:7 Force [1] - 44:11 forces [1] - 40:5 foreign [4] - 14:15, 42:12, 42:20, 42:23 form [2] - 37:7, 37:9 former [11] - 12:18, 15:4, 24:25, 25:18, 27:4, 27:7, 27:8, 31:15, 36:21, 44:14, 52:16 former-Chief [1] 44:14 forms [1] - 12:2 forth [2] - 10:15, 62:12 fortunate [1] - 29:17 forward [1] - 20:7 foundation [1] - 52:9 four [9] - 4:25, 5:8, 5:16, 5:17, 29:12, 29:13, 30:1, 30:12, 57:7 frame [2] - 9:18, 36:25 framework [1] - 40:5 Frank [7] - 10:2, 10:3, 10:10, 35:21, 39:13, 50:10, 50:16 Frank's [3] - 36:16, 39:10, 47:18 frankly [3] - 29:5, 42:19, 49:20 free [1] - 61:14
Case Name/number
date
305
Case: 10-56634 10/25/2010 Page: 68 of 74
ID: 7521688 DktEntry: 9-14 5
Freeborne [3] - 2:12, 4:7, 49:6 FREEBORNE [25] 4:7, 5:5, 5:13, 5:18, 7:8, 7:13, 8:12, 8:23, 10:3, 17:20, 18:23, 19:4, 19:10, 19:23, 20:1, 20:18, 20:24, 21:2, 21:17, 40:11, 57:15, 57:21, 61:16, 62:20, 62:24 Friday [1] - 61:4 front [1] - 61:23 fruitless [1] - 25:9 full [1] - 5:21 furthering [1] - 51:10 furthers [1] - 33:4
G
gambled [1] - 30:16 GARDNER [7] 40:14, 40:18, 40:21, 44:8, 56:25, 60:7, 60:14 Gardner [9] - 2:13, 4:9, 40:18, 40:19, 54:22, 55:10, 55:21, 56:9, 56:13 Gates [1] - 4:8 gay [3] - 13:8, 13:25, 37:23 gays [1] - 14:16 general [5] - 15:2, 15:3, 16:14, 16:15, 46:25 generous [2] - 29:6, 30:20 given [8] - 13:14, 17:1, 26:15, 36:20, 37:8, 39:5, 40:5, 41:25 glean [1] - 35:8 gleaned [1] - 41:15 Goldman [4] - 43:20, 43:25, 44:1, 44:2 governing [1] - 54:3 Government [3] 39:25, 54:10, 55:23 government [57] 9:16, 9:18, 12:25, 14:17, 15:11, 15:22, 15:23, 17:7, 18:10, 18:19, 23:8, 23:10, 23:12, 29:6, 29:10, 29:12, 29:17, 29:22, 29:24, 30:4, 30:11, 30:12, 30:13, 30:16, 30:22, 31:6, 31:9,
31:10, 31:13, 31:18, 33:4, 33:19, 33:24, 34:18, 34:19, 38:25, 39:19, 44:23, 44:24, 45:5, 45:7, 45:9, 47:1, 49:22, 53:9, 53:10, 53:17, 54:2, 55:24, 56:3, 56:7, 56:8, 56:18, 56:19, 58:24 government's [9] 6:1, 15:5, 29:7, 29:18, 50:13, 53:7, 54:24, 56:14, 57:5 governmental [2] 23:11, 23:15 Grant [1] - 4:10 grant [1] - 56:15 grounds [2] - 11:9, 19:25 guess [3] - 17:1, 19:14, 26:3 Gulf [1] - 37:24
H
hairs [1] - 37:8 half [2] - 30:10, 47:12 hamstrung [1] 26:19 hand [1] - 41:25 happy [1] - 53:3 hard [3] - 30:22, 39:3, 62:2 hard-pressed [1] 39:3 hardly [1] - 32:10 harm [2] - 37:18, 37:25 harmless [2] - 14:21, 16:12 Hastings [2] - 38:19, 40:8 hear [1] - 57:3 heard [4] - 23:19, 42:20, 55:11, 61:21 hearing [7] - 16:6, 18:17, 18:19, 19:2, 20:14, 21:6, 25:6 hearings [2] - 36:24, 37:7 hearsay [4] - 10:17, 10:18, 10:20, 11:1 heart's [2] - 10:23, 10:24 heightened [1] 43:20 held [2] - 41:21, 46:21
helpful [1] - 47:23 Herbert [2] - 38:23, 51:2 herself [1] - 51:21 hesitant [1] - 37:14 high [1] - 60:16 highly [3] - 24:12, 26:23, 30:8 Hillman [4] - 38:19, 39:14, 40:8, 51:17 Hillman's [1] - 40:8 himself [1] - 59:4 historian [5] - 36:6, 51:19, 52:2, 52:4 historical [1] - 41:17 history [16] - 7:16, 7:19, 8:17, 10:4, 11:20, 20:11, 42:17, 43:19, 45:8, 46:8, 46:15, 51:20, 52:5, 53:12, 56:1 hit [1] - 53:8 holding [1] - 44:4 holds [1] - 39:21 home [1] - 61:10 homosexual [1] 10:4 homosexuals [1] 31:8 Honor [81] - 4:8, 4:18, 5:5, 5:18, 7:8, 8:12, 8:23, 17:20, 17:22, 18:5, 18:11, 18:16, 18:23, 19:23, 20:18, 21:10, 22:11, 23:20, 24:1, 24:4, 24:11, 25:13, 25:23, 26:2, 26:21, 26:25, 27:5, 28:12, 29:1, 29:4, 29:23, 30:8, 31:2, 31:16, 33:12, 33:24, 34:6, 35:22, 38:8, 40:11, 40:14, 40:21, 41:7, 41:14, 42:9, 42:15, 43:15, 44:9, 45:2, 45:6, 45:15, 46:8, 46:20, 50:3, 50:6, 50:15, 50:20, 51:3, 51:17, 52:10, 52:19, 52:23, 54:19, 54:23, 55:12, 56:2, 56:12, 56:23, 56:25, 57:15, 58:8, 58:20, 58:23, 59:13, 60:1, 60:8, 60:21, 61:16, 61:18, 62:20, 62:25 hook [1] - 60:5 hope [3] - 52:20, 59:18, 62:5
hoped [1] - 55:4 host [1] - 42:3 hours [2] - 17:12 house [1] - 24:18 Hunt [1] - 28:17
I
ideally [1] - 6:24 identification [5] 7:21, 8:2, 11:4, 11:6, 25:1 identified [5] - 11:10, 11:16, 22:8, 25:16, 31:8 identify [2] - 14:20, 21:7 identifying [1] - 61:9 identities [3] - 16:3, 16:16, 16:18 ignored [1] - 22:24 ignoring [1] - 54:10 imagine [2] - 58:11, 60:20 immediately [7] 9:13, 15:11, 25:14, 25:19, 34:1, 34:8 impact [3] - 38:24, 40:9, 51:6 impacting [1] - 51:8 impacts [1] - 51:15 impediments [1] 42:4 implemented [1] 53:22 implicates [1] - 31:8 implying [1] - 27:20 important [9] 15:22, 15:23, 21:20, 23:11, 23:14, 31:9, 33:4, 46:12, 55:20 impressive [1] 38:24 improper [1] - 33:22 in-house [1] - 24:18 inability [1] - 26:17 inadmissible [2] 34:22, 42:6 inapplicable [1] 41:1 inapposite [1] 41:14 inappropriate [3] 9:5, 48:15, 49:21 inclination [1] - 31:3 inclined [3] - 15:10, 16:7, 17:9 include [1] - 58:1 included [1] - 36:19
includes [1] - 36:20 including [3] - 37:22, 51:5, 61:9 incorrect [2] - 20:1, 20:10 indicated [2] - 29:11, 57:1 indisputable [1] 42:19 individual [8] - 12:3, 12:4, 28:6, 28:10, 28:19, 50:7, 54:16, 61:11 individuals [8] 24:8, 24:21, 25:7, 25:10, 25:16, 27:23, 32:10, 33:11 information [4] 14:12, 16:18, 25:25, 61:9 informed [1] - 53:1 inherently [1] - 47:24 initial [4] - 12:10, 24:24, 25:9, 48:23 initiative [1] - 26:8 insofar [4] - 9:19, 21:22, 35:6, 37:15 installed [1] - 60:24 instead [3] - 45:18, 51:9, 56:15 instructing [1] - 33:9 intelligently [1] 54:18 intend [7] - 9:7, 50:15, 55:25, 56:19, 60:7, 60:8, 62:17 intended [1] - 29:12 intent [4] - 9:15, 15:12, 21:19, 50:23 interest [8] - 6:17, 15:24, 15:25, 16:1, 31:10, 31:11, 31:12, 33:6 interests [2] - 33:5, 51:10 interject [1] - 21:8 interpretations [1] 19:11 interrogatory [2] 12:11, 16:15 interrupt [1] - 61:24 interview [1] - 47:20 introduce [2] - 7:18, 9:3 introduced [1] 31:16 intrude [1] - 31:7 intrusion [6] - 15:24, 15:25, 31:10, 31:11, 33:2, 33:5
Case Name/number
date
306
Case: 10-56634 10/25/2010 Page: 69 of 74
ID: 7521688 DktEntry: 9-14 6
invalidates [1] 37:12 invalidating [1] 41:9 invitation [3] - 56:8, 59:11, 59:15 involve [2] - 33:13, 45:25 involved [1] - 24:18 irrelevance [1] 22:19 irrelevant [10] 12:22, 13:3, 14:1, 14:4, 14:8, 14:18, 27:16, 28:6, 28:25, 49:23 issue [39] - 9:9, 15:18, 16:4, 17:16, 17:17, 17:22, 18:14, 19:4, 19:18, 20:14, 20:16, 20:17, 21:1, 21:2, 21:10, 21:17, 22:18, 23:7, 26:25, 27:2, 27:9, 27:10, 33:3, 36:10, 39:12, 40:1, 40:7, 45:13, 45:21, 48:4, 48:17, 49:23, 50:1, 50:12, 50:17, 57:8, 58:5, 59:5, 62:15 issued [2] - 19:8, 55:3 issues [19] - 4:22, 6:13, 8:25, 14:19, 18:19, 19:5, 19:7, 19:13, 22:16, 39:4, 48:6, 48:7, 49:19, 50:25, 52:5, 52:6, 59:25, 61:18, 61:21 IT [1] - 60:24 Item [1] - 4:3 items [1] - 60:15 itself [4] - 12:16, 25:10, 41:1, 45:23
43:11, 43:13, 43:23, 44:25, 53:23, 54:25, 56:15, 62:18 judiciary [1] - 43:23 July [2] - 4:17, 62:6 jump [2] - 9:25, 11:17 June [4] - 4:1, 15:1, 16:17, 26:1 jury [3] - 33:9, 61:24 Justice [2] - 44:14 JUSTICE [1] - 2:11 justified [2] - 14:21, 16:11 justify [1] - 16:2
K
Kahn [2] - 2:6, 4:14 keep [3] - 9:25, 11:15, 61:13 keeping [2] - 22:17, 35:16 keeps [2] - 23:12, 33:19 kind [2] - 59:11, 59:15 knowing [3] - 13:4, 13:7, 13:25 knowledge [2] 15:16, 39:6 known [2] - 15:16, 15:19 Korb [8] - 35:2, 35:7, 46:10, 47:8, 48:4, 48:8, 52:11, 52:13 Korb's [6] - 47:3, 47:4, 47:11, 47:12, 47:16, 48:3
L
lack [3] - 43:2, 44:3, 44:5 language [3] - 44:13, 44:18, 45:20 laptops [1] - 60:11 large [1] - 37:23 largely [3] - 6:8, 45:21, 49:23 larger [1] - 50:8 last [7] - 18:17, 18:19, 22:2, 38:16, 40:7, 49:20, 55:16 last-ditch [1] - 49:20 late [3] - 16:12, 18:20 latest [1] - 30:3 latter [1] - 24:8
J
Jamie [1] - 17:14 January [1] - 48:24 John [2] - 20:3, 21:4 joint [11] - 6:23, 7:6, 7:14, 7:21, 8:4, 8:6, 8:11, 8:19, 11:13, 11:21, 62:9 Josh [1] - 4:9 Joshua [1] - 2:13 Judge [1] - 21:6 judgment [11] 17:16, 20:12, 21:6,
law [13] - 22:9, 27:14, 31:21, 38:5, 46:2, 51:18, 53:24, 53:25, 54:3, 54:5, 54:9, 54:11, 61:14 Lawrence [9] - 31:9, 35:2, 41:14, 41:15, 46:1, 46:4, 53:18, 54:6 lawsuit [1] - 28:19 lawyer [1] - 51:18 lawyers [4] - 16:24, 30:11, 30:13, 61:23 lay [11] - 12:6, 12:8, 13:12, 14:21, 21:22, 22:2, 22:16, 22:21, 23:3, 30:10, 52:9 LCR [3] - 26:7, 28:13, 49:3 leading [1] - 53:15 learned [1] - 53:20 least [7] - 6:15, 9:19, 22:3, 29:12, 29:13, 29:25, 35:7 leave [1] - 14:3 lectern [1] - 55:14 left [1] - 16:21 legal [6] - 38:11, 42:4, 45:2, 52:19, 61:18, 61:19 legislation [2] 36:14, 45:16 legislative [16] 7:16, 7:19, 8:17, 9:20, 11:20, 12:16, 22:24, 22:25, 42:17, 43:19, 45:8, 46:8, 46:15, 53:12, 56:1 legislator [2] - 36:12, 45:14 legislator's [2] 36:11, 50:11 legislators [2] 37:10, 50:24 legitimate [3] 23:11, 23:14, 45:24 length [1] - 5:21 lesbian [2] - 14:17, 48:1 less [4] - 11:12, 14:19, 51:19, 59:4 letting [1] - 28:7 level [1] - 38:15 Lieutenant [2] - 20:8, 20:15 light [5] - 29:7, 29:18, 33:7, 56:6, 59:6 likely [1] - 53:1 limine [24] - 5:25,
6:2, 6:5, 6:8, 6:10, 6:13, 7:10, 7:12, 9:19, 9:21, 12:6, 14:9, 29:7, 29:9, 29:12, 29:14, 29:15, 29:21, 30:1, 43:6, 50:13, 62:16, 62:21 limited [3] - 7:4, 34:24, 39:24 limits [1] - 6:5 line [1] - 33:6 list [16] - 6:24, 7:6, 7:14, 7:21, 8:4, 8:7, 8:11, 11:3, 11:4, 11:5, 11:11, 11:13, 11:21, 26:12, 62:9, 62:11 listed [3] - 11:2, 12:10 lives [1] - 31:7 local [3] - 29:22, 30:3, 61:8 lodged [1] - 61:6 Log [3] - 4:4, 4:13, 20:4 logic [1] - 43:2 logical [1] - 41:17 logs [1] - 20:7 longer-developed [1] - 34:3 look [10] - 19:1, 20:5, 41:13, 44:17, 45:15, 46:15, 47:11, 47:16, 53:11 Look [2] - 26:9, 44:22 looked [2] - 36:10, 44:13 looking [1] - 46:8 looks [3] - 41:15, 42:16, 45:18 Los [1] - 2:7
M
MacCoun [6] - 38:4, 43:4, 43:7, 46:10, 58:5, 59:14 Maddow [1] - 47:20 Major [1] - 4:10 manner [1] - 31:8 March [1] - 49:12 marked [2] - 11:4, 11:6 marshals [1] - 59:6 Martin [1] - 17:15 Massachusetts [1] 2:14 material [2] - 28:25, 36:19
materials [1] - 10:16 matter [11] - 4:15, 4:17, 6:6, 8:18, 36:17, 41:3, 41:22, 42:15, 54:15, 57:10, 62:10 mean [13] - 8:19, 9:13, 9:20, 11:11, 11:17, 17:4, 19:19, 36:5, 39:1, 52:12, 54:4, 61:23, 62:14 means [3] - 55:23, 56:17 meantime [1] - 4:20 Meekins [9] - 17:15, 17:18, 17:21, 18:4, 18:8, 18:9, 18:17, 18:21, 18:24 meet [5] - 26:7, 26:10, 26:11, 29:11, 50:2 meeting [2] - 31:18, 52:25 meets [1] - 33:17 member [4] - 20:4, 21:7, 21:8, 52:14 members [11] - 9:4, 9:15, 14:17, 20:16, 28:19, 36:21, 36:24, 37:4, 40:10, 48:1 membership [1] 20:21 memorandum [2] 53:24, 61:13 men [2] - 32:1, 51:9 mention [1] - 7:13 mentioned [1] 48:20 mentions [1] - 54:12 merit [1] - 42:14 merits [6] - 5:19, 6:4, 12:15, 29:7, 30:5, 54:25 met [1] - 44:24 methodology [3] 38:20, 38:22, 51:23 methods [1] - 39:16 might [4] - 5:20, 11:5, 15:4, 22:5 militaries [4] - 14:15, 42:12, 42:20, 42:24 military [16] - 36:21, 37:19, 37:22, 37:25, 38:25, 40:2, 43:22, 44:6, 46:5, 51:19, 51:20, 51:21, 52:5, 52:6, 52:14 Miller [2] - 2:5, 4:14 mind [5] - 9:13, 10:7, 35:16, 36:25, 61:13 mischaracterizatio
Case Name/number
date
307
Case: 10-56634 10/25/2010 Page: 70 of 74
ID: 7521688 DktEntry: 9-14 7
n [1] - 35:11 mission [1] - 5:6 misstate [1] - 12:9 mistaken [1] - 25:15 moment [3] - 10:1, 22:12, 55:11 Monday [1] - 4:1 month [1] - 16:16 moral [1] - 14:15 morale [1] - 32:5 morning [1] - 61:1 most [8] - 6:10, 9:10, 9:16, 29:8, 36:8, 37:16, 37:19, 39:11 mostly [2] - 4:23, 62:22 motion [47] - 6:15, 6:16, 6:20, 7:10, 8:16, 9:21, 10:1, 11:17, 11:18, 11:20, 12:3, 12:6, 12:13, 13:11, 13:12, 14:5, 14:9, 17:9, 17:16, 18:2, 18:3, 18:5, 18:23, 19:19, 19:20, 20:12, 21:16, 21:22, 22:4, 23:15, 25:2, 27:12, 27:15, 34:17, 35:6, 35:9, 37:20, 43:6, 48:9, 48:20, 50:13, 53:6, 53:23, 54:24, 55:4, 57:13, 62:18 motions [24] - 5:25, 6:2, 6:5, 6:7, 6:10, 6:13, 7:12, 9:7, 9:19, 11:25, 12:5, 13:11, 23:16, 29:7, 29:9, 29:12, 29:13, 29:14, 29:15, 29:21, 30:1, 57:12, 62:15, 62:21 motivation [1] 36:13 motivations [2] - 9:3, 45:15 move [4] - 12:5, 21:20, 34:17, 57:11 moved [1] - 11:11 MR [64] - 4:7, 4:12, 4:18, 5:5, 5:13, 5:18, 7:8, 7:13, 8:12, 8:23, 10:3, 17:20, 17:22, 18:5, 18:10, 18:15, 18:23, 19:4, 19:10, 19:23, 20:1, 20:18, 20:24, 21:2, 21:17, 22:11, 22:14, 23:20, 24:1, 25:22, 26:2, 27:2, 29:4, 33:12, 33:19, 34:5, 35:22, 38:8, 40:11, 40:14,
40:18, 40:21, 44:8, 50:6, 52:18, 55:7, 55:16, 55:19, 56:25, 57:15, 57:21, 58:8, 58:15, 58:20, 58:23, 59:13, 60:1, 60:7, 60:14, 60:20, 61:16, 62:20, 62:24, 62:25 multiple [1] - 41:25 must [9] - 8:19, 15:22, 15:23, 15:24, 15:25, 31:9, 31:10, 31:11, 33:1
N
name [6] - 18:12, 21:7, 25:1, 37:1, 37:3, 38:4 named [1] - 21:8 names [6] - 14:25, 16:19, 25:23, 26:8, 26:13, 26:15 narrowly [1] - 44:3 Nathan [1] - 35:21 Nathaniel [2] - 35:22, 35:23 National [1] - 35:23 nature [1] - 9:2 necessarily [3] 10:23, 35:5, 37:12 necessary [7] - 6:15, 14:9, 15:25, 16:5, 31:11, 33:5, 43:21 neck [1] - 22:11 need [10] - 8:25, 17:25, 28:14, 43:17, 44:15, 45:10, 56:11, 56:13, 56:20, 57:10 needed [3] - 17:3, 28:23, 44:5 never [2] - 18:24, 59:5 New [2] - 46:12, 47:18 new [1] - 49:17 next [5] - 25:5, 25:24, 26:3, 49:5, 57:10 Nicholson [2] 20:15, 21:4 night [1] - 49:2 non-30(b)(6 [1] 23:21 nonjury [2] - 5:16, 11:22 normally [1] - 11:2 note [2] - 5:13, 5:18 notebooks [4] - 8:7,
8:8, 8:15, 62:11 noted [1] - 48:8 nothing [5] - 32:4, 32:7, 33:22, 47:13, 62:25 notice [1] - 15:9 notified [1] - 15:11 notion [2] - 42:5, 46:11 Number [2] - 4:3, 4:4 number [7] - 6:6, 6:25, 8:3, 29:9, 32:13, 37:21, 37:23 numbers [5] - 15:1, 16:19, 26:1, 61:10 numerous [1] 29:15 NW [1] - 2:14
O
obey [1] - 59:10 objected [1] - 39:20 objection [7] - 8:16, 8:18, 9:14, 11:19, 17:25, 22:19, 61:25 objectionable [1] 9:17 objections [8] - 8:22, 8:24, 8:25, 12:4, 37:16, 37:19, 38:2, 47:1 objective [2] - 23:11, 23:15 obligation [2] - 59:3, 59:22 obviously [8] - 7:14, 21:19, 24:3, 24:17, 24:25, 26:16, 57:16, 61:17 occupation [1] 59:19 OF [1] - 2:11 offer [4] - 42:8, 48:25, 49:4, 49:20 offered [3] - 7:18, 30:15, 43:7 offering [3] - 49:13, 51:11, 51:12 offers [1] - 38:11 once [7] - 52:9, 53:8, 54:10, 54:14, 56:12, 56:16, 56:18 one [32] - 5:1, 5:23, 6:7, 7:7, 7:10, 8:10, 10:7, 12:9, 14:20, 15:1, 16:23, 18:18, 21:5, 22:4, 27:17, 28:12, 28:16, 32:2,
33:15, 34:25, 36:22, 37:6, 39:20, 40:7, 41:10, 43:17, 45:1, 54:21, 56:25, 59:22, 60:14 ones [3] - 11:23, 33:24 oOo [1] - 4:2 open [1] - 14:16 opening [6] - 61:12, 61:15, 61:20, 62:4, 62:7 openings [1] - 58:1 operating [1] - 8:8 opining [1] - 36:18 opinion [29] - 12:2, 13:4, 13:24, 14:6, 35:10, 35:14, 35:17, 35:19, 36:4, 36:9, 36:16, 36:23, 37:7, 37:9, 37:11, 38:2, 39:21, 39:24, 43:9, 47:3, 47:4, 47:5, 47:16, 48:20, 48:21, 49:4, 49:14, 49:21, 52:20 opinions [11] 35:25, 37:13, 38:10, 38:11, 38:13, 38:22, 39:19, 48:11, 48:25, 50:1 opportunity [6] 30:14, 30:15, 30:24, 50:1, 56:3, 57:4 opposite [1] - 48:13 opposition [7] 15:14, 21:16, 25:2, 29:20, 52:24, 53:6, 53:23 order [16] - 6:2, 6:5, 14:20, 17:5, 18:18, 19:1, 19:8, 22:3, 23:25, 32:19, 49:25, 56:3, 56:18, 61:19, 62:21 ordinance [2] - 41:9, 41:20 organization [2] 14:8, 52:15 organizational [1] 13:2 original [1] - 49:1 otherwise [5] - 5:2, 12:11, 22:6, 34:25, 47:21 ought [2] - 6:14, 52:8 outside [3] - 7:16, 57:10, 58:3 overall [2] - 27:10, 39:5
overarching [2] 8:16, 22:19 overruled [2] - 8:18, 41:18 overworked [1] 59:7 own [2] - 60:5, 60:11
P
P.M [1] - 4:1 Page [2] - 3:2, 47:15 pages [1] - 57:8 paid [1] - 20:3 paper [1] - 6:17 papers [14] - 18:2, 20:25, 24:2, 26:25, 27:15, 30:6, 32:14, 32:25, 35:5, 40:25, 44:1, 52:24, 53:7, 53:15 parameters [1] - 39:4 Parker [3] - 2:13, 4:9, 40:17 part [9] - 6:13, 15:18, 18:17, 28:8, 31:25, 39:11, 50:12, 50:24, 55:5 participation [1] 28:19 particular [3] 51:20, 52:2, 61:17 particularly [5] 18:6, 26:22, 43:4, 43:22, 52:4 parties [7] - 7:24, 8:15, 15:2, 15:9, 18:3, 61:12, 61:21 parts [2] - 35:25, 50:17 party [4] - 10:16, 20:16, 27:19, 57:17 party's [1] - 15:16 passed [2] - 30:18, 53:21 past [2] - 29:19, 31:19 Patrick [1] - 4:10 pattern [1] - 30:3 paul [1] - 2:12 Paul [1] - 4:7 people [9] - 25:12, 26:17, 26:21, 31:20, 51:5, 53:20, 61:3 per [2] - 34:25, 48:22 percent [1] - 51:11 perhaps [8] - 4:23, 6:7, 36:17, 36:22, 51:5, 51:25, 52:7,
Case Name/number
date
308
Case: 10-56634 10/25/2010 Page: 71 of 74
ID: 7521688 DktEntry: 9-14 8
59:14 period [1] - 41:23 permitting [1] 28:21 person [4] - 12:22, 13:9, 59:1, 60:24 personal [8] - 13:1, 13:3, 13:4, 13:9, 13:23, 14:6, 31:7, 61:9 persons [3] - 15:3, 32:14, 61:11 persuaded [3] 21:24, 32:12, 59:9 persuasive [1] - 22:7 Philips [3] - 45:22, 54:4, 54:5 phone [3] - 15:1, 16:19, 26:1 pick [2] - 5:15, 5:17 pieces [1] - 12:4 place [1] - 5:14 plain [5] - 44:13, 44:17, 45:20, 48:12, 53:17 plaintiff [31] - 4:13, 15:8, 16:4, 16:13, 16:23, 16:25, 21:15, 22:22, 23:9, 23:13, 23:17, 24:14, 24:21, 25:9, 26:6, 27:13, 33:17, 39:17, 41:4, 41:23, 42:18, 42:22, 43:5, 43:11, 43:15, 44:21, 45:1, 45:11, 46:9, 48:10, 49:25 Plaintiff [1] - 2:3 plaintiff's [6] - 22:20, 26:4, 34:19, 38:21, 42:10, 42:25 plan [2] - 5:14, 5:24 point [20] - 15:11, 17:1, 21:5, 25:24, 26:3, 26:13, 26:22, 28:12, 30:1, 30:2, 34:14, 39:1, 42:25, 45:2, 45:11, 48:18, 51:2, 52:9, 55:19, 57:1 pointed [2] - 16:23, 21:5 points [4] - 15:15, 39:25, 40:15, 53:16 policies [1] - 51:8 Policy [1] - 38:6 policy [22] - 12:19, 15:23, 23:5, 23:10, 32:6, 32:22, 33:3, 33:4, 33:11, 34:20, 35:10, 37:18, 37:25,
38:24, 40:1, 40:4, 44:16, 44:17, 51:9, 51:13, 51:15 portions [2] - 50:9, 60:17 position [6] - 15:5, 30:17, 44:22, 53:17, 56:14, 58:17 possible [1] - 58:12 possibly [1] - 53:13 post [1] - 46:4 post-Lawrence [1] 46:4 postenactment [1] 14:13 potential [1] - 50:10 PowerPoints [1] 60:6 practical [1] - 8:18 practice [3] - 33:15, 53:22, 61:23 prayer [2] - 50:23, 50:25 pre [1] - 52:25 pre-deposition [1] 52:25 preclude [1] - 18:21 precluded [1] - 13:7 prefer [2] - 23:25, 40:15 preferable [1] 58:25 prejudice [2] - 12:3, 16:20 prejudiced [1] 26:17 prejudicial [3] 24:12, 26:23, 30:9 prepare [1] - 49:6 prepared [1] - 7:6 preparing [1] - 24:13 present [7] - 16:24, 24:16, 27:23, 29:10, 55:25, 56:3, 56:7 presentation [1] 33:14 presented [2] - 27:8, 54:18 presenting [4] 24:12, 27:4, 27:9, 45:5 presents [3] - 54:16, 61:16, 61:18 pressed [4] - 26:6, 26:11, 26:14, 39:3 presumably [3] 26:14, 28:24, 49:17 pretrial [7] - 4:16, 7:1, 26:7, 26:10, 48:22, 49:25, 53:23
prevent [1] - 23:17 primary [2] - 35:10, 35:14 principle [1] - 42:2 principles [1] - 39:16 privacy [10] - 13:9, 45:25, 48:21, 48:25, 49:4, 49:10, 49:11, 49:14, 49:19, 53:2 private [2] - 31:7, 41:20 privilege [8] - 9:20, 9:21, 36:11, 36:14, 45:14, 50:11, 50:18, 50:21 privileged [2] 36:17, 37:10 probative [1] - 47:2 problem [3] - 5:22, 21:13, 24:20 problems [1] - 5:2 proceed [2] - 6:23, 21:8 proceedings [1] 37:23 Proceedings........... ............................ [1] 3:3 process [1] - 22:25 produce [1] - 56:10 product [1] - 39:15 profession [1] 58:16 Professor [15] - 10:2, 10:10, 35:7, 36:16, 38:19, 38:23, 39:10, 39:13, 39:14, 50:10, 50:16, 52:11, 52:13, 52:22, 59:14 professor [5] - 10:3, 38:5, 40:8, 51:18, 58:16 proffer [3] - 15:14, 17:1, 22:2 proffering [1] - 22:23 proffers [1] - 22:3 Programs [1] - 2:12 prohibits [1] - 61:19 prong [1] - 47:22 pronouncing [1] 38:4 pronunciation [1] 38:18 proof [5] - 17:5, 42:9, 44:24, 44:25, 58:9 proper [1] - 9:2 properly [1] - 9:6 proposed [2] - 20:5, 53:24 proprietary [1] -
60:14 Protection [5] - 39:1, 39:2, 51:3, 51:4, 51:12 prove [3] - 23:9, 23:13, 31:13 provide [2] - 42:10, 50:22 provided [3] - 13:10, 15:1, 26:7 Public [1] - 38:6 purports [1] - 47:12 purpose [4] - 31:16, 39:21, 42:7, 48:12 purposes [10] - 7:22, 22:17, 23:6, 32:5, 33:10, 40:4, 45:18, 45:19, 51:13, 62:14 pursuant [1] - 31:21 pursue [1] - 29:12 push [1] - 5:20 put [4] - 15:9, 53:5, 55:13, 60:15 putting [1] - 23:17
Q
qualifications [2] 10:15, 38:24 qualified [2] - 39:8, 54:13 qualify [1] - 52:8 questioned [1] 36:13 questions [4] 13:13, 49:23, 50:19, 53:1 quick [1] - 57:1 quickly [3] - 35:3, 47:3, 48:22 quite [1] - 44:3 quote [3] - 28:17, 48:19, 49:16 quotes [1] - 14:3
R
Rachael [1] - 47:20 raise [6] - 6:13, 19:24, 19:25, 20:12, 21:10, 48:18 raised [17] - 9:6, 18:19, 19:20, 19:21, 19:25, 20:13, 20:17, 20:23, 20:24, 20:25, 21:17, 21:24, 35:5, 39:4, 40:7, 40:15 raising [1] - 25:8 RAND [5] - 43:7,
43:10, 58:14, 58:15, 58:19 rank [2] - 32:2, 32:3 rather [3] - 13:2, 17:6, 46:13 rational [2] - 34:21, 47:9 rationale [1] - 42:13 reached [2] - 42:21, 43:11 read [4] - 6:3, 36:15, 56:17, 61:13 readiness [3] 37:19, 38:1, 40:3 reading [3] - 10:8, 13:10, 48:12 ready [1] - 60:25 real [1] - 38:18 really [18] - 7:2, 7:3, 9:24, 9:25, 13:19, 13:21, 14:9, 23:16, 30:5, 35:11, 38:10, 38:19, 44:2, 51:9, 54:15, 55:20, 57:6 realtime [2] - 60:8, 60:11 reason [2] - 16:5, 35:15 reasonable [1] 30:20 reasoning [3] - 37:9, 37:13, 37:15 reasons [4] - 36:13, 45:22, 45:24, 55:8 rebuttal [1] - 49:21 recalling [1] - 5:4 recast [1] - 48:11 receive [1] - 59:11 receiving [1] - 28:9 recent [1] - 29:8 recently [1] - 58:11 recognized [2] 37:3, 52:14 record [8] - 12:16, 22:17, 28:24, 34:3, 34:10, 36:7, 37:15, 44:5 recycling [4] - 6:17, 6:18, 62:14 redacting [1] - 61:9 refer [1] - 18:6 referred [1] - 18:3 refuse [2] - 20:6 refutes [1] - 46:11 regard [2] - 25:3, 25:7 regarding [8] - 9:14, 12:18, 12:21, 14:12, 23:4, 27:24, 37:17, 38:12
Case Name/number
date
309
Case: 10-56634 10/25/2010 Page: 72 of 74
ID: 7521688 DktEntry: 9-14 9
regardless [2] 40:23, 46:1 regards [1] - 52:22 regularly [1] - 61:23 regulation [3] 44:10, 44:13, 44:18 regurgitation [1] 47:13 rehash [1] - 48:2 Rehnquist [2] 44:14 relate [1] - 9:10 related [3] - 21:10, 48:21, 51:16 relates [1] - 21:3 relation [2] - 25:8, 27:7 relationship [2] 13:8, 14:1 relatively [2] - 17:2, 32:15 relevance [3] - 8:6, 23:6, 47:1 relevant [8] - 7:17, 16:6, 22:21, 32:19, 32:24, 34:23, 42:24, 46:11 reliability [2] - 47:24, 48:4 reliable [2] - 34:23, 39:16 relied [5] - 10:15, 10:19, 11:8, 47:17 relief [1] - 28:18 relies [1] - 47:19 relieved [1] - 38:17 reluctant [1] - 59:17 rely [6] - 12:1, 24:24, 25:7, 25:10, 25:17, 52:4 relying [4] - 28:13, 40:2, 40:4, 45:7 remain [2] - 46:2, 58:3 remember [6] - 10:8, 19:22, 41:7, 44:1, 44:3, 57:7 remind [1] - 56:2 repeat [3] - 24:2, 30:6, 40:22 repeated [1] - 29:19 repeatedly [3] 27:13, 48:4, 48:8 repetitive [1] - 36:3 reply [4] - 18:6, 29:23, 43:6, 53:7 report [17] - 10:10, 22:25, 36:19, 37:6, 43:7, 43:10, 47:11, 47:13, 48:13, 48:19,
48:23, 49:1, 49:13, 49:16, 51:25, 52:22, 53:3 reported [1] - 37:4 representative [3] 13:3, 31:17, 57:17 Representative [2] 36:25, 37:1 represents [1] 12:14 Republicans [3] 4:4, 4:13, 20:4 request [2] - 17:21, 18:24 requested [1] - 28:18 requesting [1] - 56:4 required [5] - 8:6, 21:7, 28:20, 28:23, 39:5 requirement [2] 39:9, 39:15 requires [2] - 15:15, 28:18 research [6] - 10:14, 10:16, 10:19, 14:12, 59:8, 59:13 resisted [1] - 26:10 resolve [1] - 41:11 resolved [3] - 9:1, 19:2, 45:22 respect [8] - 6:16, 10:1, 17:18, 17:23, 20:18, 34:17, 45:13, 51:2 respects [1] - 6:3 response [4] - 29:24, 30:1, 30:2, 56:7 responses [2] 12:11, 16:15 responsible [1] 57:24 restrictions [1] 15:23 return [2] - 8:14, 62:12 revealed [1] - 45:20 reveals [3] - 37:15, 46:23, 48:13 reversed [1] - 46:18 review [2] - 15:10, 40:24 revised [5] - 48:19, 48:20, 49:13, 50:1, 52:22 rid [2] - 37:18, 37:25 riding [1] - 59:23 rights [1] - 31:8 rise [1] - 38:15 Riverside [1] - 4:1 Robert [1] - 38:4
room [1] - 2:15 routinely [1] - 43:23 rule [5] - 11:22, 11:24, 14:11, 30:3, 61:8 Rule [8] - 14:22, 15:15, 22:9, 34:25, 39:6, 49:15, 49:22, 49:24 ruled [9] - 17:20, 18:17, 18:19, 18:23, 18:24, 19:5, 19:6, 19:12, 27:11 Rules [1] - 34:22 rules [5] - 29:8, 29:19, 29:22, 35:17 ruling [9] - 14:17, 20:13, 20:23, 54:24, 54:25, 55:3, 55:4, 62:15, 62:17 Ryan [2] - 2:13, 4:9
S
sake [1] - 6:16 Salerno [1] - 46:23 satisfied [1] - 39:9 sausage [1] - 36:12 saw [3] - 21:13, 29:20, 31:24 schedule [3] - 17:5, 17:7, 48:22 scheduled [2] - 5:6, 20:14 scheduling [3] 4:24, 5:2, 5:6 Schiavelli [1] - 21:6 school [2] - 50:23, 50:25 School [1] - 38:6 scientific [2] - 43:21, 52:3 scientist [1] - 52:2 Scott [2] - 2:14, 4:9 screen [1] - 60:16 scrutiny [1] - 43:20 second [2] - 12:13, 39:15 Second [1] - 46:18 Secretary [2] - 4:8, 52:16 section [1] - 47:19 security [1] - 61:10 see [9] - 7:21, 7:22, 9:20, 29:23, 39:3, 47:9, 51:10, 55:14, 61:17 seek [3] - 9:2, 14:6, 42:8
seeking [3] - 12:7, 27:22, 34:18 seeks [2] - 14:5, 14:17 seem [5] - 17:11, 20:7, 27:24, 28:20, 50:23 seldom [1] - 34:9 sending [1] - 20:13 sense [3] - 44:17, 51:6, 51:7 separate [1] - 62:3 series [1] - 30:3 served [2] - 58:8, 58:11 service [6] - 10:4, 14:16, 40:10, 48:1, 52:13, 58:9 servicemember [2] 13:7, 13:25 servicemembers [8] - 12:18, 15:4, 24:25, 25:18, 27:4, 27:7, 27:8, 31:15 servicemen [1] 37:23 serving [1] - 38:25 set [8] - 4:17, 8:7, 8:9, 8:19, 15:22, 61:2, 62:4, 62:6 seven [5] - 16:24, 24:15, 30:11, 34:19, 35:2 several [3] - 31:19, 44:1, 50:6 sex [1] - 41:20 sexual [1] - 45:25 shifts [1] - 45:4 short [5] - 6:24, 17:2, 32:16, 61:12, 61:14 shorthand [1] 14:14 shortly [1] - 20:14 show [12] - 23:5, 31:17, 31:25, 33:16, 33:17, 34:10, 43:2, 49:25, 51:13, 55:23, 56:18, 56:19 showing [4] - 32:22, 32:24, 33:2, 33:18 side [11] - 5:1, 7:18, 7:20, 8:13, 11:7, 24:16, 57:24, 60:3, 60:19, 61:25, 62:19 sides [4] - 12:9, 22:13, 55:17, 57:4 sign [1] - 55:14 significantly [3] 15:24, 31:10, 33:4 similar [1] - 60:20
similarly [1] - 52:11 simple [1] - 20:7 simply [6] - 24:23, 27:5, 28:11, 40:25, 41:6, 48:15 SIMPSON [8] - 18:5, 22:11, 22:14, 23:20, 24:1, 25:22, 26:2, 27:2 Simpson [3] - 2:14, 4:9, 40:22 single [2] - 8:5, 8:9 situation [1] - 52:2 six [12] - 12:18, 12:23, 23:2, 23:3, 24:8, 27:4, 27:23, 28:9, 28:11, 31:20, 32:10, 32:15 slightly [1] - 16:18 slow [2] - 34:4, 55:13 slowly [1] - 55:19 smoothly [1] - 60:25 so.. [1] - 59:18 social [3] - 38:12, 52:1, 61:10 sociologist [3] 38:8, 38:9, 51:14 software [1] - 60:15 solely [2] - 32:21, 32:22 someone [1] - 13:17 sometimes [2] 13:19, 13:20 son [1] - 5:7 sorry [6] - 18:13, 18:25, 19:24, 25:20, 34:5, 40:19 sort [3] - 36:16, 48:10, 59:23 sorts [1] - 43:11 sources [1] - 10:16 specialized [1] - 39:6 specifically [1] 32:3 specified [1] - 21:14 specifies [1] - 31:6 spent [1] - 57:7 splitting [1] - 37:8 sponte [3] - 19:22, 20:13, 56:16 squarely [1] - 20:25 stage [2] - 62:4, 62:6 stand [3] - 9:24, 57:19, 57:22 standard [27] 15:10, 15:20, 15:21, 16:7, 22:18, 31:4, 31:5, 31:6, 31:14, 31:18, 40:24, 40:25, 44:23, 55:1, 55:2,
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date
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Case: 10-56634 10/25/2010 Page: 73 of 74
ID: 7521688 DktEntry: 9-14 10
55:5, 55:6, 55:12, 55:22, 56:5, 56:9, 56:16, 57:2, 57:4, 57:5, 57:6, 57:9 standard's [1] - 56:6 standing [18] - 5:19, 6:2, 6:5, 17:16, 18:18, 19:5, 19:8, 19:9, 19:12, 19:15, 19:16, 19:20, 19:21, 20:8, 20:17, 28:13, 28:16, 61:19 stare [1] - 41:19 start [3] - 4:19, 4:21, 24:6 started [1] - 30:5 state [4] - 4:6, 35:9, 35:18, 37:11 statement [5] - 15:2, 20:2, 61:13, 61:15, 61:20 statements [2] 36:23, 61:20 STATES [1] - 2:11 States [4] - 4:5, 4:8, 30:9, 39:22 states [1] - 23:10 stature [1] - 52:13 statute [21] - 7:16, 12:15, 12:22, 27:19, 27:20, 27:24, 28:5, 28:10, 28:15, 33:14, 34:1, 34:15, 41:6, 45:7, 45:19, 45:20, 46:8, 46:16, 53:20, 53:21 stay [3] - 36:12, 57:8, 57:25 step [1] - 41:10 stick [1] - 22:11 still [5] - 8:6, 8:25, 16:21, 20:6, 36:10 stipulating [1] - 8:20 stood [1] - 37:1 stories [4] - 27:23, 28:6, 28:10, 31:22 straight [1] - 11:15 Street [1] - 2:6 strike [1] - 18:24 struck [1] - 48:21 studies [1] - 43:21 study [1] - 33:24 sua [3] - 19:22, 20:13, 56:16 subconclusions [1] - 37:22 subject [4] - 6:6, 13:24, 41:22, 50:8 subjective [2] - 9:3, 9:15
subjects [2] - 7:10, 51:16 submit [4] - 24:4, 24:11, 26:21, 29:1 submits [1] - 49:13 submitted [5] 17:15, 43:8, 48:23, 52:24, 62:9 subparts [1] - 29:16 subpoena [5] - 58:9, 58:11, 58:12, 59:11 substantially [2] 14:21, 16:11 substantiate [1] 20:8 succeeding [1] 33:18 suffice [1] - 15:5 sufficient [2] - 25:4, 39:11 suggest [3] - 27:5, 30:9, 51:24 suggesting [1] 46:14 Suite [1] - 2:7 sully [1] - 28:24 summary [8] - 17:16, 20:12, 21:6, 44:25, 53:23, 54:24, 56:15, 62:18 supervisors [1] 32:4 supplement [3] 15:6, 49:16, 50:21 supplemental [4] 44:21, 45:12, 54:1, 56:4 supplementing [1] 53:3 support [3] - 41:5, 42:11, 51:12 supports [1] - 37:24 supposed [1] - 6:22 supposedly [1] 51:10 Supreme [4] - 28:17, 41:8, 43:21, 44:12 surprise [1] - 16:20 survives [1] - 56:5 susceptible [1] 19:10 suspect [1] - 47:24 suspended [1] 37:22 synthesizes [1] 54:17
T
table [2] - 30:12, 45:21 task [1] - 38:12 tech [1] - 60:16 telephone [1] - 61:10 tend [1] - 58:12 tension [1] - 45:25 tentative [2] - 20:13, 20:22 term [2] - 14:15, 51:5 terms [9] - 16:14, 16:16, 17:5, 33:10, 41:9, 53:20, 58:7, 58:18, 59:3 test [1] - 43:20 testified [3] - 46:10, 49:3, 49:18 testify [19] - 10:3, 10:13, 12:18, 13:22, 15:4, 16:9, 17:6, 23:2, 23:4, 35:15, 35:20, 36:4, 36:7, 37:13, 37:14, 52:6, 58:7, 58:18, 58:25 testifying [6] - 10:12, 18:22, 40:9, 51:14, 51:18, 51:19 testimony [75] 4:25, 9:10, 9:13, 9:14, 9:17, 12:7, 12:17, 12:21, 12:23, 13:1, 13:2, 13:6, 13:14, 14:5, 14:6, 15:15, 16:5, 16:14, 17:2, 21:25, 22:4, 22:7, 22:10, 23:6, 24:7, 24:24, 25:18, 27:4, 27:8, 27:23, 28:14, 28:20, 28:22, 31:15, 32:16, 32:17, 32:19, 32:20, 33:1, 33:7, 34:20, 34:22, 35:8, 36:20, 36:22, 37:7, 37:17, 39:3, 39:15, 39:20, 40:5, 40:8, 41:4, 41:9, 42:4, 42:6, 42:8, 42:20, 42:21, 42:22, 43:11, 43:12, 44:15, 46:11, 46:13, 47:21, 50:9, 50:11, 50:17, 51:21, 57:14, 58:2, 58:4 Texas [1] - 41:19 text [1] - 46:15 THE [61] - 4:3, 4:11, 4:15, 4:19, 5:12, 5:15, 5:22, 7:11, 8:1, 8:14,
9:6, 10:7, 18:2, 18:9, 18:12, 18:25, 19:8, 19:14, 19:24, 20:10, 20:22, 21:1, 21:12, 21:19, 22:13, 22:15, 23:25, 25:20, 25:25, 27:1, 29:2, 32:12, 33:16, 34:4, 34:16, 35:23, 38:9, 40:12, 40:17, 40:19, 43:25, 50:4, 52:16, 55:2, 55:13, 55:17, 56:24, 57:3, 57:20, 57:23, 58:14, 58:17, 58:21, 58:24, 59:16, 60:2, 60:12, 60:18, 60:22, 61:22, 62:22 themselves [1] 31:1 theory [2] - 10:5, 10:6 therefore [2] - 42:12, 53:13 thinking [2] - 10:11, 24:9 third [1] - 10:16 third-party [1] 10:16 three [12] - 7:11, 12:25, 17:12, 17:14, 23:15, 24:16, 29:14, 29:15, 29:16, 29:21, 29:23, 49:12 throughout [2] 53:14, 53:16 ties [1] - 27:8 timing [2] - 21:1, 21:2 today [7] - 20:3, 30:11, 31:18, 34:21, 55:4, 56:18, 58:10 tomorrow [1] - 59:18 took [3] - 24:23, 26:8, 44:22 topic [1] - 34:25 touched [1] - 45:14 traditional [1] - 52:4 trained [1] - 36:6 transcript [2] 13:10, 35:11 transmit [1] - 60:9 treated [1] - 30:23 treatment [1] - 48:1 triable [3] - 19:5, 19:7, 19:12 trial [44] - 4:17, 4:19, 4:21, 4:24, 5:16, 6:8, 6:9, 6:14, 6:19, 7:25, 11:15, 11:22, 13:22, 14:9, 14:18, 14:24,
16:17, 16:19, 17:6, 24:6, 24:8, 24:10, 24:13, 26:20, 26:22, 28:22, 31:14, 38:16, 41:16, 45:11, 52:8, 55:14, 55:25, 56:11, 56:13, 56:20, 58:9, 59:18, 61:4, 61:7, 61:22, 61:24 Trial [1] - 60:12 TrialDirector [3] 60:7, 60:10, 60:14 trials [1] - 34:12 tried [1] - 33:8 trier [1] - 39:7 trip [1] - 5:6 troop [1] - 32:5 troubling [1] - 36:8 true [6] - 25:13, 29:18, 38:15, 43:14, 43:17, 59:1 try [2] - 11:22, 26:23 trying [10] - 11:15, 23:9, 26:21, 33:20, 34:6, 36:11, 44:1, 44:3, 53:9, 53:10 turning [1] - 30:5 twice [1] - 54:5 two [14] - 5:12, 5:23, 11:25, 12:5, 13:11, 16:21, 17:12, 24:15, 27:6, 38:6, 38:7, 43:17, 46:9, 54:12 typed [1] - 35:23
U
UC [1] - 58:16 ultimate [1] - 35:18 ultimately [4] 40:24, 42:21, 42:24, 46:17 unavailable [4] 58:6, 59:2, 59:4, 59:9 unclear [1] - 19:11 unconstitutional [7] - 27:21, 31:21, 32:23, 33:17, 35:10, 41:21, 47:7 uncontroverted [1] 20:2 under [17] - 8:8, 12:19, 14:21, 22:9, 34:22, 34:24, 35:16, 39:6, 39:15, 43:20, 46:23, 47:1, 47:22, 48:17, 49:22, 58:6 underlies [1] - 38:22 undermined [1] -
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42:14 undermining [1] 32:8 underpinnings [1] 41:17 understood [1] 55:21 unfairly [1] - 30:23 unforeseen [1] 4:20 unique [1] - 46:5 unit [9] - 32:5, 38:12, 40:3, 42:12, 42:14, 43:3, 43:9, 43:13, 45:25 United [4] - 4:5, 4:8, 30:9, 39:22 uNITED [1] - 2:11 unnecessary [3] 6:9, 6:11 unwilling [1] - 7:20 up [21] - 5:15, 5:25, 6:20, 8:6, 14:19, 20:20, 28:24, 29:16, 33:20, 49:11, 52:8, 53:15, 55:10, 57:11, 59:5, 60:5, 60:15, 60:17, 61:2, 61:4, 62:10 upheld [1] - 34:12 useful [1] - 54:18 utilized [1] - 41:5
W
waiting [2] - 54:23, 57:10 waive [3] - 62:3, 62:7 waivers [1] - 14:15 walk [1] - 8:23 wants [4] - 42:22, 43:12, 43:15, 48:10 War [1] - 37:24 Washington [1] 2:15 waste [1] - 28:21 ways [2] - 23:9, 53:10 weak [1] - 19:17 week [10] - 4:25, 5:2, 5:3, 5:10, 5:17, 26:22, 55:5, 62:18, 62:22, 62:23 weeks [5] - 5:12, 5:23, 16:19, 16:21, 49:12 weighed [1] - 42:21 weighing [1] - 48:7 weight [4] - 37:17, 37:20, 38:3, 38:14 West [1] - 2:6 whatsoever [1] 48:24 whichever [1] 23:25 while.. [1] - 57:20 White [1] - 4:12 WHITE [1] - 2:4 whole [2] - 27:9, 47:12 win [1] - 56:20 wisdom [6] - 40:1, 42:6, 43:23, 48:5, 48:7, 48:9 wish [2] - 19:15, 23:19 witness [24] - 9:24, 13:2, 13:11, 13:12, 13:15, 13:16, 13:17, 13:21, 14:7, 18:1, 34:25, 39:21, 40:2, 57:19, 57:20, 57:21, 58:14, 58:25, 59:2, 59:10, 59:16, 59:25, 62:9 witness's [2] - 13:8, 15:14 witnesses [41] 4:23, 8:7, 12:6, 12:8, 12:25, 13:24, 14:14, 14:21, 14:24, 15:9, 15:12, 15:16, 16:9,
V
vacation [2] - 5:10, 5:24 vacuum [2] - 27:18, 28:3 variety [1] - 19:11 various [1] - 38:11 vehicle [1] - 59:23 versus [1] - 4:4 videotaped [1] 58:22 view [1] - 18:16 viewpoint [1] - 51:15 views [1] - 13:3 violate [2] - 6:2, 50:21 violation [4] - 29:8, 29:21, 49:24, 50:18 violations [2] 29:19, 30:4 volunteered [1] 13:14 vote [1] - 36:14
17:10, 17:14, 19:16, 21:23, 22:2, 22:16, 22:21, 23:2, 23:3, 23:21, 23:24, 26:8, 26:13, 26:20, 30:10, 34:18, 34:20, 35:2, 39:8, 39:12, 46:13, 47:14, 48:14, 57:13, 57:17, 57:25, 58:3, 59:17 witnesses' [2] - 16:3, 16:5 Witt [33] - 15:10, 15:20, 15:21, 16:7, 22:18, 31:4, 31:5, 31:14, 31:18, 40:25, 41:1, 44:23, 45:3, 45:23, 54:1, 54:8, 54:9, 54:11, 55:1, 55:2, 55:5, 55:6, 55:12, 55:22, 56:5, 56:6, 56:9, 56:16, 57:2, 57:4, 57:5, 57:6, 57:9 women [8] - 32:1, 37:23, 38:25, 51:8, 51:11, 51:15, 51:20, 52:5 WOODS [24] - 4:12, 4:18, 17:22, 18:10, 18:15, 29:4, 33:12, 33:19, 34:5, 35:22, 38:8, 50:6, 52:18, 55:7, 55:16, 55:19, 58:8, 58:15, 58:20, 58:23, 59:13, 60:1, 60:20, 62:25 Woods [4] - 2:5, 4:12, 29:3, 50:5 word [1] - 36:12 wording [2] - 44:2, 44:4 words [3] - 23:8, 41:18, 53:10 workable [1] - 17:13 works [3] - 34:9, 58:14, 60:25 worthy [1] - 56:21 written [2] - 55:3, 62:15
47:18
Y
Yamika [2] - 44:7, 44:8 year [2] - 21:14, 48:24 years [2] - 31:19, 34:14 York [2] - 46:12,
Case Name/number
date
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Case: 10-56634 10/25/2010 Page: 1 of 6
ID: 7521688 DktEntry: 9-15
PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-08425-VAP (Ex) Title: Date: July 1, 2010
LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity ================================================================ PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER GRANTING IN PART AND DENYING DEFENDANTS' MOTIONS IN LIMINE (IN CHAMBERS) [Motions filed June 18, 2010 (Docket Nos. 178, 179 & 180)]
Defendants United States of America and Secretary of Defense Robert Gates ("Defendants") filed three Motions in Limine on June 18, 2010: "To Exclude Expert Testimony," "To Exclude Certain of Plaintiff's Proposed Exhibits," and "To Exclude Lay Witness Testimony." Plaintiff Log Cabin Republicans ("Plaintiff") filed timely opposition to each motion, and Defendants filed replies. Having reviewed and considered all papers filed in support of and in opposition to the motions, and having heard the arguments advanced by counsel at the hearing conducted at the MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md____ Page 1
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Case 2:04-cv-08425-VAP -E Document 210 ID: 7521688 DktEntry:2 of 6 Case: 10-56634 10/25/2010 Page: 2 of 6 Filed 07/01/10 Page 9-15
CV 04-08425-VAP (Ex) LOG CABIN REPUBLICANS, etc. v UNITED STATES OF AMERICA , et al. MINUTE ORDER of July 1, 2010
Pretrial Conference on June 28, 2010, the Court hereby rules on each motion as follows.1 Motion in Limine to Exclude Expert Testimony Defendants seek to exclude all testimony from the seven persons designated by Plaintiff to testify as expert witnesses at trial. Defendants argue Federal Rules of Evidence 402 and 702 bar the proposed testimony, as it is neither relevant nor reliable. In the alternative, Defendants contend Plaintiff should only be allowed to call one expert witness per topic as the proposed testimony will otherwise be unnecessarily cumulative. Defendants' argument is based in part on their mischaracterization of the witnesses' prior testimony in this case. For example, they argue that "[t]he primary opinion Dr Korb offers is that DADT is unconstitutional." (Mot. at 2.) Although defense counsel asked Dr. Korb his opinion regarding the constitutionality of the statute, he did not testify that he was retained in order to opine on this subject. Federal Rule of Evidence 702 provides in relevant part that "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert may testify if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." (Emphasis added.) All seven of Plaintiff's proposed expert witnesses are qualified to offer their respective opinions. At least two have testified before other federal courts on similar, if not identical, subjects. All have demonstrated their expertise through research, publication, experience, employment -- including military or government service --, or some combination of these. Defendants' objections to the methods employed by the proposed witnesses are not well-taken either. Qualified expert witnesses with training in the fields of law,
Defendants have violated the Court's Standing Order Initials of Deputy Clerk ___md____ Page 2
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sociology and military history are not precluded from testifying simply because the methodology employed is not that used by experts in other fields, such as the "hard sciences." Finally, Defendants contend that no expert testimony should be permitted in this trial because Plaintiff's challenge to DADT is a facial one. It cites Goldman v. Weinberger, 475 U.S. 503 (1986), in support of this contention, but in that case, expert testimony on the desirability of religious exceptions to the military dress code. Id. at 509. This argument also overlooks the clear authority of Lawrence v. Texas, 539 U.S. 558 (2003), where the Supreme Court went beyond the legislative history of the Texas statute under examination. As stated on the record during the hearing on the Motion, an expert's report is not admissible by the proponent of the evidence, but the witness may testify about the basis for his or her opinions, and on cross-examination any of the material upon which the opinions were based may be admitted for impeachment purposes. The Court denies the request for an order excluding any testimony from the designated expert witnesses, and the request for a finding that the proposed testimony is unduly cumulative. Motion in Limine to Exclude Lay Witnesses Defendants seek to bar the testimony of 12 of the 14 lay witnesses Plaintiff has designated to testify at the court trial in this case. First, Defendants contend that eight of the witness were not revealed in the initial disclosures or in responses to Defendants' interrogatories. 2 In considering whether the failure to disclose witnesses who are expected to testify at trial, the Court must determine whether such failure was "substantially justified or harmless."
Nine law witnesses are identified in Defendants' motion as Mike Almy, Jenny Kopfstein, Anthony Loverde, Joseph C. Rocha, Stephen Vossler, Alexander Nicholson, Craig Engle, Jamie Ensley and C. Martin Meekins. The parties informed the Court they have resolved their dispute regarding the testimony of Mr. Engle and Plaintiff will not be calling him as a witness in this case. MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md____ Page 3
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Fed. R. Civ. Proc. 39(c)(1). Applying the five factors generally used to make that determination with the facts presented here, the Court finds the balance weighs in favor the Plaintiff. For the reasons set forth on the record at the hearing on this Motion, the Court finds the failure to disclose the witnesses earlier was substantially justified. Defendants have known of Plaintiff's attempted notification since May 20, 2010, at the latest. Plaintiff must make the witnesses available for deposition before the date of trial. Defendants also object to the introduction of testimony at trial from any of their three witnesses designated under (Fed. R. Civ. Procedure 30(b)(3). To the extent that such a witness would consist of the witness's personal opinion or anecdotal testimony regarding their working relations with service members who are, or are suspected to be, homosexual, that testimony appears to be inadmissible in this case. To the extent this Motion is based on Defendants' contention that such evidence is barred in a case mounting a facial challenge to a statute or regulation, that argument is rejected for the reasons set forth on the record at the hearing and for the reasons set forth above. Motion in Limine to Exclude "Certain of Plaintiff's Exhibits" Finally, Defendants move to exclude (1) "documents that were created by groups or individuals who actively advocate for the repeal of DADT"; (2) "articles from newspapers, magazines, and blogs, unofficial transcripts from television programs," etc.; (3) "documents created by government contractors" (4) "documents not previously disclosed to defendants and which, in large part, relate to the particular facts and circumstances of individual service members who were discharged under DADT"; and "the remainder of [Plaintiff's] exhibits, such as, among other things, LCRs experts reports, email exchanges by non-parties, non-party letters, articles, and other documents that do not fall within the other four categories." (Mot. at 3.) In other words, although entitled as one to exclude "certain" exhibits, Defendants actually move to exclude all of Plaintiff's proposed trial exhibits. MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md____ Page 4
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As noted above, expert reports and the underlying supporting materials are not admissible by the party calling that witness, but may (and usually should) be marked for identification for purposes of reference at trial, particularly for purposes of crossexamination. Moreover, as also stated above, the Court also rejects Defendants' argument that the facial nature of the Plaintiff's challenge makes all evidence other than the legislative history of the statute inadmissible. To the extent Defendants' Motion challenges such materials as polling materials, those objections may be well-taken and should be raised during this nonjury trial. The objections directed to the nondisclosure of exhibits designated by Plaintiff appear to be meritless, for the most part. As Plaintiff correctly points out, most of those exhibits were published by, prepared by, or in the custody of the Government, which cannot fairly complain of their admission at trial. To the extent the defense is objecting on the basis of relevance, those objections will be taken up during this bench trial. For these reasons and those set forth on the record during the hearing on this Motion, the Court DENIES the Motion. IT IS SO ORDERED.
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CV 04-08425-VAP (Ex) LOG CABIN REPUBLICANS,etc. v UNITED STATES OF AMERICA , et al. MINUTE ORDER of July 1, 2010
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1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) non-profit corporation, ) 12 ) Plaintiff, ) 13 ) ) v. 14 ) UNITED STATES OF AMERICA ) 15 and ROBERT M. GATES, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ ) 18 19 Case No. CV 04-08425-VAP (Ex) [Motion filed on March 29, 2010] ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Log Cabin Republicans ("Plaintiff" or "LCR"), a non-
20 profit corporation whose membership includes current, 21 retired, and former members of the U.S. armed forces who 22 are homosexual, challenges as "restrictive, punitive, . . 23 . discriminatory," and unconstitutional the "Don't Ask 24 Don't Tell" policy ("DADT Policy") of Defendants United 25 States of America and Robert M. Gates ("Defendants"), 26 including both the statute codified at 10 U.S.C. section 27 654 and the implementing instructions appearing at 28 Department of Defense Instructions ("DoDI"
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1 2 or "implementing instructions") 1332.14, 1332.30, and 3 1304.26. 4 judgment. 5 6 7 I. BACKGROUND The Court's May 27, 2010 Order recites the statutory Defendants now move for entry of summary
8 and regulatory scheme comprising the DADT Policy, as well 9 as the procedural history of this Motion. 10 11 Defendants' Motion for Summary Judgment ("Motion"),
12 filed March 29, 2010, challenged Plaintiff's standing to 13 bring this action and also attacked the merits of 14 Plaintiff's claims. After a timely Opposition and Reply 15 were filed,1 each side filed supplemental briefing 16 addressing the question of Plaintiff's standing. 17 18 On May 27, 2010, the Court issued its Order Denying
19 in Part Defendants' Motion to the extent it challenged 20 Plaintiff's standing to bring this action. The Court
21 granted the parties "leave to file supplemental briefs 22 for the sole purpose of discussing application of the 23 24 25 Defendants also filed objections to the evidence submitted by Plaintiff in opposition to the Motion. For 27 the reasons set forth below, the Court does not rely on this evidence in deciding the Motion, and thus need not 28 address Defendants' objections. 26
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1
1 Witt2 standard to Plaintiff's substantive due process 2 claim." (Docket No. 170 at 26:2627:2.) Each side's
3 Supplemental Brief was filed timely.
Having denied
4 Defendants' Motion to the extent it was based on 5 Plaintiff's standing, the Court now addresses the merits 6 of Defendants' Motion. 7 8 9 II. LEGAL STANDARD A motion for summary judgment shall be granted when
10 there is no genuine issue as to any material fact and the 11 moving party is entitled to judgment as a matter of law. 12 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 13 477 U.S. 242, 24748 (1986). The moving party must show
14 that "under the governing law, there can be but one 15 reasonable conclusion as to the verdict." 16 U.S. at 250. 17 18 Generally, the burden is on the moving party to Anderson, 477
19 demonstrate that it is entitled to summary judgment. 20 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 21 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 22 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears
23 the initial burden of identifying the elements of the 24 claim or defense and evidence that it believes 25 26 27 Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 28 2008).
3 321
2
1 demonstrates the absence of an issue of material fact. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 3 4 Where the non-moving party has the burden at trial,
5 however, the moving party need not produce evidence 6 negating or disproving every essential element of the 7 non-moving party's case. Id. at 325. Instead, the
8 moving party's burden is met by pointing out that there 9 is an absence of evidence supporting the non-moving 10 party's case. Id. The burden then shifts to the non-
11 moving party to show that there is a genuine issue of 12 material fact that must be resolved at trial. Fed. R.
13 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 14 U.S. at 256. The non-moving party must make an
15 affirmative showing on all matters placed in issue by the 16 motion as to which it has the burden of proof at trial. 17 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See
18 also William W. Schwarzer, A. Wallace Tashima & James M. 19 Wagstaffe, Federal Civil Procedure Before Trial 14:144 20 (2010). A defendant has the burden of proof at trial Payan v.
21 with respect to any affirmative defense.
22 Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 23 (9th Cir. 2007). 24 25 A genuine issue of material fact will exist "if the
26 evidence is such that a reasonable jury could return a 27 verdict for the nonmoving party." 28
4 322
Anderson, 477 U.S. at
1 248.
In ruling on a motion for summary judgment, the
2 Court construes the evidence in the light most favorable 3 to the non-moving party. Barlow v. Ground, 943 F.2d
4 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. 5 Elec. Contractors Ass'n, 809 F.2d 626, 63031 (9th Cir. 6 1987). 7 8 9 III. DISCUSSION In its June 9, 2009 Order Granting in Part and
10 Denying in Part Defendants' Motion to Dismiss Case 11 ("Motion to Dismiss Order" or "June 9, 2009 Order"), the 12 Court denied Defendants' motion to dismiss as to 13 Plaintiff's substantive due process claim and its First 14 Amendment claim to the extent it is based on Defendants' 15 use of service members' statements for purposes other 16 than admissions of propensity to engage in homosexual 17 acts, and granted Defendants' motion to dismiss as to 18 Plaintiff's equal protection claim and its First 19 Amendment claim to the extent it is based on Defendants' 20 use of statements as admissions. Thus, Plaintiff's
21 remaining claims allege violation of substantive due 22 process and of the First Amendment. Defendants argue
23 they are entitled to summary judgment on each of these 24 claims. 25 26 27 28

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The Court addresses each separately.
1 A. 2 3
Substantive Due Process 1. Standard of Review
Before reaching the merits of Defendants' Motion, the
4 Court must first resolve the standard of review 5 applicable to the DADT Policy, which the parties dispute. 6 Plaintiff maintains the applicable standard of review is 7 that announced by the Ninth Circuit in Witt, i.e., in 8 order for the DADT Policy to survive constitutional 9 scrutiny, Defendants "must advance an important 10 governmental interest, the intrusion must significantly 11 further that interest, and the intrusion must be 12 necessary to further that interest." 13 14 Defendants argue the DADT Policy need only survive Id. at 819.
15 rational basis review, i.e., it is "rationally related to 16 a legitimate governmental purpose." Kadrmas v. Dickinson
17 Pub. Sch., 487 U.S. 450, 458 (1988); Matsuda v. City & 18 County of Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008). 19 For the reasons discussed below, the Court concludes that 20 the Witt standard of review applies to Plaintiff's 21 challenge to the DADT Policy. 22 23 Generally, courts apply rational basis review to
24 state actions which "neither utilize[] a suspect 25 classification nor draw[] distinctions among individuals 26 that implicate fundamental rights." Matsuda, 512 F.3d at
27 1156 (quoting United States v. Salerno, 481 U.S. 739, 746 28

6 324
1 (1987)).
Conversely, courts employ a heightened standard
2 of review where state actions implicate fundamental 3 rights. 4 5 In Witt, the Ninth Circuit recognized that the DADT
6 Policy implicates the fundamental rights recognized by 7 the Supreme Court in Lawrence v. Texas, 539 U.S. 558 8 (2003). See Witt, 527 F.3d at 819. While declining to
9 place its standard of review within the traditional 10 framework of rational basis review, intermediate 11 scrutiny, and strict scrutiny, and expressly declining to 12 apply strict scrutiny, the Ninth Circuit held the DADT 13 Policy constitutes an intrusion "upon the personal and 14 private lives of homosexuals, in a manner that implicates 15 the rights identified in Lawrence," and is subject to 16 heightened scrutiny. 17 18 Defendants attempt to avoid application of a Id.
19 heightened scrutiny standard by arguing that the Witt 20 court limited application of its standard to as-applied 21 challenges. (Defs.' Supp. Br. at 7:169:6.) Although
22 the Witt court stated that "this heightened scrutiny 23 analysis is as-applied rather than facial," see Witt, 527 24 F.3d at 819, it did not address what standard of review 25 would apply to a facial challenge to the DADT Policy. 26 27 28
7 325
Defendants further rely on authority reflecting the
2 "disfavored" status of facial challenges, including 3 Washington State Grange v. Washington State Republican 4 Party, 552 U.S. 442, 450 (2008). This authority,
5 however, does not establish that the standard of review 6 depends on the nature of the challenge.3 7 8 To the contrary, the level of scrutiny the Court
9 applies depends not on the nature of the legal challenge, 10 but rather on the nature of the right implicated. 11 e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) 12 (substantive due process "forbids the government to 13 infringe certain 'fundamental' liberty interests at all . 14 . . unless the infringement is narrowly tailored to serve 15 a compelling state interest.") (emphasis in original); 16 P.O.P.S. v. Gardner, 998 F.2d 764, 76768 (9th Cir. 1993) 17 (strict scrutiny triggered by impairment of fundamental 18 rights). Where state action implicates a fundamental See,
19 right, that action is subject to heightened scrutiny 20 regardless of whether the nature of the challenge is 21 facial or as-applied. The Supreme Court has applied
22 heightened scrutiny to facial challenges where 23 24 Indeed, the consequence of the "disfavored" status 25 of facial challenges is not a varying standard of review, but rather the requirement that the challenger prove that 26 no circumstances exist under which the statute could be constitutionally applied. See Salerno, 481 U.S. at 745; Wash. State Grange, 552 U.S. at 457;; S.D. Myers, Inc. v. 27 City & County of San Francisco, 253 F.3d 461, 467 (9th 28 Cir. 2001).
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3
1 fundamental rights were implicated.
See Planned
2 Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845, 87778 3 (1992) (applying intermediate scrutiny to facial 4 challenge). 5 6 In Witt, the Ninth Circuit recognized that the DADT
7 Policy implicates fundamental rights protected by 8 Lawrence. See Witt, 527 F.3d at 819. Although it noted
9 the as-applied nature of the plaintiff's challenge, the 10 Witt court did not expressly limit its holding to as11 applied cases. Given the centrality of its recognition
12 of the fundamental rights implicated by the DADT Policy, 13 Witt's heightened standard of review applies in this 14 action challenging the Policy on a facial basis. To the
15 extent the June 9, 2009 Order on Defendants' motion to 16 dismiss Plaintiff's First Amended Complaint indicated 17 otherwise, the Court, having allowed the parties to 18 submit additional briefing on the issue, now finds the 19 standard announced by the Ninth Circuit in Witt governs 20 here. 21 22 23 24 2. Defendants Fail to Show They Are Entitled to Summary Judgment under the Witt Standard Despite the order granting leave to file a
25 supplemental brief addressing why they are entitled to 26 summary judgment under the Witt standard, Defendants have 27 failed to offer any argument why the DADT Policy survives 28
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1 under a heightened level of scrutiny.
Instead,
2 Defendants again have sought a stay of this action,4 3 (Defs.' Supp. Br. at 36), argued that rational basis is 4 the appropriate standard of review, (Defs.' Supp. Br. at 5 69), argued in the alternative that the standard of 6 review set forth in Beller v. Middendorf, 632 F.2d 788 7 (9th Cir. 1980) applies,5 (Defs.' Supp. Br. at 912), 8 argued that Plaintiff's facial challenge cannot survive,6 9 (Defs.' Supp. Br. at 12), and argued that Plaintiff is 10 not entitled to rely on evidence outside of the DADT 11 Policy itself and the relevant legislative history in 12 challenging the DADT Policy.7 13
4 The Court 14 separately. (Seeaddresses Defendants' request for a stay infra, Section III.C.) 15 5 This argument fails, as it ignores the Witt court's express disavowal of Beller's holding. Witt, 527 F.3d at 16 819 ("We also conclude that our holding in Beller, 632 17 F.2d 788, that a predecessor policy to DADT survived no heightened scrutiny under the Due Process Clause, is 18 longer good law."), 820 ("Beller's heightened scrutiny analysis and holding therefore have been effectively 19 overruled by intervening Supreme Court authority."). 6 Defendants maintain that Plaintiff has failed to 20 meet its burden of showing there are no circumstances in 21 which the DADT Policy could be constitutionally applied. Although Plaintiff ultimately may bear the burden of 22 proof on this issue, at the summary judgment stage the burden is on Defendants. Defendants have failed to 23 identify any instance in which the DADT Policy could constitutionally be applied, and thus fail to meet their 24 burden of showing they are entitled to summary judgment on this basis. 25 7 This argument also fails. The only authorities Defendants rely on in support of this proposition are FCC 26 v. Beach Commc'n, Inc., 508 U.S. 307 (1993) and Goldman 27 v. Weinberger, 475 U.S. 503 (1986). Beach, however, involved rational basis review, not heightened scrutiny. (continued...) 28
(Defs.' Supp. Br. 1315).
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1 As the moving party, Defendants bear the burden of 2 showing they are entitled to summary judgment. As they
3 failed to address why they are entitled to summary 4 judgment under the Witt standard of review, Defendants do 5 not meet their burden of showing they are entitled to 6 summary judgment. 7 8 B. 9 First Amendment Defendants argue Plaintiff's First Amendment
10 challenge fails because "the DADT Policy and testimony 11 establish that service members are not and have not been 12 discharged for statements other than to show a propensity 13 or intent to engage in homosexual acts." (Mot. at 22.)
14 Specifically, Defendants argue Plaintiff cannot sustain 15 its First Amendment claim because: (1) John Alexander 16 Nicholson was discharged on the basis of his statement 17 that he is "gay," which was used as evidence of his 18 propensity to engage in homosexual acts and which he 19 chose not to rebut; and (2) Lt. Col. Doe has not been 20 discharged from the military and accordingly "no 21 statement has been used as the basis to discharge Doe 22 23 24 25 26 27 28 (...continued) Goldman related to a military regulation, not an act of Congress. Furthermore, the regulation at issue applied only to the dress codes of on-duty service members. The DADT Policy is far broader in its reach and affects wholly different substantive rights; thus it is not entitled to the same degree of deference as a uniform dress regulation.
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7
1 under the challenged statute or otherwise."8 2 24.) 3 4
(Mot. at
Defendants' argument regarding the use of statements
5 as admissions under the DADT Policy is unnecessary 6 because the Court already addressed that issue in its 7 June 9, 2009 Order. The Court dismissed Plaintiff's
8 First Amendment claim to the extent it related to use of 9 a service member's statement regarding homosexuality as 10 evidence of his or her propensity to engage in homosexual 11 acts. (June 9, 2009 Order at 2122.) The Court based
12 its conclusion on the Ninth Circuit's holding in Holmes 13 v. California Army National Guard, 124 F.3d 1126 (9th 14 Cir. 1997) that use of a service member's statement under 15 the DADT Policy as an admission of conduct does not 16 violate the First Amendment. See id. at 1136. The
17 Court, however, denied Defendants' motion to dismiss 18 Plaintiff's First Amendment claim insofar as it related 19 to speech not used as an admission of a propensity to 20 engage in homosexual acts. 21 2324.) 22 23 24 25 Defendants appear to read the Court's June 9, 2009 Order as limiting Plaintiff's First Amendment claim to 27 statements related to discharge. (See Mot. at 2223.) The Court's June 9, 2009 Order, however, contains no such 28 limitation. 26
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8
(See June 9, 2009 Order at
Defendants argue discovery has revealed that
2 Nicholson was discharged because of his statement that he 3 is "gay," which created a rebuttable presumption of his 4 likelihood to engage in "homosexual acts." (Mot. at 23.)
5 Nicholson, Defendants argue, was discharged because his 6 failure to rebut this presumption constituted an 7 admission. 8 9 According to Plaintiff, the DADT policy is "circular" (Id.)
10 because it "[p]rovides that sexual orientation is 11 considered a personal and private matter," yet "defines 12 'conduct' to include a statement by a member that 13 demonstrates a propensity or intent to engage in 14 homosexual acts." (Opp'n at 21 (internal citations "In other words, the
15 omitted) (emphasis in original).)
16 fact of one's status as a homosexual is supposedly not a 17 basis for discharge but the statement of that permissible 18 status is." (Opp'n at 22 (emphasis in original).) "Not
19 surprisingly, given this framework, the vast majority of 20 discharges under DADT are for 'statements,' not conduct." 21 (Id. (emphasis in original).) 22 23 The Ninth Circuit considered and rejected this very
24 reasoning in Holmes, which remains binding precedent on 25 this issue. See Holmes, 124 F.3d at 113436; Hensala v.
26 Dep't of Air Force, 343 F.3d 951, 95759 (9th Cir. 2003) 27 28
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1 (endorsing Holmes' First Amendment analysis of the DADT 2 Policy). 3 4 In Holmes, two service members were discharged after
5 they made statements about their homosexuality and failed 6 to present evidence to rebut the presumption they engaged 7 in or intended to engage in homosexual acts. 8 112932. 124 F.3d at
Though the plaintiffs presented evidence of
9 their excellent service records, and one denied engaging 10 in homosexual acts with fellow service members, or with 11 any person at all during the performance of military 12 duty, the court determined the plaintiffs failed to rebut 13 the presumption of a propensity or intent to engage in 14 homosexual acts: 15 16 17 18 19 20 21 22 Id. at 1135. 23 24 As noted above, the Court already dismissed 25 Plaintiff's claim to the extent it sought to challenge 26 the use of statements as evidence of a propensity to 27 engage in conduct. 28
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[U]nder the statements prong of the "don't ask/don't tell" policy, service members are not discharged for having a homosexual "status." The discharges result because of actual conduct or a propensity for conduct that is prohibited. [The plaintiffs'] respective declarations of homosexual orientation did not automatically lead to their discharge; rather, their declaration was coupled with their tacit acceptance of the link between their orientation and their conduct, as evidenced by their failure to show that they did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.
(June 9, 2009 Order at 23.)
In other
1 words, Plaintiff's First Amendment claim fails to the 2 extent it is premised upon service members' discharges 3 for making statements about their homosexuality and 4 failing to present evidence to rebut the presumption that 5 they engaged in or intended to engage in homosexual acts. 6 See Holmes, 124 F.3d at 1129. 7 8 Next, Defendants argue Plaintiff's First Amendment
9 claim fails because Lt. Col. Doe is still serving in the 10 military and has not been discharged on the basis of 11 speech. While Lt. Col. Doe indeed has not been
12 discharged under the DADT Policy, Plaintiff alleges the 13 DADT Policy prevents Doe and other LCR members from 14 "communicating the core of [their] emotions and identity 15 to others", (see Opp'n at 23; Doe Decl. 7), and chills 16 "public, off-base" speech such as participating in 17 political rallies for gay rights and denouncing "biased 18 comments about homosexuals." (Opp'n at 24.) Plaintiff
19 also contends the DADT Policy chills service members' 20 First Amendment right to petition the government for a 21 redress of grievances because members like Doe are unable 22 to identify themselves publicly as members of LCR or to 23 testify at trial for fear they will be discharged. 24 at 23.) (Id.
Thus, according to Plaintiff, the DADT Policy
25 chills the constitutionally protected speech of service 26 members who have not been discharged. 27 28
15 333
Plaintiff may succeed in its facial challenge (see
2 Opp'n at 1, 24) in one of two different methods: by 3 showing the law (1) "is unconstitutional in every 4 conceivable application,"9 or (2) "seeks to prohibit such 5 a broad range of protected conduct that it is 6 unconstitutionally 'overbroad.'" Members of the City
7 Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 8 789, 796 (1984). The Ninth Circuit has held that "a law
9 is void on its face if it sweeps within its ambit not 10 solely activity that is subject to governmental control, 11 but also includes within its prohibition the practice of 12 a protected constitutional right." Clark v. City of Los
13 Angeles, 650 F.2d 1033, 1039 (9th Cir. 1981) ("The 14 overbreadth doctrine has been applied almost exclusively 15 in the areas of [F]irst [A]mendment expressive or 16 associational rights.") (citing Broadrick v. Oklahoma, 17 413 U.S. 601, 612 (1973); Dombrowski v. Pfister, 380 U.S. 18 479, 486 (1965)). 19 20 Under the "overbreadth" doctrine, a plaintiff may
21 challenge an overly broad statute, facially, by showing 22 that it may inhibit the First Amendment rights of 23 individuals who are not before the court. See, e.g.,
24 Vincent, 466 U.S. at 798-99; Village of Schaumburg v. 25 26 Plaintiff does not make this argument, which would be foreclosed in light of the Court's June 9, 2009 Order, 27 holding the use of service members' statements as 28 admissions constitutional under Holmes.
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9
1 Citizens for a Better Env't, 444 U.S. 620, 634 (1980). 2 That is, a plaintiff may challenge a statute on the 3 ground that it is unconstitutional as applied to someone 4 else, even if her own conduct is not protected under the 5 First Amendment. See Foti v. City of Menlo Park, 146
6 F.3d 629, 635 (9th Cir. 1998) (citing Vincent, 466 U.S. 7 at 797); Forsyth County v. Nationalist Movement, 505 U.S. 8 123, 129 (1992) (overbreadth doctrine is based on the 9 observation that "the very existence of some broadly 10 written laws has the potential to chill the expressive 11 activity of others not before the court"); see also Lind 12 v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994) 13 (overbreadth doctrine is designed to avert a potential 14 chilling effect on speech). Of course, a plaintiff whose
15 conduct is protected may also bring a facial challenge to 16 a statute that she contends is unconstitutional, without 17 having to employ the overbreadth doctrine, by arguing 18 that the statute could never be applied in a valid manner 19 and would chill the speech of others. See Foti, 146 F.3d
20 at 635; Nunez v. City of San Diego, 114 F.3d 935, 949 21 (9th Cir. 1997); Tucker v. State of California Dep't of 22 Educ., 97 F.3d 1204, 1217 n.10 (9th Cir. 1996). 23 24 Defendants' argument that they are entitled to
25 summary judgment on the basis of facts related to 26 Nicholson and Doe fails, because Plaintiff is not limited 27 to pursuing its members' individual claims. 28
17 335
Rather,
1 Plaintiff may challenge the DADT Policy by showing that 2 it has the potential to chill the expressive activity of 3 others not before the court. 4 79697. 5 6 A litigant making a facial challenge to a statute on See Vincent, 466 U.S. at
7 First Amendment grounds bears a "heavy burden" and "must 8 demonstrate a substantial risk that the application of 9 the [statutory] provision will lead to the suppression of 10 speech." Nat'l Endowment for the Arts v. Finley, 524
11 U.S. 569, 580 (1998) (citing Broadrick, 413 U.S. at 615). 12 Here, as Plaintiff bears the burden at trial, Defendants 13 need not produce evidence negating or disproving every 14 essential element of Plaintiff's claim, but must point 15 out that there is an absence of evidence supporting 16 Plaintiff's claim. See Celotex, 477 U.S. at 325.
17 Defendants fail to address Plaintiff's overbreadth claim 18 whatsoever, and consequently have not met their burden of 19 showing they are entitled to summary judgment on 20 Plaintiff's First Amendment claim. 21 22 C. 23 A Stay of This Action Is Not Warranted In their Supplemental Brief, Defendants again seek a Defendants appear to advance three
24 stay of this action.10 25

10
Defendants use the vehicle of their Supplemental Brief to seek a stay of this action despite having leave 27 to file this brief "for the sole purpose of discussing application of the Witt standard to Plaintiff's (continued...) 28 26
18 336
1 arguments in support of this request: (1) a stay would be 2 in the interests of all parties as it may moot the need 3 for a trial; (2) a stay would permit the Court to avoid 4 reaching constitutional issues; and (3) the Court should 5 defer to the other branches of government on questions 6 involving the military. For the reasons set forth below,
7 the Court finds none of these arguments persuasive, and 8 declines to stay this action. 9 10 11 1. A Stay Is Unlikely to Moot This Action
Defendants argue that a stay is appropriate because a
12 measure to repeal the DADT Policy currently is pending in 13 both houses of Congress. Defendants contend that "the
14 Court should defer ruling on LCR's facial constitutional 15 challenge to allow the political branches to properly 16 consider whether the implementation of a repeal would be 17 consistent with the standards of military readiness, 18 military effectiveness, and unit cohesion." 19 Supp. Br. at 6:1720.) 20 21 A stay of this action on the basis of this pending (Defs.'
22 legislation would be unjustified for at least two 23 reasons. First, at this time it is speculative to assert
24 that the measures in question, section 591 of Senate Bill 25 26 (...continued) substantive due process claim." (Docket No. 170 at 27 26:2627:2.) The Court nevertheless considers the merits 28 of Defendants' request.
19 337
10
1 3454, and section 536 of H.R. 5136, will ultimately be 2 included as part of the final defense authorization bill 3 that emerges from Congress. 4 5 Second, even if these measures were to become law,
6 they still would not repeal the DADT Policy immediately. 7 As Defendants concede, ultimate repeal depends on several 8 contingencies. First, the Secretary of Defense must
9 complete a "Comprehensive Review on the Implementation of 10 a Repeal of 10 U.S.C. 654" (the "Review") initiated on 11 March 2, 2010. The currently contemplated repeal
12 measures provide no deadline for completion of the 13 Review; thus there is no means for the Court to determine 14 when this first condition precedent may occur, if ever. 15 Second, once the Review has been completed, the President 16 must transmit a certification signed by himself, the 17 Secretary of Defense, and the Chairman of the Joint 18 Chiefs of Staff stating that they have: (1) considered 19 the recommendations and proposals of the Review; (2) 20 prepared necessary policies and regulations for repeal of 21 the DADT Policy; and (3) determined that implementation 22 of those policies and regulations is "consistent with the 23 standards of military readiness, military effectiveness, 24 unit cohesion, and recruiting and retention of the Armed 25 Forces." S. 3454, 111th Cong. 591(b)(2)(C) (2010); Again, the
26 H.R. 5136, 111th Cong. 536(b)(2)(C) (2010).
27 measure provides no deadline for the President to 28

20 338
1 transmit such a certification, and effectively vests him 2 with discretion to decline to do so. 3 4 In other words, the currently contemplated
5 legislation, were it to become law, would not result in 6 imminent repeal of the DADT Policy. Given the many
7 contingencies involved including the threshold 8 contingency of Congressional approval and the lack of 9 clear timelines, any ultimate repeal that may result from 10 this legislation is at this point remote, if not wholly 11 speculative. 12 13 14 15 2. The Court Is Not Obligated to Stay This Action to Avoid Constitutional Questions Defendants cite the well-established principle that
16 "courts should not decide constitutional issues if they 17 can reasonably avoid doing so." 18 4:89.) (Defs.' Supp. Br. at See
This is a canon of construction, however.
19 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 10506 20 (1944) (applying doctrine of avoidance to require courts 21 to await determinations on local law issues before 22 reaching questions of constitutionality). Whether or not
23 to stay a case is a separate matter, one within the 24 Court's discretion. See Mediterranean Enter., Inc. v.
25 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) ("A 26 trial court may, with propriety, find it is efficient for 27 its own docket and the fairest course for the parties to 28
21 339
1 enter a stay of an action before it, pending resolution 2 of independent proceedings which bear upon the case.") 3 (quoting Leyva v. Certified Grocers of California, 593 4 F.2d 857, 86364 (9th Cir. 1979). Here, for the reasons
5 discussed above, the possibility that action by the 6 legislative and executive branches will moot this case is 7 sufficiently remote that a stay of this action is 8 inappropriate. 9 10 11 12 13 3. The Court Is Not Obligated to Defer to the Judgment of the Legislative and Executive Branches Defendants' argument that "Congress, rather than the
14 courts, [should] make decisions regarding the military," 15 (Defs.' Supp. Br. at 6:910), also lacks merit. It is
16 true, as the Supreme Court has recognized, that the 17 military is entitled to a certain degree of deference. 18 See, e.g., North Dakota v. United States, 495 U.S. 423, 19 443 (1990) ("When the Court is confronted with questions 20 relating to military discipline and military operations, 21 we properly defer to the judgment of those who must lead 22 our Armed Forces in battle."). That deference, however,
23 is not unlimited, and must be balanced against the 24 courts' "time-honored and constitutionally mandated roles 25 of reviewing and resolving claims." 26 542 U.S. 507, 535 (2004). Hamdi v. Rumsfeld,
This role "does not infringe Id. Defendants have
27 on the core role of the military." 28

22
340
1 identified no authority requiring the Court to stay this 2 action on this basis or to refrain from reaching the 3 constitutional questions presented. 4 Court declines to enter a stay. 5 6 7 IV. CONCLUSION For the reasons set forth above, the Court DENIES Accordingly, the
8 Defendants' Motion. 9 10 11 Dated: July 6, 2010 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Case: 10-56634 10/25/2010 Page: 1 of 86
ID: 7521688 DktEntry: 9-17
1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) ) non-profit corporation, 12 ) ) Plaintiff, 13 ) ) v. 14 ) UNITED STATES OF AMERICA ) 15 and ROBERT M. GATES, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) _________________________ ) 18 19 20 21 22 23 24 25 26 27 28 Case No. CV 04-08425-VAP (Ex) AMENDED & FINAL MEMORANDUM OPINION [Filed concurrently with Findings of Fact & Conclusions of Law] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
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Case 2:04-cv-08425-VAP-E DocumentPage: 2 of 86 ID: 7521688 2DktEntry: 9-17 #:7618 Case: 10-56634 10/25/2010 250 Filed 10/12/10 Page of 86 Page ID
Plaintiff Log Cabin Republicans attacks the constitutionality of the
2 statute known as the "Don't Ask, Don't Tell" Act ("the Act" or "the Policy"), 3 found at 10 U.S.C. 654, and its implementing regulations.1 Plaintiff's 4 challenge is two-fold: it contends the Act violates its members' rights to 5 substantive due process guaranteed by the Fifth Amendment to the United 6 States Constitution, and its members' rights of freedom of speech, 7 association, and to petition the government, guaranteed by the First 8 Amendment.2 9 10 The Court finds Plaintiff Log Cabin Republicans (sometimes referred to 11 in this Order as "Log Cabin," "LCR," or "Plaintiff"), a non-profit corporation, 12 has established standing to bring and maintain this suit on behalf of its 13 members. Additionally, Log Cabin Republicans has demonstrated the Don't 14 Ask, Don't Tell Act, on its face, violates the constitutional rights of its 15 members. Plaintiff is entitled to the relief sought in its First Amended 16 Complaint: a judicial declaration to that effect and a permanent injunction 17 barring further enforcement of the Act. 18 19 20 21 22 The Act, described in greater detail below, provides that any member 23 of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the servicemember is able to demonstrate that he or she 24 has no propensity to engage in "homosexual conduct." Under the Act, homosexual conduct includes sexual acts with persons of the same sex, 25 admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex. 26 The Court dismissed Plaintiff's claim for violation of the Equal Protection Clause in an Order dated June 9, 2009 ("June 9, 2009, Order"). 28 (Doc. No. 83.) 27
1
2 1
343
1 2
I. PROCEEDINGS This case was tried to the Court on July 13 through 16 and July 20
3 through 23, 2010. After conclusion of the evidence and closing arguments on 4 July 23, 2010, both sides timely submitted supplemental post-trial briefing on 5 the admissiblility of a pretrial declaration submitted by Log Cabin Republicans 6 member John Doe,3 and the matter stood submitted. 7 8 9 II. STANDING Plaintiff Log Cabin Republicans is a non-profit corporation founded in
10 1977 and organized under the laws of the District of Columbia. (Trial Exs. 11 109 [Bylaws], 110 [Articles of Incorporation].) Defendants challenge LCR's 12 standing to bring and maintain this action on behalf of its members. 13 14 Plaintiff bears the burden of establishing its standing to invoke federal 15 jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To 16 bring suit on behalf of its members, an association must establish the 17 following: "(a) [at least one of] its members would otherwise have standing to 18 sue in [his or her] own right; (b) the interests it seeks to protect are germane 19 to the organization's purpose; and (c) neither the claim asserted nor the relief 20 requested requires the participation of individual members in the lawsuit." 21 Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). To 22 satisfy the first element of associational standing, a organization must 23 demonstrate constitutional standing as to at least one member of the 24 25 The Court overrules Defendants' objections to Exhibit 38, the April 27, 26 2006 Declaration of John Doe, and considers the statements contained therein regarding Doe's then-present state of mind for the limited purpose for 27 which they were offered, i.e., Doe's state of mind with respect to whether the Act chilled his speech and ability to petition the government for a redress of 28 grievances. See Fed. R. Evid. 803(3).
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1 organization, as follows: (1) injury in fact; (2) caused by the defendants; (3) 2 which likely will be redressed by a favorable decision by the federal court. 3 Lujan, 504 U.S. at 560-61; see also Elk Grove Unified Sch. Dist. v. Newdow, 4 542 U.S. 1, 12 (2004). 5 6 Turning first to the associational standing requirements, Plaintiff 7 established at trial that the interests it seeks to vindicate in this litigation are 8 germane to LCR's purposes, satisfying the second requirement for 9 associational standing. Plaintiff's mission includes "assist[ing] in the 10 development and enactment of policies affecting the gay and lesbian 11 community . . . by [the] federal government[]. . . and advocat[ing] and 12 support[ing] . . . activities or initiatives which (i) provide equal rights under law 13 to persons who are gay or lesbian, [and] (ii) promote nondiscrimination 14 against or harassment of persons who are gay or lesbian . . . ." (Trial Ex. 109 15 [Mission Statement, attached as Ex. A to Bylaws].) The relief sought here, 16 i.e., the ability of homosexual servicemembers to serve openly in the United 17 States Armed Forces through repeal of the Don't Ask, Don't Tell Act, relates 18 to both aspects of Log Cabin's mission. 19 20 Plaintiff also has satisfied the third requirement of associational 21 standing, "that the suit not demand the participation of individual members." 22 Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401, 23 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only declaratory and 24 injunctive relief in its First Amended Complaint; when "the claims proffered 25 and relief requested do not demand individualized proof on the part of its 26 members," such as when only declaratory and prospective relief are sought, 27 the individual members of an association need not participate directly in the 28
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1 litigation. Id.; see also Hunt, 432 U.S. at 343 (citing Warth v. Seldin, 422 U.S. 2 490, 515 (1975)). 3 4 Defendants directed their challenge primarily to the first requirement of 5 associational standing, i.e., whether there exists at least one member of the 6 association who could maintain this suit in his or her own right. According to 7 Defendant, neither of the two members Plaintiff relies upon to confer 8 associational standing on it meets the requirements for that role, because 9 neither was a member of Log Cabin Republicans continuously from the date 10 of the commencement of this action until the date of trial. 11 12 Plaintiff filed this action on October 12, 2004 (Doc. No. 1); after the 13 Court granted Defendants' motion to dismiss, Plaintiff filed a First Amended 14 Complaint on April 28, 2006. (Doc. No. 25.) The Court already has ruled that 15 standing in this case should be examined as of April 28, 2006, the date 16 Plaintiff filed its First Amended Complaint. (See Doc. No. 170 ["May 27, 17 2010, Order"] at 15.) For the reasons discussed below, as of that date at 18 least one of Log Cabin's members, John Nicholson, had standing and could 19 have pursued the action individually. Even if the Court looks to the date the 20 original Complaint was filed as the relevant one for standing purposes, 21 however, Plaintiff still satisfies the associational standing requirements, as 22 Plaintiff proved by a preponderance of the evidence at trial that John Doe 23 was a member in good standing as of October 12, 2004. 24 25 26 27 28
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John Nicholson's Standing John Alexander Nicholson, III, enlisted in the United States Army in
3 May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As described in more detail 4 below, he received an honorable discharge on March 22, 2002, pursuant to 5 the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July 6 20, 2010.) Nicholson satisfies all three of the requirements for constitutional 7 standing, i.e., "injury in fact" caused by the defendants (his discharge by 8 Defendants pursuant to the Policy), which is redressable by the relief sought 9 in this lawsuit, as he testified he would rejoin the Army if the policy was no 10 longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.) 11 12 Nicholson first became involved with Log Cabin Republicans in August 13 2005, when he and others embarked on a nationwide speaking tour 14 sponsored by LCR to raise awareness of the movement to repeal the Don't 15 Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.) LCR's 16 national and Georgia state chapter leaders asked Nicholson to join the 17 organization formally after he gave a speech at LCR's national convention on 18 April 28, 2006; he did not pay dues or make a cash contribution at that time, 19 but was told his membership was granted in exchange for his services to the 20 organization. (Trial Tr. 1207:22-1208:25, 1211:25-1212:15, July 21, 2010.) 21 Later he was told his was an honorary membership. (Trial Tr. 1211:10-12, 22 1214:13-15, July 21, 2010.) 23 24 Thus, Nicholson officially joined Log Cabin Republicans on April 28, 25 2006, and has been a member continuously ever since. (Trial Tr. 1208:1126 15, 1214:24-1215:17, July 21, 2010.) He testified credibly that he did not 27 complete a paper membership application form that day because he gave the 28
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1 necessary information to an LCR administrative assistant who entered it 2 directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff 3 maintains an electronic database of its membership which lists Nicholson as 4 a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:205 22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered 6 the precise date Log Cabin's Georgia chapter granted him honorary 7 membership because it was the same day he addressed LCR's national 8 convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.) 9 10 The testimony of James Ensley, President of Plaintiff's Georgia chapter 11 since 2006 and a member of LCR's national board of directors since 2008, 12 corroborated Nicholson's testimony regarding the date he became a member 13 of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) Ensley testified that the 14 Georgia chapter conferred honorary membership on Nicholson at the 2006 15 Log Cabin Republicans national convention, in recognition of his 16 "remarkable" efforts on the nationwide speaking tour and on college 17 campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-16, 18 July 13, 2010.) Ensley specifically recalled the date the Georgia chapter 19 conferred honorary membership on Nicholson because Ensley's 20 congressman had arranged a private tour of the White House for him on the 21 morning of April 28, 2006, which was the same day Nicholson addressed the 22 convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to 23 be a candid and credible witness. 24 25 Plaintiff also produced the credible testimony of Terry Hamilton, a 2526 year member of Log Cabin Republicans and presently chairman of its 27 national board of directors. (Trial Tr. 33:11-35:22, July 13, 2010.) He verified 28
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1 that the organization's membership records reflected Nicholson's membership 2 status since April 28, 2006, and also that Nicholson regularly attended and 3 spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July 4 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a 5 member of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 6 2010.) 7 8 Thus, at the time Nicholson was conferred honorary membership, he 9 satisfied the requirements for membership under section 2.02 of the Log 10 Cabin Republican Bylaws, which states: 11 Honorary and Special Members: The Board of Directors may establish other criteria for granting an Honorary Membership to Log 12 Cabin Republicans for individuals who have exhibited a unique or noteworthy contribution to the Mission of the Corporation or a 13 Special Membership to Log Cabin Republicans for individuals or entities that have provided assistance to the Corporation.4 14 (Trial Ex. 109.) 15 Accordingly, Log Cabin Republicans has standing through Nicholson, 16 who himself satisfies all the requirements for constitutional standing and has 17 been a member of LCR from the date the First Amended Complaint was filed 18 to the present. 19 20 21 Defendants argue Nicholson's honorary membership, pursuant to 22 section 2.02 of the Bylaws, did not confer membership on him because LCR's Articles of Incorporation refer only to one class of membership. (See Doc. 23 No. 186 [Defs.' Mem. Cont. Fact & Law] at 3-4.) The Court rejected this argument in its May 27, 2010, Order, noting "Defendants' argument that Mr. 24 Nicholson's honorary membership is insufficient to confer standing on Plaintiff fails for two reasons . . . . Defendants have not shown that the bylaw at issue 25 actually conflicts with Plaintiff's articles of incorporation . . . . [, and] [t]he District of Columbia Nonprofit Corporation Act (the 'Corporation Act') provides 26 that a nonprofit corporation shall designate its membership class or classes and accompanying qualifications 'in the articles of incorporation or the bylaws.' D.C. Code 29-301.12 (emphasis added)." (May 27, 2010, Order at 27 24-25.) 28
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The Court rejects Defendants' suggestion that LCR "manufactured" its
2 standing for purposes of this lawsuit. (See Doc. No. 188 [Defs.' Proposed 3 Findings of Fact & Conclusions of Law] at 3.) The only authority Defendants 4 cite on this point is Washington Legal Foundation v. Leavitt, 477 F. Supp. 2d 5 202, 211 (D.D.C. 2007), holding the manufacture of standing "weakens" an 6 association's ability to maintain a lawsuit on behalf of its members. The 7 record before the district court in Washington Legal Foundation revealed 8 facts not present here, however. As that court explained, the Washington 9 Legal Foundation's board of directors explicitly decided to bring suit, and then 10 set about to find and recruit persons who would confer standing on it. By 11 contrast, Martin Meekins, a member of LCR's national board of directors, 12 testified that the initiative for filing this lawsuit came from the rank and file of 13 the organization; Meekins then interviewed members regarding the viability of 14 a lawsuit and to determine if they met the requirements to confer standing on 15 the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:1116 707:12, July 16, 2010.) 17 18 Although not explicitly argued, Defendants' only factual basis for 19 contending that Log Cabin Republicans manufactured standing appears to be 20 the identity of dates on which John Nicholson became an LCR member and 21 the First Amended Complaint was filed. The Court found credible, however, 22 the testimony of the several witnesses who testified about the reason LCR 23 bestowed an honorary membership on Nicholson that day, as explained 24 above. 25 26 27 28
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Case 2:04-cv-08425-VAP-E DocumentPage: 10 of 86 ID: 7521688 DktEntry: 9-17 #:7626 Case: 10-56634 10/25/2010 250 Filed 10/12/10 Page 10 of 86 Page ID
Washington Legal Foundation is, of course, not binding authority on this
2 Court, but to the extent it provides guidance, it only holds that "manufacture" 3 of standing weakens but does not destroy an association's ability to maintain 4 its suit. Furthermore, there is no evidence here that LCR manufactured 5 standing, so Washington Legal Foundation is factually dissimilar. 6 7 B. 8 John Doe's Standing For the reasons set forth in its May 27, 2010, Order, the Court looks to
9 the filing date of the First Amended Complaint to determine standing. (See 10 May 27, 2010, Order at 15.) Nevertheless, even accepting Defendants' 11 contention that standing in this case must be established as of October 12, 12 2004, when the original Complaint was filed, Log Cabin Republicans satisfies 13 that requirement through its member John Doe. 14 15 John Doe serves as a lieutenant colonel in the United States Army 16 Reserve. He joined Log Cabin Republicans in early September 2004 by 17 completing an application form (using a pseudonym) and paying annual dues 18 through Martin Meekins, then a member of Plaintiff's national board of 19 directors. Meekins accepted the application form and dues payment from 20 Doe and forwarded them to LCR's national headquarters. Doe arranged to 21 pay his membership dues in this manner because he feared he would be 22 discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if 23 he joined the organization openly, using his true name. (Trial Ex. 38.) 24 25 26 27 28
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To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual
2 orientation a secret from his coworkers, his unit, and his military superiors, 3 and he may not communicate the core of his emotions and identity to others 4 in the same manner as heterosexual members of the military, on pain of 5 discharge from the Army. (Doc. No. 212 ["July 6, 2010, Order"] at 16; Trial 6 Ex. 38.) 7 8 The Court ruled in its May 27, 2010, Order that Plaintiff raised a triable 9 issue of material fact as to imminent harm related to Doe. (May 27, 2010, 10 Order at 16-19.) The Court now finds that Doe has established the three 11 elements of constitutional standing: he faces a concrete injury caused by 12 Defendants discharge from the Army Reserve which is likely, not 13 speculative, in nature, given the mandatory language of the Don't Ask, Don't 14 Tell Act, see 10 U.S.C. 654 (b)(2), and which would be redressed by a 15 favorable decision by the Court in this action. 16 17 C. 18 Continuity of Standing Defendants contended for the first time in their closing argument that
19 Plaintiff lacks standing because it had not proven at trial that either of the 20 individual members on whom it relies to confer associational standing upon it 21 had been a member of the organization continuously from the initiation of the 22 action onwards. 23 24 Insofar as LCR relies on Nicholson's membership to confer 25 associational standing upon the organization, Defendants' argument fails. 26 Nicholson's membership in Log Cabin Republicans has been uninterrupted 27 and continuous since April 28, 2006, the date Plaintiff's Georgia chapter 28
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1 conferred honorary membership upon him and also the date Plaintiff filed its 2 First Amended Complaint. In light of the Court's May 27, 2010, Order, this is 3 sufficient. 4 5 As Plaintiff relies also on Doe's membership to confer associational 6 standing upon it, the Court examines the continuity of standing question as to 7 him as well. Doe paid annual membership dues shortly before this action 8 was filed in October 2004, but LCR did not introduce evidence showing Doe 9 paid dues, or otherwise made a financial contribution, to the organization 10 after 2004. A plaintiff who has established standing must retain his or her 11 "personal stake" in the litigation throughout the proceedings. See Lewis v. 12 Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517 13 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal stake" 14 in the lawsuit, a court loses the ability to grant relief and must dismiss the 15 action on the basis of mootness because the plaintiff no longer satisfies the 16 redressability element of constitutional standing. See, e.g., Arizonans for 17 Official English v. Arizona, 520 U.S. 43, 68-72 (1997) (mootness); Williams, 18 517 F.3d at 1128 (redressability). 19 20 The cases cited above addressing loss of standing do not arise in an 21 associational standing context, however. Whether one regards Plaintiff Log 22 Cabin Republicans or John Doe as the party whose standing is at issue, 23 neither lost a "personal stake" in the litigation when Doe's annual period of 24 membership lapsed. 25 26 27 28
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First, there was conflicting evidence regarding the effect of a member's
2 nonpayment of dues. James Ensley testified that when a member failed to 3 renew his or her annual dues payment, the Log Cabin Republicans viewed 4 the member as a "former" or "inactive" member, but the name would not be 5 stricken from LCR's membership rolls or electronic database simply because 6 of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry 7 Hamilton, another member of the national board of directors, testified that a 8 member who failed to renew his membership timely no longer would be 9 considered a member, but his testimony did not contradict Ensley's testimony 10 regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 11 2010.) 12 13 Nevertheless, neither Log Cabin Republicans nor Doe lost the 14 necessary personal stake in this litigation merely because Doe did not pay 15 dues after the initial year. Doe still served in the Army Reserve and still was 16 subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a 17 personal stake in the outcome of the case, and his injury his susceptibility 18 to discharge under the Act continued to be redressable by favorable 19 resolution of the lawsuit. 20 21 Nor is this a case where standing has been lost because of a change in 22 circumstances rendering the subject matter of the case moot: the Act has not 23 been repealed and the challenged policy is still in effect; Doe is still serving 24 and subject to discharge under it;5 Nicholson already has been discharged 25 26 In fact, Plaintiff agreed to Defendants' request for a stay of this case if Defendants would suspend discharges under the Policy, but Defendants 28 refused to do so. 27
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1 under it and cannot re-enlist as he wishes to do. Finally, the dispute over the 2 constitutionality of the Act has not been resolved. 3 4 Likewise, the redressability aspect of constitutional standing remains 5 alive despite the lapse in Doe's dues-paying membership status. Doe's 6 imminent injury the mandatory nature of his discharge under the policy 7 would be addressed through a favorable ruling in this action. 8 9 Finally, even assuming Defendants were correct that Log Cabin 10 Republicans failed to prove standing through Doe based on the lack of 11 evidence he paid dues after 2005, this would not require a finding that 12 Plaintiff could not maintain its claims. Plaintiff had standing to file suit based 13 on the undisputed evidence of Doe's membership as of October 12, 2004, the 14 date Log Cabin Republicans filed this action. Assuming Doe's membership 15 lapsed a year later, in early September 2005, Plaintiff lacked standing 16 temporarily from that time until April 28, 2006, when Nicholson became a 17 member of Log Cabin Republicans. Courts have recognized that a plaintiff 18 who possesses standing when it brings suit, later loses it, and then regains 19 standing before entry of judgment, may still maintain its claims. See, e.g., 20 Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. 21 Cir. 2005) (finding plaintiff that owned patent at outset of litigation, assigned it 22 to subsidiary, then reacquired it before judgment may maintain an 23 infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64, 70, 24 73 (2005). Thus, assuming that Log Cabin Republicans lacked standing at 25 some point between early September 2005 and April 28, 2006, it still may 26 maintain its claims now. 27 28
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1 2 A. 3
III. EVIDENCE PRESENTED AT TRIAL Plaintiff's Burden on a Facial Challenge In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court
4 held a plaintiff challenging the validity of a law on its face must establish that 5 "no set of circumstances exists under which the Act would be valid." Id. at 6 745. The defendants in Salerno were detained pending trial under the 7 provisions of the Bail Reform Act; they challenged the Act, on its face, 8 claiming it unconstitutionally violated the Fifth and Eighth Amendments. 9 More recently, in Washington State Grange v. Washington State Republican 10 Party, 552 U.S. 442 (2008), the Supreme Court noted the criticisms leveled at 11 the Salerno standard and recognized an alternative the test as follows: "a 12 facial challenge must fail where the statute has a 'plainly legitimate sweep.'" 13 Id. at 449 (citing Washington v. Glucksberg, 521 U.S. 702, 739-740 & n.7 14 (1997) (Stevens, J., concurring)); see also United States v. Stevens, 559 U.S. 15 ___, ___, 130 S. Ct. 1577, 1587 (2010) (citing Glucksberg and noting the 16 existence of two standards for facial challenges outside the First Amendment 17 context). 18 19 The Court considers the evidence presented at trial in this facial 20 challenge not for the purpose of considering any particular application of the 21 Don't Ask, Don't Tell Act, but rather for the permissible purposes described in 22 Section III(B) below. (See infra Section III(B).) Plaintiff's evidence, as 23 described below, amply illustrates that the Act does not have a "plainly 24 legitimate sweep." Rather, Plaintiff has proven that the Act captures within its 25 overreaching grasp such activities as private correspondence between 26 servicemembers and their family members and friends, and conversations 27 between servicemembers about their daily off-duty activities. Plaintiff also 28
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1 has proven that the Act prevents servicemembers from reporting violations of 2 military ethical and conduct codes, even in outrageous instances, for fear of 3 retaliatory discharge. All of these examples, as well as others contained in 4 the evidence described below, reveal that Plaintiff has met its burden of 5 showing that the Act does not have a "plainly legitimate sweep." 6 7 Finally, the Court notes Defendants' reliance on Salerno and its 8 progeny, particularly Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), in urging the 9 Court to reject Log Cabin's facial challenge. (Defs.' Mem. Cont. Fact & Law at 10 5; Trial Tr. 1670:14-21-1671:23, 1684:12-14, July 23, 2010.) In Cook, the 11 First Circuit reasoned a facial challenge the Don't Ask, Don't Tell Act failed 12 because Lawrence "made abundantly clear that there are many types of 13 sexual activity that are beyond the reach of that opinion," and "the Act 14 includes such other types of sexual activity" because it "provides for the 15 [discharge] of a service person who engages in a public homosexual act or 16 who coerces another person to engage in a homosexual act." 528 F.3d at 56 17 (citing Lawrence, 539 U.S. at 578). 18 19 The Court is not bound to follow this out-of-Circuit authority, and in any 20 event finds the logic of Cook unpersuasive. First, Cook employed the 21 formulation from Salerno rather than the Supreme Court's more recent 22 articulation of the test for facial challenges set forth in Washington State 23 Grange. Furthermore, the examples the Cook court cited as grounds for 24 discharge "under the Act" actually are bases for discharge of any 25 servicemember, whether the conduct in question is homosexual or 26 heterosexual. In fact, the Cook decision provides no citation to any provision 27 28
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1 of the Don't Ask, Don't Tell Act specifically listing either of its examples as 2 grounds for discharge under that legislation. 3 4 B. 5 Evidence Properly Considered on a Facial Challenge Defendants asserted relevance (and often other) objections to nearly
6 every exhibit Plaintiff sought to introduce into evidence during trial, as well as 7 to nearly all the testimonial evidence offered. According to Defendants, 8 because Plaintiff challenges the constitutionality of the statute on its face, 9 rather than challenging its application, the only evidence the Court should 10 indeed may consider, is the statute itself and the bare legislative history; 11 thus, according to Defendants, all other evidence is irrelevant.6 12 13 Defendants further contend that while examining the legislative record, 14 the Court must not pay heed to any illegitimate motivations on the part of the 15 enacting lawmakers. Defendants cite several cases as authority for these 16 assertions, beginning with United States v. O'Brien, 391 U.S. 367 (1968). In 17 O'Brien, the government charged and convicted the defendant for burning his 18 draft card; the defendant contended the law under which he was prosecuted 19 was unconstitutional because Congress enacted it for the unlawful purpose of 20 suppressing speech. Id. at 383. The Supreme Court rejected this argument, 21 holding "under settled principles the purpose of Congress, as O'Brien uses 22 that term, is not a basis for declaring this legislation unconstitutional. It is a 23 familiar principle of constitutional law that this Court will not strike down an 24 25 26 Defendants maintained this position in their pretrial submissions as well. (See Defs.' Mem. Cont. Fact & Law at 9-10 ("the only appropriate 27 material to consider with respect to plaintiff's due process claim is the statute 28 and its findings, as well as the statute's legislative history . . . .").)
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1 otherwise constitutional statute on the basis of an alleged illicit legislative 2 motive." Id. 3 4 In part, the O'Brien Court founded its reasoning on the difficulty of 5 discerning a unified legislative "motive" underlying any given enactment: 6 "What motivates one legislator to make a speech about a statute is not 7 necessarily what motivates scores of others to enact it . . . ." Id. at 384. 8 Thus, O'Brien instructs that when "a statute . . . is, under well-settled criteria, 9 constitutional on its face," a court should not void the law based on 10 statements by individual legislators. Id. 11 12 O'Brien does not stand for the proposition urged by Defendants, 13 however, that when deciding whether a challenged law "is, under well-settled 14 criteria, constitutional on its face," this Court should limit itself to examining 15 only the statute's legislative history. In fact, in the O'Brien decision the 16 Supreme Court specifically pointed to two cases, Grosjean v. American Press 17 Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot, 364 U.S. 339 (1960), 18 noting that they "stand, not for the proposition that legislative motive is a 19 proper basis for declaring a statute unconstitutional, but that the inevitable 20 effect of a statute on its face may render it unconstitutional." O'Brien, 391 21 U.S. at 394 (emphasis added). In both Grosjean and Gomillion, the Court 22 noted, the purpose of the law was irrelevant "because [of] the inevitable effect 23 the necessary scope and operation." Id. at 385 (citations omitted). 24 Therefore, under these authorities, the court may admit and examine 25 evidence to determine the "scope and operation" of a challenged statute; 26 nothing in O'Brien, Grosjean, or Gomillion limits the Court's discretion to 27 consider evidence beyond the legislative history. 28
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Defendants also cite City of Las Vegas v. Foley, 747 F.2d 1294 (9th
2 Cir. 1984) as support for their position regarding the inadmissibility of 3 Plaintiff's evidence. Foley arose out of a discovery dispute in a facial 4 constitutional challenge to a Las Vegas zoning ordinance restricting the 5 location of "sexually oriented businesses." Id. at 1296. One of the affected 6 businesses sought to depose city officials regarding their motives in enacting 7 the ordinance; after the city failed in its efforts to obtain a protective order 8 from the District Court, it sought mandamus relief from the Ninth Circuit Court 9 of Appeals. Id. 10 11 The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged 12 illicit legislative motive," and relying on O'Brien, granted the writ, directing the 13 district court to issue a protective order. Id. at 1299. In rejecting the 14 arguments of the party seeking to depose the legislators, the Foley court 15 described the following types of evidence appropriately considered by a court 16 asked to determine a First Amendment challenge: 17 18 19 20 21 22 23 24 25 26 27 28 objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of the proceedings. Foley, 747 F.2d at 1297 (citations omitted). And finally, the Ninth Circuit noted, "basic analysis under the First Amendment . . . has not turned on the motives of the legislators, but on the effect of the regulation." Id. at 1298 (emphasis added). As Defendants correctly point out, these authorities do hold that isolated (and in this case, sometimes inflammatory) statements of Senators and House members during the Don't Ask, Don't Tell Act legislative hearings should not be considered by the Court. Nevertheless, this does not affect,
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1 much less eviscerate, the language in the authorities cited above that 2 Defendants would have the Court ignore, holding that a court deciding a 3 facial challenge can and should consider evidence beyond the legislative 4 history, including evidence regarding the effect of the challenged statute. 5 6 Finally, the case now before the Court includes a facial challenge on 7 substantive due process as well as First Amendment grounds. Therefore, it 8 should be noted that although the authorities discussed above dealt with 9 evidence properly considered by courts in resolving First Amendment facial 10 challenges, their holdings regarding the admissibility of broad categories of 11 testimonial and documentary evidence are echoed in the authorities 12 considering facial challenges on due process grounds. See, e.g., Lawrence 13 v. Texas, 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993); 14 Tucson Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los 15 Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see 16 generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009). 17 18 In Lawrence, petitioners pled nolo contendere to charges under a 19 Texas statute forbidding certain sexual acts between persons of the same 20 sex. They then raised a facial challenge to the statute's constitutionality 21 under the Due Process and Equal Protection clauses of the Fourteenth 22 Amendment. In reaching its decision that the Texas statute indeed was 23 unconstitutional, the Supreme Court's majority reviewed at length the history 24 of the common law prohibiting sodomy or regulating homosexuality, the effect 25 of the statute ("The stigma this criminal statute imposes, moreover, is not 26 trivial . . . . We are advised that if Texas convicted an adult for private 27 consensual homosexual conduct under the statute here in question the 28
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1 convicted person would come within the registration laws of at least four 2 States were he or she to be subject to their jurisdiction. . . ."), facts 3 surrounding enactment of the statute, and comparison with other laws. 4 Lawrence, 539 U.S. at 567-79. 5 6 Accordingly, the following discussion of Plaintiff's substantive due 7 process and First Amendment challenges to the Act refers to evidence 8 properly adduced by Log Cabin Republicans and admitted at trial. (As noted 9 above, apart from the Act itself and its legislative history, Defendants 10 admitted no evidence and produced no witnesses.) 11 12 C. 13 14 Lay Witness Testimony 1. Michael Almy Michael Almy served for thirteen years as a commissioned officer in the
15 United States Air Force, finishing his service as a major. (Trial Tr. 726:2116 727:11, 728:11-12, July 16, 2010.) Like several other witnesses, he came 17 from a family with a heritage of military service; his father retired as a colonel 18 in the Air Force, and two uncles served as career military officers as well. 19 (Trial Tr. 728:13-22, July 16, 2010.) 20 21 Almy entered active duty in 1993, after obtaining an undergraduate 22 degree in Information Technology while serving in the Army ROTC program. 23 He did not self-identify as a gay man until a few years later. (Trial Tr. 726:2324 727:2, 819:3-12, July 16, 2010.) After that, he testified, the Don't Ask, Don't 25 Tell Act created a natural barrier between himself and his colleagues, as he 26 could not reveal or discuss his personal life with others. (Trial Tr. 820:627 821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to 28
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1 socialize when off duty, he could not join them. (Trial Tr. 821:19-822:9, July 2 16, 2010.) All of this may have contributed to creating an aura of suspicion 3 about him, and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.) 4 5 Almy's modest demeanor as a witness and matter-of-fact recitation of 6 his service record did not disguise his impressive career in the Air Force. 7 Almy was deployed three times to Saudi Arabia and helped enforce the 8 Southern "no fly" zone over Iraq. Almy set up new communications bases 9 throughout the theaters in Jordan, Saudi Arabia, and Iraq, and was deployed 10 in Saudi Arabia, serving in the Communications Directorate, during the 11 invasion of Iraq in 2003. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 12 2010.) In 2003, after returning from his third deployment to Saudi Arabia, 13 Almy was promoted to the rank of major and accepted a position as the Chief 14 of Maintenance for the 606th Air Control Squadron in Spangdahlem, 15 Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy commanded 16 approximately 180 men in the Maintenance Directorate. (Trial Tr. 751:21-22, 17 753:7-11, July 16, 2010.) The three flights7 in the Maintenance Directorate 18 under his command in the 606th Air Control Squadron deployed to Iraq in 19 September 2004. His squadron was responsible for maintaining and 20 controlling the airspace during the invasion of Fallujah, Iraq, and he was 21 responsible for maintaining control over the vast majority of Iraqi airspace, 22 including Kirkuk, as well as maintaining all satellite links and voice and data 23 communications. (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at 24 Balad Air Base, his flight experienced frequent mortar attacks "usually 25 several times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.) 26 27 A "flight" is the Air Force term for a group of airmen, comparable to a 28 "unit" in the Army. (Trial Tr. 1335:10-12, July 21, 2010.)
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After Almy completed his third deployment to Iraq in January 2005,
2 someone began using the same computer Almy had used while deployed; 3 that person searched Major Almy's private electronic mail message ("e-mail") 4 files without his knowledge or permission. The search included a folder of 5 Major Almy's personal e-mail messages,8 sent to his friends and family 6 members, and read messages, including at least one message to a man 7 discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16, 8 2010.) Almy thought the privacy of his messages was protected; he was very 9 knowledgeable about the military's policy regarding the privacy of e-mail 10 accounts because of his responsibility for information systems. (Trial Tr. 11 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He knew, for example, 12 that according to Air Force policy, e-mail accounts could not be searched 13 unless authorized by proper legal authority or a squadron commander or 14 higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16, 15 2010.) 16 17 Almy only learned his private e-mail had been searched when he 18 returned to Germany and his commanding officer confronted him with the 19 messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit 20 he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At 21 the end of the meeting, Almy was relieved of his duties, and his commanding 22 officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15, 23 July 16, 2010.) Almy had attained one of the highest level security 24 25 According to Major Almy's uncontradicted testimony on this point, the 26 Air Force, "for morale purposes," allows servicemembers deployed in combat zones to use their government e-mail account for personal e-mail. (Trial Tr. 27 767:3-18, 794:6-15, 796:6-798:4, July 16, 2010.) Almy separated the personal e-mail he received in his government e-mail account into a folder 28 titled "Friends." (Trial Tr. 769:20-770:15, July 16, 2010.)
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1 clearances available for military personnel, "top secret SCI9 clearance;" 2 approximately three months after Almy was relieved of his duties, his security 3 clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.) 4 5 Initially, Almy contested his discharge, as he felt he had not violated the 6 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military 7 he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's 8 understanding was that his discharge was based solely on the e-mail 9 discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.) 10 Accordingly, Almy invoked his right to an administrative hearing and solicited 11 letters of support from those who had worked with him in the Air Force. (Trial 12 Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such 13 a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.) Colonel Paul 14 Trahan, US Army (Ret.), wrote: "My view is that Major Almy has been, and 15 will continue to be an excellent officer. As a former Commander and 16 Inspector General I am well aware of the specifics of the Homosexual 17 Conduct Policy. To my knowledge, Major Almy is not in violation of any of 18 the provisions of the policy. To the contrary, it appears that in prosecuting 19 the case against Major Almy, the USAF may have violated the 'Don't Ask, 20 Don't Tell Policy,' the Electronic Privacy Act and Presidential directives 21 regarding the suspension of security clearances." (Trial Ex. 113 [Character 22 Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].) 23 24 Captain Timothy Higgins wrote about Almy: "Of the four maintenance 25 directorate chiefs I have worked with at the 606th, Major Almy is by far the 26 finest. During his tenure as the [director of logistics], he had maintenance 27 28
9
"SCI" means "Sensitive Compartmented Information."

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1 training at the highest levels seen to date . . . . His troops respected him 2 because they believed he had their best interests at heart." (Trial Ex. 117 3 [Character Reference Letter from Timothy J. Higgins, Capt. USAF].) 4 5 Those who served under Almy wrote equally strong praise: "I can say 6 without reservation that Maj. Almy was the best supervisor I have ever had." 7 (Trial Ex. 120 [Character Reference Letter from Rahsul J. Freeman, 1st Lt., 8 USAF]); "I was deployed with him during the NATO Exercise CLEAN 9 HUNTER 2004. His leadership was key to our successful completion of the 10 mission. He was well liked and respected by the enlisted personnel in the 11 unit." (Trial Ex. 122 [Character Reference Letter from Leslie D. McElya, 12 SMSgt, USAF (Ret.)].) Almy's commanding officer while his discharge 13 proceedings were pending, Lt. Col. Jeffrey B. Kromer, wrote that he was 14 convinced "the Air Force, its personnel, mission and tradition remains 15 unchanged and unharmed despite his alleged [violations of the Don't Ask, 16 Don't Tell Act]." (Trial Ex. 114.) 17 18 During the course of Almy's discharge proceedings, he was relieved of 19 his command, but remained at Spangdahlem Air Base performing "ad hoc" 20 duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy testified he 21 observed the effect his abrupt removal from his duties had on his former unit: 22 the maintenance, availability, and readiness of the equipment to meet the 23 mission declined. (Trial Tr. 813:19-24, 815:2-18, July 16, 2010.) One officer 24 in the 606th Air Control Squadron observed that the squadron "fell apart" 25 after Major Almy was relieved of his duties, illustrating "how important Maj. 26 Almy was[,] not only to the mission but to his troops." (Trial Ex. 121 27 28
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1 [Character Reference Letter from Bryan M. Zollinger, 1st Lt. USAF, 606th Air 2 Control Squadron].) 3 4 After sixteen months, Almy agreed to drop his request for an 5 administrative hearing and to accept an honorable discharge. He testified his 6 reasons for doing so were the risks of a less-than-honorable discharge would 7 have had on his ability to obtain a civilian job and on his retirement benefits, 8 as well as his own exhausted emotional state. (Trial Tr. 798:8-799:13, July 9 16, 2010.) Almy refused to sign his official discharge papers, however, 10 because they listed the reason for discharge as admitted homosexuality. 11 (See Trial Ex. 112; Trial Tr. 800:1-801:20, July 16, 2010.) 12 13 Major Almy received many awards and honors during his service in Air 14 Force. For example, while serving at Tinker Air Force Base in the late 1990s 15 with the Third Combat Communications Group, he was selected as "Officer of 16 the Year," chosen as the top performer among his peers for "exemplary 17 leadership, dedication to the mission, and going above and beyond the call of 18 duty." (Trial Tr. 741:1-11, July 16, 2010.) In 2001, he was one of six Air 19 Force officers chosen to attend the residential training program for officers at 20 the Marine Corps Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005 21 he was awarded the Lt. General Leo Marquez Award, which is given to the 22 Top Air Force Communications Officer serving in Europe. (Trial Tr. 760:823 761:1, July 16, 2010.) Although Almy had been relieved of command, during 24 the pendency of the discharge proceedings, Colonel Goldfein, Almy's wing 25 commander, recommended that Almy be promoted to lieutenant colonel. 26 (Trial Tr. 816:19-818:1, July 16, 2010.) 27 28
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Almy testified that if the Act were no longer in effect, he "wouldn't
2 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.) The Court 3 found Almy a credible, candid, and forthright witness. 4 5 6 2. Joseph Rocha Joseph Rocha enlisted in the United States Navy on April 27, 2004, his
7 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like 8 Major Almy's, had a tradition of military service, and the September 11, 2001, 9 attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He 10 wanted to be an officer in the United States Marine Corps, but was not 11 admitted to the Naval Academy directly out of high school; so he hoped to 12 enter Officer Training School through diligence as an enlisted man. (Trial Tr. 13 473:24-474:24, July 15, 2010.) 14 15 After successfully completing basic training, he was promoted to 16 seaman apprentice and received further training in counter-terrorism and 17 force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered 18 for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15, 19 2010.) Once he arrived at the Naval Support base there, Rocha sought out 20 the base's canine handler position because he wanted to specialize in 21 becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.) 22 23 The canine group is a very elite and competitive unit, for which 24 qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha 25 volunteered his off-duty time to earn the qualifications to interview and be 26 tested for a kennel-support assignment; during this time, his interactions with 27 members of the canine unit were limited to one or two handlers on the night 28
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1 shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.) 2 Eventually, Rocha took and passed oral and written examinations with Chief 3 Petty Officer Toussaint, the canine group's commanding officer; Rocha met 4 the other qualifications and received an assignment in kennel support. (Trial 5 Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs 6 who were trained to sniff and detect explosives and explosive devices were 7 clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.) 8 9 At the same time, Rocha voluntarily participated in additional physical 10 training exercises with members of the Marine Corps, such as martial arts 11 and combat operations training, in the belief this eventually would improve his 12 chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July 13 15, 2010.) As Rocha aspired to become a Marine officer, after receiving 14 permission through the Marine chain of command, Rocha began "more 15 formal training," eventually earning martial arts, combat, and swimming 16 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.) 17 18 Once assigned as kennel support to the canine unit and under Chief 19 Petty Officer Toussaint's command, Rocha was hazed and harassed 20 constantly, to an unconscionable degree and in shocking fashion. When the 21 eighteen-year-old Rocha declined to participate in the unit's practice of 22 visiting prostitutes, he was taunted, asked if he was a "faggot," and told to 23 prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:1824 487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to 25 the others in the unit, and others in the unit referred to him in a similar 26 fashion. (Trial Tr. 486:11-17, July 15, 2010.) When Rocha refused to answer 27 the questions from Toussaint and others in the unit about his sexuality, "it 28
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1 became a frenzy," in his words, and his superiors in the canine unit would 2 gather around him, simulate sexual positions, and ask if the U.S. Marine 3 Corps soldiers performed various sexual acts on him. (Trial Tr. 487:204 488:7, 488:8-19, July 15, 2010.) Toussaint ordered all of the other men in the 5 unit to beat Rocha on the latter's nineteenth birthday. (Trial Tr. 485:16-486:3, 6 July 15, 2010.) 7 8 On one occasion that Rocha testified was especially dehumanizing, 9 Toussaint brought a dozen dogs to the Department of Defense Dependent 10 School for a bomb threat training exercise. For the "training exercise" he 11 instructed Rocha to simulate performing oral sex on another enlisted man, 12 Martinez, while Toussaint called out commands about how Rocha should 13 make the scenario appear more "queer." (Trial Tr. 490:13-492:19, July 15, 14 2010.) On another occasion, Toussaint had Rocha leashed like a dog, 15 paraded around the grounds in front of other soldiers, tied to a chair, force16 fed dog food, and left in a dog kennel covered with feces. (Trial Tr. 521:1117 522:1, July 15, 2010.) 18 19 Rocha testified that during this deployment in Bahrain, he never told 20 anyone he was gay because he wanted to comply with the Don't Ask, Don't 21 Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not report any of the 22 mistreatment, although he believed it violated Navy regulations. (Trial Tr. 23 488:20-489:14, July 15, 2010.) Toussaint was his commanding officer to 24 whom he normally would direct such a report and yet was either responsible 25 for the mistreatment or at least present when others engaged in it. (Id.) 26 Rocha's only other choice was to report the misconduct to the Inspector 27 General, which he did not believe was feasible. (Trial Tr. 499:6-16, 533:2-19, 28
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1 July 15, 2010.) He was eighteen to nineteen years old at the time, he 2 testified, far from home in Iraq, and all of the perpetrators were senior to him 3 in rank and led in the misconduct by his commanding officer. (Trial Tr. 4 488:20-489:14, July 15, 2010.) 5 6 Eventually Rocha received the assignment he had hoped for, returning 7 to the United States and reporting to Lackland Air Force Base for Military 8 Working Dog Training School. (Trial Tr. 499:20-500:1, July 15, 2010.) Once 9 he completed that training successfully, he returned to Bahrain, where he 10 found that although he was now a military dog handler himself, the same 11 atmosphere prevailed. (Trial Tr. 500:2-6, 16-18, July 15, 2010.) A new petty 12 officer had joined the unit, Petty Officer Wilburn, who declared openly that 13 Rocha was "everything he hated: liberal, [Roman] Catholic, and gay." (Trial 14 Tr. 501:19-502:11, July 15, 2010.) Wilburn trailed Rocha regularly as Rocha 15 tried to carry out his duties, taunting and harassing him. Rocha wrote 16 Wilburn a letter complaining about his conduct; in response, Wilburn left an 17 image of two men engaging in homosexual activity on Rocha's computer with 18 the message that if Rocha complained, "no one will care." (Trial Tr. 502:1219 504:5, July 15, 2010.) 20 21 When the Navy undertook an investigation of Toussaint's command 22 (apparently unmotivated by anything Rocha said or did), Rocha was 23 questioned by a captain but at first refused to answer any questions about 24 the mistreatment he was subjected to because he was afraid the 25 investigation might lead to questions about his sexual orientation and an 26 investigation on that subject. (Trial Tr. 519:16-520:10, July 15, 2010.) So 27 great was Rocha's fear of retaliation that he responded to an investigating 28
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1 officer's questions regarding Toussaint only after he was threatened with a 2 court martial if he refused to do so. (Trial Tr. 520:11-15, July 15, 2010.) 3 4 The Navy recognized Rocha with several awards during his service, 5 including the Navy and Marine Corps Achievement Medal for professional 6 achievement that exceeds expectations; the Global War on Terrorism 7 Expeditionary Medal; the National Defense Service Medal; and the Navy 8 Expert Rifleman Medal. (Trial Tr. 517:23-24, 518:7-8, 14-16, 519:4-7, July 9 15, 2010.) 10 11 Rocha received consistently excellent performance evaluations and 12 reviews while he served in the Navy. (See Trial Exs. 144, 145.) In Rocha's 13 review covering February 18, 2005, through July 15, 2005, his supervisors 14 including Toussaint described Rocha as "highly motivated" and a 15 "dedicated, extremely reliable performer who approaches every task with 16 enthusiasm." (Trial Ex. 145; Trial Tr. 494:23-497:13, July 15, 2010.) Rocha's 17 review also stated that he was a "proven performer" who was "highly 18 recommended for advancement." (Trial Tr. 496:16-497:3, July 15, 2010.) 19 Rocha's review recommended him for early promotion, which he received 20 shortly thereafter. (Trial Tr. 497:7-22, July 15, 2010.) Toussaint signed the 21 review as Rocha's senior reviewing military officer. (Trial Tr. 495:19-23, 22 498:4-6, July 15, 2010.) 23 24 Despite the ongoing harassment, Rocha continued to receive 25 exemplary reviews from his supervisors in the canine handling unit, including 26 Chief Petty Officer Toussaint. In a review covering July 16, 2005, through 27 June 16, 2006, then-Petty Officer Rocha is described as an "exceptionally 28
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1 outstanding young sailor whose performance, initiative, and immeasurable 2 energy make[ ] him a model Master-At-Arms." (Trial Ex. 144; Trial Tr. 3 504:23-506,19, July 15, 2010.) The review also noted that as a military 4 working dog handler, Rocha "flawlessly inspected [over 300 items of military 5 equipment,] increasing the force protection of NSA Bahrain." (Trial Ex. 144; 6 Trial Tr. 506:10-13, July 15, 2010.) As a result of his performance as a 7 military working dog handler, Rocha received the Navy and Marine Corps 8 Achievement Medal, which is given when an enlisted member exceeds 9 expectations. (Trial Tr. 517:15-518:6 July 15, 2010.) 10 11 In 2006, Rocha was chosen to receive the sole nomination from his 12 congressman for entrance into the U.S. Naval Academy, and Rocha chose to 13 apply to the Naval Academy's preparatory school in the event he was not 14 accepted directly into the Naval Academy.10 (Trial Tr. 506:1-4; 507:4-23, July 15 15, 2010.) As required, he received the nomination of everyone in his chain 16 of command for his entry into the academy and was accepted into the Naval 17 Academy's preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) He 18 described his acceptance as "the most significant moment of [his] life . . . , 19 [because acceptance into the Naval Academy] was the biggest dream [he'd] 20 ever had." (Trial Tr. 519:8-15, July 15, 2010.) 21 22 Once he enrolled at the preparatory academy, Rocha testified, he had 23 the opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-24, 24 July 15, 2010.) His instructors at the preparatory academy stressed the 25 According to Rocha's uncontradicted testimony on this point, the preparatory academy is designed to give extra academic support before entry 27 into the Naval Academy at Annapolis. (Trial Tr. 507:24-508:4, July 15, 2010.) Once admitted into the preparatory academy, acceptance into Annapolis is 28 guaranteed. (Trial Tr. 508:5-12, July 15, 2010.) 26
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1 nature of the fifteen- to twenty-year commitment expected of the officer 2 candidates. (Id.) Rocha understood he was gay when he enlisted in the 3 Navy at age eighteen, and had complied fully with the Don't Ask, Don't Tell 4 Act during his service, which he had thought would protect him. (Id.) After 5 reflecting on his experiences in the military working dog unit in Bahrain, 6 however, he decided it would be impossible for him to serve under the 7 restraints of the Act and fulfill the commitment expected of him. He then 8 decided to inform the Navy of his sexual orientation. (Trial Tr. 522:12-523:15, 9 July 15, 2010.) 10 11 He first sought permission from Ensign Reingelstein, his immediate 12 superior, to speak to the division commander; Ensign Reingelstein 13 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr. 14 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with his 15 commanding officer, Lt. Bonnieuto, who listened and told him to return to his 16 unit. (Trial Tr. 525:2-19, July 15, 2010.) Eventually, he received an 17 honorable discharge (see Trial Ex. 144), although before accepting Rocha's 18 statement, Lt. Bonnieuto tried to dissuade him, telling him he was being 19 considered for various honors and leadership positions at the preparatory 20 academy, including "battalion leadership." (Trial Tr. 525:21-526:6, 527:1321 528:22, 530:4-25, July 15, 2010.) 22 23 After his discharge, Rocha testified, he was diagnosed with service24 related disorders including "post-traumatic stress disorder with major 25 depression." (Trial Tr. 532:11-19, July 15, 2010.) He also testified he would 26 rejoin the Navy if the Don't Ask, Don't Tell Act was repealed. (Trial Tr. 27 533:24-534:2, July 15, 2010.) 28
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1 2 Even when recounting the mistreatment endured under Toussaint's 3 command, Rocha testified in an understated and sincere manner. The Court 4 found him a forthright and credible witness. 5 6 7 3. Jenny Kopfstein Jenny Kopfstein joined the United States Navy in 1995 when she (Trial
8 entered the U.S. Naval Academy; after graduation and further training, she 9 began serving on the combatant ship USS Shiloh on March 15, 2000. 11 as the ship's ordnance officer, which means she "was in charge of two 12 weapon systems and a division of [fifteen] sailors." (Trial Tr. 928:22-929:6, 13 July 16, 2010.) When assigned to be the "officer of the deck," she was "in 14 charge of whatever the ship happened to be doing at that time," and 15 coordinating the ship's training exercises of as many as twenty to thirty 16 sailors. (Trial Tr. 929:7-930:4, July 16, 2010.) 17 18 Once assigned to the USS Shiloh, she discovered the Act made it 19 impossible for her to answer candidly her shipmates' everyday questions 20 about such matters as how she spent weekends or leave time; to do so 21 would place her in violation of the Act as she would necessarily be revealing 22 the existence of her lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) 23 She testified that having to conceal information that typically was shared 24 made her feel as though other officers might distrust her, and that trust is 25 critical, especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 26 2010.) The Don't Ask, Don't Tell Act's prohibition on gay and lesbian 27 servicemembers revealing their sexual orientation affects trust among 28
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10 Tr. 919:12-14, 926:11-927:3, 927:12-19, July 16, 2010.) She was assigned
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1 shipmates, Kopfstein testified, because it causes people to "hide significant 2 parts of themselves," making it harder to establish the necessary sense of 3 teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.) When she overheard 4 homophobic comments and name-calling by her shipmates, she felt she 5 could neither report them nor confront the offenders, because to do either 6 might call unwanted suspicion upon her. (Trial Tr. 932:18-933:6, July 16, 7 2010.) 8 9 After serving for four months on the USS Shiloh, Kopfstein wrote a 10 letter to Captain Liggett, her commanding officer, stating she was a lesbian; 11 she wanted Captain Liggett to learn this from her rather than hear it from 12 another source. (Trial Tr. 933:7-13, 935:8-23, July 16, 2010; Trial Ex. 140 13 ["Memorandum of Record" from Kopfstein to Liggett dated July 17, 2000].) 14 Captain Liggett did not begin any discharge proceedings after Kopfstein 15 wrote this letter; he told her this was because he did not know her well and 16 thought she might have written the letter not because she was a lesbian, but 17 rather as an attempt to avoid deployment to the Arabian Gulf. (Trial Tr. 18 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.) Kopfstein continued 19 to serve and perform her duties in the same manner she had before writing, 20 but no longer lying or evading her shipmates' questions about her personal 21 life when asked. (Trial Tr. 950:25-951:11, July 20, 2010.) 22 23 When Liggett was leaving the USS Shiloh, to be replaced by Captain 24 Dewes, Captain Liggett not only invited her to the farewell party at his house 25 for the officers and their spouses, but made a point of telling her she was 26 welcome to bring "any guest she chose" with her. (Trial Tr. 955:12-956:8, 27 July 20, 2010.) Kopfstein and her partner attended the party, and Kopfstein 28
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1 testified that Captain Liggett and his wife welcomed them both warmly, as did 2 everyone else present. (Trial Tr. 956:12-25, July 20, 2010.) 3 4 During the abbreviated course of her service, the Navy awarded 5 Kopfstein many honors. For example, she was chosen to steer the USS 6 Shiloh in a ship steering competition; after the USS Shiloh won the 7 competition, she received a personal commendation from the Admiral who 8 also ceremonially "gave her his coin," a rare and prized tribute. (Trial Tr. 9 952:14-953:20, July 20, 2010.) When she returned from overseas 10 deployment after the bombing of the USS Cole off the coast of Yemen in 11 February 2001, the Navy awarded her the Sea Service Deployment Ribbon, 12 another commendation not routinely awarded. (Trial Tr. 949:11-22, 954:5-22, 13 July 20, 2010.) She also was awarded the Naval Expeditionary Medal after 14 the Yemen deployment. (Trial Tr. 955:5-11.) 15 16 On September 11, 2001, Kopfstein was the ordnance officer on the 17 USS Shiloh, in charge of all the weapons on the ship; the captain chose her 18 to be Officer of the Deck as the ship was assigned to defend the West Coast 19 against possible attack in the wake of the attacks on New York and the 20 Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20, 2010.) In October 21 2001, the Navy awarded her the Surface Warfare Officer pin, during a 22 ceremony where her captain took off his pin and pinned it on her chest. (Trial 23 Tr. 968:8-970:1, July 20, 2010.) 24 25 In evaluations completed before and after Kopfstein revealed her 26 sexual orientation, her commanding officers praised her as the USS Shiloh's 27 "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted ship 28
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1 handler," and the manager of "one of the best ship's led and organized 2 divisions," and a "[s]uperb [t]rainer" with a "great talent for teaching other 3 junior officers." (Trial Exs. 138, 139.) Captain W.E. Dewes, who was 4 Kopfstein's commanding officer at the time of her discharge, reported that 5 "[h]er sexual orientation has not disrupted good order and discipline onboard 6 USS SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy" who 7 "played an important role in enhancing the ship[']s strong reputation . . . . She 8 is a trusted Officer of the Deck and best ship handler among her peers. 9 Possesses an instinctive sense of relative motion a natural Seaman." (Trial 10 Ex. 139.) Captain Liggett testified at her discharge proceedings that "it would 11 be a shame for the service to lose her." (Trial Ex. 138.) 12 13 Kopfstein served in the Navy without concealing her sexual orientation 14 for two years and four months before her discharge; during that time, to her 15 knowledge, no one complained about the quality of her work or about being 16 assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8, 989:9-17, July 20, 17 2010.) She did not want to leave the Navy; she enjoyed the company of her 18 shipmates and found her work rewarding. (Trial Tr. 973:16-24, July 20, 19 2010.) Two captains under whom she served came to the Board of Inquiry to 20 testify on her behalf during her discharge proceedings. (Trial Tr. 974:221 977:11, July 20, 2010.) Nevertheless, she was discharged under the Don't 22 Ask, Don't Tell Act. (Id.) Although she appealed the decision to separate her 23 from the Navy, she did not prevail, and on October 31, 2002, she received an 24 honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.) She testified she 25 "absolutely" would rejoin the Navy if the Act is repealed. (Trial Tr. 980:16-22, 26 July 20, 2010.) 27 28
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The Court found Kopfstein an honest, candid, and believable witness;
2 she testified with modest understatement about her talent and achievements 3 as a Naval Officer and with obvious sincerity about her desire to rejoin to 4 fulfill her original commitment. 5 6 7 4. John Nicholson John Nicholson enlisted in the United States Army in May 2001. (Trial
8 Tr. 1135:6-12, July 20, 2010.) At the time he enlisted, he was fluent in 9 Spanish and "fairly proficient" in Italian and Portuguese. (Trial Tr. 1129:310 1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He underwent testing in 11 the military for foreign language aptitude and qualified for the most difficult 12 level of language training, Category 4. (Trial Tr. 1151:25-1152:3, 1154:4-9, 13 July 20, 2010.) While Nicholson served, and especially while he was in basic 14 training at Fort Benning, Georgia, he sometimes heard other soldiers make 15 sexist or homophobic slurs but was afraid to report these violations of military 16 conduct lest suspicion fall on him or he be retaliated against in a manner that 17 would lead to his discharge under the Act. (Trial Tr. 1138:1-1142:14, 1143:218 24, July 20, 2010.) Nicholson testified that the Don't Ask, Don't Tell Act 19 prevented him from being open and candid with others in his unit; it kept him 20 under a "cloud of fear," caused him to alter who he was, and made him lie 21 about who he was. (Trial Tr. 1194:17-1196:20, July 20, 2010.) 22 23 After completing his basic training, Nicholson was assigned to Fort 24 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr. 25 1143:25-1144:3, July 20, 2010.) While completing his intelligence training at 26 Fort Huachuca, Nicholson requested and received a reassignment to 27 counterintelligence, but remained at Fort Huachuca to complete the requisite 28
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1 counterintelligence training. (Trial Tr. 1148:5-14, July 20, 2010.) Nicholson 2 was waiting to start the next cycle of the counterintelligence course when 3 another servicemember started spreading a rumor that Nicholson was gay. 4 (Trial Tr. 1154:12-18, July 20, 2010.) 5 6 The rumor originated because, while off duty one day in January 2002, 7 Nicholson was writing a letter to a man with whom he had a relationship 8 before joining the Army; Nicholson was writing the letter in Portuguese to 9 prevent other servicemembers from reading it, because it contained 10 references that could reveal Nicholson's sexual orientation. (Trial Tr. 11 1134:10-23, 1161:10-1163:7, July 20, 2010.) Despite Nicholson's 12 precautions, another servicemember caught sight of the letter while chatting 13 with Nicholson. (Id.) After the two had been talking for a few minutes, 14 Nicholson realized she was one of the few persons he knew in the Army who 15 also could also read Portuguese; he gathered up the pages of his letter after 16 he noticed she appeared to be interested in it and reading it. (Id.; Trial Tr. 17 1163:8-18, July 20, 2010.) 18 19 After this incident, members of Nicholson's unit approached him and 20 told him to "be more careful" with regard to disclosure of his sexual 21 orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson sought his 22 platoon sergeant's assistance to stop the spread of the rumor, but instead the 23 sergeant informed the chain of command. (Trial Tr.1166:9-1167:19, 1170:924 15, July 20, 2010.) Nicholson's company commander summoned Nicholson 25 to his office and informed Nicholson that he was initiating discharge 26 proceedings. (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the 27 meeting, the platoon sergeant, who also had been present at the meeting, 28
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1 ordered Nicholson not to disclose why he was being discharged from the 2 Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.) 3 4 Nicholson testified that after the meeting with his company commander, 5 he was separated from his platoon and placed in a wing of the barracks 6 containing other servicemembers who were being discharged for reasons 7 such as drug use and failing to disclose criminal convictions before 8 enlistment. (Trial Tr. 1184:11-1185:11, July 20, 2010.) Two months later, 9 Nicholson was honorably discharged under the Don't Ask, Don't Tell Act. 10 (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20, 2010.) Nicholson testified 11 he "absolutely" would return to the Army if the Don't Ask, Don't Tell Act were 12 invalidated. (Trial Tr. 1209:4-5, July 21, 2010.) 13 14 16 17 18 5. Anthony Loverde Anthony Loverde joined the United States Air Force on February 13, As noted above with respect to his testimony on the standing issue, the 15 Court observed Nicholson to be credible and forthright.
19 2001, making a six-year commitment and hoping to use his G.I. Bill benefits 20 to obtain a post-graduate degree eventually. (Trial Tr. 1326:19-24, 1327:1621 1328:22, July 21, 2010.) After completing basic training, he received 22 specialized training in electronics and further training in calibrations, after 23 which he qualified at the journeyman level as a PMEL Precision 24 Measurement Equipment Laboratory technician. (Trial Tr. 1329:5-24, July 25 21, 2010.) A PMEL technician calibrates the accuracy, reliability, and 26 traceability of all types of equipment, including precision warfare equipment. 27 (Trial Tr. 1335:13-1336:5, July 21, 2010.) 28
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After completing training in December 2001, Loverde was stationed at
2 the Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.) 3 While at Ramstein, Loverde's flight was responsible for calibrating and 4 ensuring the accuracy and reliability of "various equipment used throughout 5 the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.) Loverde was 6 stationed at Ramstein for approximately three years. (Trial Tr. 1337:5-11, 7 July 21, 2010.) 8 9 After completing his tour at Ramstein Air Base, Loverde was stationed 10 at Edwards Air Force Base in California for approximately two years. (Trial 11 Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards, Loverde 12 was deployed to the Al Udeid Air Base in Qatar for four months, where he 13 supported Operations Iraqi Freedom and Enduring Freedom, as well as 14 missions taking place in the Horn of Africa. (Trial Tr. 1344:8-22, 1345:17-21, 15 July 21, 2010.) 16 17 During his stint in the Air Force, Loverde received frequent promotions; 18 three and one-half years after enlistment, for example, he was promoted to 19 staff sergeant, although the usual length of time to reach that rank is six 20 years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July 21, 2010.) After 21 serving his initial enlistment commitment, he reenlisted and received further 22 training to qualify as a loadmaster. (Trial Tr. 1352:25-1353:15, July 21, 23 2010.) In that capacity, he flew sixty-one combat missions in Iraq, where he 24 received two Air Medals. (Trial Tr. 1357:12-17, 1359:17-25, July 21, 2010.) 25 26 28
40
Loverde testified he was raised in a religious family and his church
27 taught that homosexuality was a sin; he had not realized he was gay at the
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1 time he joined the military at age twenty-one. (Trial Tr. 1327:16-17, 1330:132 25, July 21, 2010.) After he became aware of his sexual orientation, he 3 researched the Don't Ask, Don't Tell Act and found the Servicemembers' 4 Legal Defense Network website. (Trial Tr. 1332:13-1333:4, July 21, 2010.) 5 He understood that there were three grounds for discharge under the Act 6 marriage, conduct, and statements. (Trial Tr. 1332:17-1333:4, July 21, 7 2010.) He resolved to comply with the Act and remain in the Air Force. 8 9 The Air Force's core values are "Integrity First, Service Before Self, and 10 Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:20-25, July 11 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act effectively 12 made it impossible to honor the "Integrity First" value of the credo, because 13 on occasion, he felt forced to lie rather than violate the Act: Once, when with 14 other servicemembers in a bar off base in Germany, he refused the sexual 15 advances of a German civilian woman, and his colleagues asked him if he 16 was gay; on another occasion, a subordinate airman asked Loverde about 17 his sexual orientation. (Trial Tr. 1333:5-1334:16, 1349:24-1350:24, July 21, 18 2010.) 19 20 During the time he served as a loadmaster at the Ramstein Air Base in 21 Germany, he also testified that his flight chief often used offensive epithets to 22 refer to gays, as well as racist and sexist slurs. (Trial Tr. 1364:16-1365:25, 23 July 21, 2010.) Although Loverde was disturbed by this, he felt he had no 24 recourse and could not report it lest he draw attention to his sexual 25 orientation. Therefore, during the year he served under this officer, he never 26 made any formal or informal complaint about it. (Id.; Trial Tr. 1366:13-15, 27 July 21, 2010.) 28
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Loverde also testified that during his combat deployments and during
2 his assignments to bases in Germany and California, he faced the difficulty of 3 having to hide his personal life from his colleagues and avoiding 4 conversations with them about everyday life over meals, for example. (Trial 5 Tr. 1360:1-1361:17, July 21, 2010.) He became so skilled at avoiding his 6 fellow airmen that they nicknamed him "vapor" in recognition of his ability to 7 vanish when off duty. (Id.) 8 9 In April 2008, Loverde decided he was no longer willing to conceal his 10 sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time, he was 11 deployed to the Ali Al Saleem Air Base in Kuwait, and he delayed formally 12 telling his commanding officer of his decision until his return to Germany, lest 13 his entire flight unit's mission be disrupted and their return from deployment 14 delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July 21, 2010.) When he 15 returned to Germany from his deployment, Loverde wrote to his first 16 sergeant, stating Loverde wanted to speak to his commanding officer about 17 continuing to serve under the Don't Ask, Don't Tell Act, and that while he 18 wanted to continue serving in the Air Force, he could not do so under that 19 law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.) 20 21 Loverde's superiors recommended the Air Force retain him and 22 commended him for being "nothing less than an outstanding [non23 commissioned officer]" and "a strong asset" to the Air Force. (Trial Exs. 136, 24 137.) They praised him for demonstrating an "exceptional work ethic" and 25 "the highest level of military bearing, honest, and trustworthiness." (Id.) One 26 wrote: "If I ever had the opportunity to build my 'dream team' for work, I would 27 28
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1 take an entire crew of SSgt. Loverde over most other workers. . . ." (Trial Ex. 2 137.) 3 4 Nevertheless, in July 2008 the Air Force gave Loverde an honorable 5 discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134, 136, 6 137; Trial Tr. 1372:20-1377:20, July 21, 2010.) Loverde testified he would 7 join the Air Force again "without a doubt" if the Don't Ask, Don't Tell Act were 8 repealed. (Trial Tr. 1389:12-18, July 21, 2010.) The Court found Loverde a 9 candid and credible witness. 10 11 12 6. Steven Vossler Steven Vossler's family has a tradition of service in the Army extending
13 back to the Spanish-American War, and he enlisted in the United States 14 Army in November 2000, before graduating high school. (Trial Tr. 302:1915 303:5, July 14, 2010.) After basic training, the Army sent him to the Defense 16 Language Institute in Monterey, California, because of his exceptional 17 aptitude for foreign languages. (Trial Tr. 305:5-306:6, July 14, 2010.) He 18 described the close friendships he developed with other students at the 19 Language Institute, how in general it is important to have "good, open 20 relationships" and to discuss one's personal experiences and life with one's 21 colleagues in the military, and how, if one does not, it is perceived as an 22 attempt to distance one's self. (Trial Tr. 316:7-317:17, July 14, 2010.) 23 24 25 26 27 28
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Vossler met Jerrod Chaplowski, another soldier and Korean language
2 student, at the Monterey Language Institute, and became friends with him. 3 (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually he heard a rumor 4 that Chaplowski was gay. (Trial Tr. 318:22-320:24, July 14, 2010.) Vossler 5 testified that he was initially surprised at this, because "up until that point, [he] 6 still held some very stereotyping beliefs about gays and lesbians," but also 7 testified that as a heterosexual he had no difficulty sharing living quarters with 8 Chaplowski at any of the several Army bases where they were quartered 9 together; in fact, Chaplowski was a considerate roommate and it was always 10 a "great living situation." (Trial Tr. 319:16-17, 321:2-10, 327:1-11, 329:20-25, 11 July 14, 2010.) 12 13 The difficulty Vossler did encounter, he testified, was that when he and 14 Chaplowski were with other servicemembers and the conversation turned to 15 general subjects, he had to be excessively cautious lest he inadvertently cast 16 suspicion on Chaplowski and trigger an investigation under the Don't Ask, 17 Don't Tell Act. (See Trial Tr. 327:12-328:20, July 14, 2010.) For example, if 18 a group of soldiers was discussing their respective social activities over the 19 previous weekend, Vossler had to refer to Chaplowski's dinner companion as 20 "Stephanie" rather than "Steven;" even this small deception pained Vossler 21 as it violated the Army's code of honor. (Id.) Vossler also testified that he 22 observed that the Don't Ask, Don't Tell Act infringed Chaplowski's ability or 23 willingness to enforce the Army's policy banning offensive and discriminatory 24 language. (Trial Tr. 328:22-329:4, July 14, 2010.) Homophobic slurs, 25 epithets, and "humor" were commonplace and made Vossler uncomfortable; 26 he noticed that Chaplowski did not confront those who employed them, 27 although Vossler eventually did at times. (Trial Tr. 329:5-19, July 14, 2010.) 28
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Vossler chose not to reenlist in the active duty Army after his tour of
2 service expired, instead enlisting in the Army National Guard, which he left in 3 June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.) After leaving the 4 military, Vossler became a vocal advocate for the repeal of the Don't Ask, 5 Don't Tell Act because he believes the Act "doesn't seem in line with 6 American values" and he "do[es]n't understand how it's a law in [this] country" 7 because he perceives the Act to be discriminatory. (Trial Tr. 337:14-338:20, 8 July 14, 2010.) 9 10 12 13 14 IV. PLAINTIFF'S CHALLENGE UNDER THE DUE PROCESS CLAUSE Plaintiff claims the Don't Ask, Don't Tell Act violates its members' The Court found Vossler, in common with the other former military men 11 and women who testified at trial, a credible, candid, and compelling witness.
15 substantive due process rights, identified in Lawrence as rights associated 16 with the "autonomy of self that includes freedom of thought, belief, 17 expression, and certain intimate conduct." Lawrence, 539 U.S. at 562. (FAC 18 4, 38-43; Doc. No. 190 [Pl.'s Mem. Cont. Fact & Law] at 32-33.) 19 20 After taking office in 1992, President Clinton directed Secretary of 21 Defense Les Aspin to review his department's policy regarding homosexuals 22 serving in the military. Congress undertook its own review and, in 1993, 23 enacted the Don't Ask, Don't Tell Act, which regulated the service of 24 homosexual personnel in the United States military. See National Defense 25 Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat. 1547 26 571, 10 U.S.C. 654. 27 28
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The Act contains a series of findings that mirror the concerns of then-
2 chairman of the Joint Chiefs of Staff Colin Powell's testimony before 3 Congress: "military life is fundamentally different from civilian life;" "[s]uccess 4 in combat requires military units that are characterized by high morale, good 5 order and discipline, and unit cohesion;" and "the presence in the [A]rmed 6 [F]orces of persons who demonstrate a propensity of intent to engage in 7 homosexual acts would create an unacceptable risk to the high standards of 8 morale, good order and discipline and unit cohesion that are the essence of 9 military capability." See 10 U.S.C. 654(a); cf. S. Rep. No. 103-112 at 283 10 (1993). 11 12 13 14 A. 15 The Act The Act is codified at 10 U.S.C. 654; under 654(b), the Secretary of The Court begins by examining the provisions of the Act in more detail.
16 Defense is authorized to formulate the implementing regulations, which are 17 comprised of Department of Defense Directives 1332.14 (1993), 1332.30 18 (1997), and 1304.26 (1993). The Secretary of Defense recently changed the 19 implementing regulations. See Department of Defense Instruction ("DoDI") 20 1332.14 (2008) (incorporating March 29, 2010, changes); DoDI 1332.30 21 (2008) (incorporating March 29, 2010, changes). 22 23 The statute provides that a member of the Armed Forces "shall be 24 separated" from military service under one or more of the following 25 circumstances. First, a servicemember shall be discharged if he or she "has 26 engaged in, attempted to engage in, or solicited another to engage in a 27 homosexual act or acts." 10 U.S.C. 654(b)(1). Second, a servicemember 28
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1 shall be discharged if he or she "has stated that he or she is a homosexual11 2 or bisexual,12 or words to that effect . . . ." 10 U.S.C. 654 (b)(2). Finally, a 3 servicemember shall be discharged if he or she has married or attempted to 4 marry a person "known to be of the same biological sex." 10 U.S.C. 654 5 (b)(3). 6 7 The first two routes to discharge have escape clauses; that is, 8 discharges via either subsection (b)(1) or (b)(2) create a rebuttable 9 presumption which the servicemember may attempt to overcome. Through 10 this exception, a servicemember may rebut the presumption by 11 demonstrating the homosexual conduct which otherwise forms the basis for 12 the discharge under the Act meets five criteria, including inter alia, that it is a 13 "departure" from the servicemember's "usual and customary behavior," is 14 unlikely to recur, and was not accomplished by use of force, coercion or 15 intimidation. 10 U.S.C. 654 (b)(1)(A)-(E). 16 17 An escape route also applies to the second basis for discharge under 18 the Act, the making of a statement that one is a homosexual. It allows the 19 servicemember to rebut the presumption thus created by demonstrating that 20 "he or she is not a person who engages in, attempts to engage, or has a 21 propensity to engage in, or intends to engage in homosexual acts." 10 22 U.S.C. 654 (2). 23 24 "The term 'homosexual' means a person, regardless of sex, who 25 engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms 'gay' and 'lesbian'." 10 26 U.S.C. 654 (f)(1). "The term 'bisexual' means a person who engages in, attempts to engage in, has a propensity to engage, or intends to engages in homosexual 28 and heterosexual acts." 10 U.S.C. 654 (f)(2). 27
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1 B. 2
The Standard of Review As set out more fully in the July 6, 2010, Order, courts employ a
3 heightened standard of review when considering challenges to state actions 4 implicating fundamental rights. (July 6, 2010, Order at 6-9.) After the United 5 States Supreme Court's decision in Lawrence v. Texas, recognizing the 6 fundamental right to "an autonomy of self that includes freedom of thought, 7 belief, expression, and certain intimate conduct," 539 U.S. at 562, the Ninth 8 Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), held 9 the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and 10 private lives of homosexuals, in a manner that implicates the rights identified 11 in Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819. Thus, 12 in order for the Don't Ask, Don't Tell Act to survive Plaintiff's constitutional 13 challenge, it must "[1] advance an important governmental interest, [2] the 14 intrusion must significantly further that interest, and [3] the intrusion must be 15 necessary to further that interest." Id. Noting the Act "concerns the 16 management of the military, and judicial deference to . . . congressional 17 exercise of authority is at its apogee" in this context, Witt went on to decide 18 the Act advances an "important governmental interest." 527 F.3d at 821 19 (citations omitted). Accordingly, the Court's focus turns to the second and 20 third prongs. 21 22 C. 23 24 25 26 28
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The Act Does Not Significantly Further the Government's Interests in Military Readiness or Unit Cohesion 1. Defendants' Evidence: The Legislative History and the Statute Itself Defendants relied solely on the legislative history of the Act and the Act
27 itself in support of their position that the Act passes constitutional muster.
390
1 (Defs.' Mem. Cont. Fact & Law at 9-10.) Despite Defendants' continued 2 citation to the rational basis standard, the Court has ruled that after Witt, the 3 less deferential standard identified by the Ninth Circuit in that decision 4 applies. (See July 6, 2010, Order at 6-9.) In any event, careful review and 5 consideration of the Act itself and its legislative history reveals that this 6 evidence fails to satisfy Defendants' burden of proving that the Act, with its 7 attendant infringements on the fundamental rights of Plaintiff's members, 8 significantly furthers the Government's interest in military readiness or unit 9 cohesion. 10 11 Defendants did not specifically identify any item of legislative history 12 upon which they are relying in their Memorandum of Contentions of Law and 13 Fact; Defendants only identified specific items of the legislative history during 14 their closing argument at trial. These consist of the following: (1) the 15 Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report; and the 16 testimony of the following witnesses during hearings on the proposed Policy: 17 (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr. William Henderson; 18 and (7) General Colin Powell. Defendants did not include precise citations to 19 any portion of the above-referenced materials to support the constitutionality 20 of the Policy. Below is a summary of the seven items identified as they relate 21 to the Witt standard. 22 23 24 a. The Crittenden Report (Trial Ex. 4) The Crittenden Report, formally titled Report of the Board Appointed to
25 Prepare and Submit Recommendations to the Secretary of the Navy for the 26 Revision of Policies, Procedures, and Directives Dealing with Homosexuals, 27 was prepared by that Board in 1957. U.S. Navy Captain S.H. Crittenden 28
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1 chaired the Board, which made detailed recommendations regarding the 2 manner in which discipline against homosexual servicemembers should be 3 imposed, including circumstances in which discharge would be appropriate, 4 and whether discharge should be honorable or otherwise. The Report does 5 not, however, discuss the impact of the presence of homosexuals serving in 6 the Armed Forces on either military readiness or unit cohesion. Instead, the 7 Board assumed, without investigation, that the presence of homosexuals had 8 a negative effect and their exclusion was desirable, without elaborating on 9 the basis for those assumptions; the Report never made any findings 10 concerning the impact of homosexual servicemembers on military operations. 11 12 Accordingly, the Crittenden Report is not evidence that discharge of 13 homosexual servicemembers significantly furthers government interests in 14 military readiness or troop cohesion, or that discharge is necessary to those 15 interests. The Report, in fact, is silent on those interests. 16 17 It did conclude, however, that assumptions that homosexuals present 18 security risks and are unfit for military service are not well-supported by 19 evidence. The Report also generally found homosexuals to be no more or 20 less likely to be qualified to serve in the Armed Forces than heterosexuals 21 according to a number of measures. 22 23 24 b. The PERSEREC Report (Trial Ex. 5) The PERSEREC Report, formally titled "Nonconforming Sexual
25 Orientation in the Military and Society," was published in 1988 by the 26 Defense Personnel Security Research and Education Center and authored 27 by Theodore R. Sabin and Kenneth E. Karois. The Report is a broad survey 28
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1 of then-prevailing legal trends regarding treatment of homosexuals, scientific 2 views on homosexuality, and the history of social constructions of 3 "nonconforming" sexual behavior. The Report notes a legal trend toward 4 increasingly recognizing rights of homosexuals, a scientific trend toward 5 recognizing homosexuality both as biologically determined and as a normal 6 condition not necessarily indicating physical or mental disease, and a societal 7 trend towards increasing acceptance of homosexual behavior. 8 9 The PERSEREC Report generally dismisses traditional objections to 10 service by homosexuals in the military as abstract, intangible, and tradition11 bound. The Report cites no evidence that homosexual servicemembers 12 adversely affect military readiness or unit cohesion. The Report discusses 13 unit cohesion, but only to state that empirical research on the effect of 14 homosexual servicemembers on unit cohesion is important and necessary in 15 the future; it points to no existing empirical data. In general, the Report 16 suggests the military begin a transition towards acceptance of homosexual 17 servicemembers. 18 19 20 c. The Rand Report (Trial Ex. 8) The Rand Report was prepared by the Rand Corporation's National
21 Defense Research Institute in 1993 at the request of the Office of the 22 Secretary of Defense, Les Aspin. This summary of the Rand Report 23 discusses only "Section 10," entitled "What Is Known about Unit Cohesion 24 and Military Performance," as that is the sole section that bears on the issues 25 presented here. 26 27 28
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Foremost among the Rand Report's conclusions is that no empirical
2 evidence exists demonstrating the impact of an openly homosexual 3 servicemember on the cohesion of any military unit. In its discussion of unit 4 cohesion, the Report distinguished between social cohesion "the emotional 5 bonds of liking and friendship of the members of a unit" (Trial Tr. 872:3-4, 6 July 16, 2010) and task cohesion "a shared commitment to the group's 7 mission or task goals" (Trial Tr. 872:4-6, July 16, 2010); concluded that 8 according to public literature, only task cohesion has an even moderately 9 positive correlation with unit performance; and found after controlling for task 10 cohesion, social cohesion has almost no correlation to unit performance. The 11 Report further opines that an openly homosexual servicemember is more 12 likely to affect only social cohesion, rather than task cohesion, thus having 13 little to no impact on a unit's military performance. 14 15 The Report also concluded that merely assigning openly homosexual 16 servicemembers to a unit can decrease negative feelings towards 17 homosexuals, as fellow unit members tend to hold positive views of other 18 individuals simply because they have been arbitrarily assigned to the same 19 group. Moreover, contact with a group towards which negative feelings are 20 held tends to decrease negative feelings towards that group; Professor Belkin 21 described this phenomenon as "familiarity breeds tolerance." (Trial Tr. 297:922 19, July 14, 2010.) The Report opined that the relationship between negative 23 feelings toward a group would not necessarily translate into disruptive 24 behavior, and that to the extent it did so translate, such behavior could be 25 influenced and controlled by appropriate institutional attitudes and attitudes of 26 unit leaders. 27 28
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1 2
d.
Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255)
Dr. Korb testified before the Senate Armed Services Committee on
3 March 31, 1993 concerning the likely impact on unit cohesion if homosexuals 4 were permitted to serve openly. According to Dr. Korb, there was no 5 empirical research to support the view that homosexual servicemembers 6 would disrupt unit cohesion, and that such evidence could not be obtained 7 without integrating homosexuals into the military. Dr. Korb did concede, 8 however, that in the short run immediately following integration of 9 homosexual servicemembers, some negative effect on unit cohesion was 10 likely, but did not point to any evidence in support of this view. Dr. Korb 11 testified concerning the experiences of foreign militaries and domestic law 12 enforcement agencies that had integrated homosexual servicemembers, and 13 stated that their integration had not adversely affected unit cohesion or 14 performance in those entities. 15 16 17 18 e. Testimony of Dr. William Henderson (Trial Ex. 344 at 248) Dr. Henderson testified before the Senate Armed Services Committee
19 on March 31, 1993 concerning the significance of unit cohesion. Dr. 20 Henderson testified that the "human element" is the most important factor in 21 warfare and the only force that motivates a unit to fight rather than flee or 22 take cover. Dr. Henderson testified that creation of a cohesive unit is 23 "significantly influenced by broad cultural values, norms, and characteristics 24 that are the result of a common socialization process and basic agreement 25 among unit members about cultural values." Dr. Henderson testified that two 26 types of unit cohesion exist: horizontal cohesion whereby troops identify with 27 each other, and vertical cohesion whereby troops identify with their leaders. 28
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1 A member of the unit who refuses to conform to the unit's expectations will be 2 isolated, and will undermine the unit's cohesiveness. Based on the views of 3 servicemembers surveyed at that time, approximately 80% of whom opposed 4 integration of homosexuals, homosexual servicemembers were so far outside 5 the acceptable range of shared cultural values that they would not be 6 accepted within military units, and would undermine unit cohesion. Dr. 7 Henderson pointed to no specific empirical study supporting this assertion, 8 however, and measured his testimony by suggesting that a homosexual 9 servicemember who did not disclose his orientation would not disrupt unit 10 cohesion. 11 12 13 f. Testimony of Dr. David Marlowe (Trial Ex. 344 at 261) Dr. Marlowe testified before the Senate Armed Services Committee on
14 March 31, 1993, concerning the significance of unit cohesion. He testified 15 similarly to Dr. Henderson in his description of the importance of unit 16 cohesion and of the two types of cohesion, i.e., horizontal and vertical 17 cohesion. While openly acknowledging that in his scientific opinion, there 18 was no empirical data conclusively deciding the question, he opined that 19 openly serving homosexuals could undermine unit cohesion because 20 homosexuality would not be an accepted cultural value among the other 21 members of the unit. Dr. Marlowe qualified his opinion more than Dr. 22 Henderson, however, as Dr. Marlowe also opined that a homosexual 23 servicemember who did not "flaunt" his or her homosexuality, acted as a 24 soldier first and foremost, and did not openly discuss his or her 25 homosexuality would not undermine unit cohesion. Dr. Marlowe foresaw no 26 problem with such a person serving in the Armed Forces. 27 28
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1 2
g.
Testimony of General Colin Powell (Trial Ex. 344 at 707)
General Powell testified before the Senate Armed Services Committee
3 on July 20, 1993. General Powell expressed his general support for the 4 Policy as then proposed by President Clinton. General Powell testified that in 5 his opinion open homosexuality was incompatible with military service and 6 would undermine unit cohesion. General Powell opined that "behavior too far 7 away from the norm undercuts the cohesion of the group." He testified to his 8 belief that military training on tolerance could not overcome the innate 9 prejudices of heterosexual servicemembers. He also testified that the Policy 10 would improve military readiness, but only in that it settled the question of 11 whether or not homosexuals could serve in the military, as the public debate 12 had been a recent distraction to the military. His testimony implied that any 13 final resolution of the issue, regardless of substance, would improve military 14 readiness. 15 16 General Powell testified that despite the official position of 17 nondiscrimination towards homosexuals in the militaries of countries such as 18 Canada, Germany, Israel, and Sweden, practice does not always match 19 policy, and homosexuals are often subjected to discrimination in those 20 militaries. General Powell also rejected attempts to draw parallels between 21 exclusion of homosexuals and historical exclusion of African-Americans, 22 because "skin color is a benign nonbehavioral characteristic, while sexual 23 orientation is perhaps the most profound of human behavioral 24 characteristics." 25 26 27 28
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1 2 3
2.
Plaintiff's Evidence: Reports, Exhibits and Expert and Lay Testimony
When a governmental enactment encroaches on a fundamental right,
4 the state bears the burden of demonstrating the law's constitutionality. See 5 Witt, 527 F.3d at 819. Although Defendants bear this burden here and, as 6 described above, have relied unsuccessfully only on the statute itself and its 7 legislative history to meet it, Plaintiff introduced evidence demonstrating the 8 Act does not significantly advance the Government's interests in military 9 readiness or unit cohesion. The testimony of former servicemembers 10 provides ample evidence of the Act's effect on the fundamental rights of 11 homosexual members of the United States military. Their testimony also 12 demonstrates that the Act adversely affects the Government's interests in 13 military readiness and unit cohesion. In addition to the testimony from the lay 14 witnesses, Plaintiff introduced other evidence, from witnesses in such 15 specialties as national security policy, military sociology, military history, and 16 social psychology, on whether the Act furthered the Government's interests in 17 military readiness or unit cohesion. 18 19 20 21 a. Discharge of Qualified Servicemembers Despite Troop Shortages From 1993 through 2009, Defendants discharged, pursuant to the Act,
22 over 13,000 men and women serving in the United States Armed Forces. 23 During the years between 1994 through 2001, Defendants discharged at 24 least 7,856 servicemembers under the Act, according to a General 25 Accounting Office Report entitled "Financial Costs and Loss of Critical Skills." 26 (Trial Ex. 9 [2005 Government Accountability Office ("GAO") Report on the 27 "Financial Costs and Loss of Critical Skills Due to [the] DOD's Homosexual 28
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1 Conduct Policy"].) The combined branches of the Armed Forces discharged 2 the following numbers of servicemembers from 1994, the first full year after 3 adoption of the Don't Ask, Don't Tell Act, through the calendar year 2001: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 26 27 (Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers discharged).) 19
14 15 16 13
Year 1994 1995 1996 1997 1998 1999 2000 2001 Total discharged 1994 2001
Number of Servicemembers Discharged 61613 75714 85815 99716 1,14517 1,04318 1,21319 1,22720 7,856
(Trial Ex. 9, at 8.) (Id.)
(Trial Ex. 85, Defs.' Objections and Resp. to Pl's. First Set of Req. for Admis. ("RFA Resp.") No. 33; Trial Ex. 9, at 8.)
17 18
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42 25 (showing 1,034 servicemembers discharged).) (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42 (showing 1,213 servicemembers discharged).)
20 19
(Trial Ex. 85, RFA Resp. No. 37; Trial Ex. 9, at 8; but see id. at 42 28 (showing 1,227 servicemembers discharged).)
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Starting in 2002, after the U.S. began fighting in Afghanistan, the
2 number of servicemembers discharged under the Act fell sharply, despite the 3 greater raw number of military personnel. As but one example, in 2001, 4 Defendants discharged at least 1,217 servicemembers pursuant to the Don't 5 Ask, Don't Tell Act. In 2002, the number discharged under the Act fell to 885. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing 884 servicemembers discharged).)
22 21
Year 2002 2003 2004 2005 2006 2007 2008 2009 Total discharged 2002-2009
Number of Servicemembers Discharged 88521 77022 65323 72624 61225 62726 61927 27528 5,167
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing 22 769 servicemembers discharged).)
23 24 25 26 27 28
(Trial Ex. 85, RFA Resp. No. 40.) (Trial Ex. 85, RFA Resp. No. 41.) (Trial Ex. 85, RFA Resp. No. 42.) (Trial Ex. 85, RFA Resp. No. 43.) (Trial Ex. 85, RFA Resp. No. 44.) (Trial Ex. 85, RFA Resp. No. 45.)
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The decline in discharges after 2001, according to Dr. Nathaniel Frank,
2 illustrates that during wartime the military retains servicemembers known to 3 be homosexual, despite the Don't Ask, Don't Tell Act requiring discharge, 4 because of the heightened need for troops. (Trial Tr. 196:5-198:6, 257:215 258:6, July 13, 2010.) 6 7 8 9 b. Discharge of Servicemembers with Critically Needed Skills and Training Among those discharged were many with critically needed skills.
10 According to the Government's own data, many of those discharged pursuant 11 to the Act had education, training, or specialization in so-called "critical skills," 12 including Arabic, Chinese, Farsi, or Korean language fluency; military 13 intelligence; counterterrorism; weapons development; and medicine. (Trial 14 Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering 15 the military's readiness, the discharge of these service men and women had 16 a direct and deleterious effect on this governmental interest. 17 18 For example, relying on the 2005 GAO Report on the "Financial Costs 19 and Loss of Critical Skills Due to [the] DOD's Homosexual Conduct Policy" 20 (Trial Ex. 9), Professor Frank pointed out that through fiscal year 2003, 21 several hundred medical professionals had been discharged pursuant to the 22 Act, yet a 2003 Senate report described a lack of medical care for wounded 23 troops returning from the Arabian Gulf and the resulting negative impact on 24 physical health and troop morale. (Trial Tr. 258:10-259:2, July 15, 2010.) 25 And at the same time that more than one-hundred thousand U.S. troops were 26 deployed to serve in combat in Iraq and Afghanistan, several hundred 27 servicemembers with "critical" language skills, including many qualified as 28
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1 Farsi and Arabic speakers and interpreters, were discharged under the Act. 2 (Trial Ex. 9; Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010.) 3 4 5 c. The Act's Impact on Military Recruiting Dr. Lawrence Korb, currently a senior fellow at the Center for American
6 Progress, with an extraordinary background in military preparedness and 7 national security issues,29 including an appointment under President Ronald 8 Reagan as an Assistant Secretary in the Department of Defense, testified 9 before Congress in 2007 about the difficulty the military was experiencing in 10 finding and retaining enough qualified recruits. The crisis in recruiting 11 qualified candidates became particularly severe after combat began in 2001, 12 he testified. (Trial Tr. 1027:24-25, 1028:1-2, July 20, 2010.) 13 14 In general, successful military recruiting efforts come with a very high 15 price tag; Dr. Korb pointed to advertisements various branches of the Armed 16 Forces run during the televised Super Bowl football games as an example of 17 an effective but very costly recruiting tool. Successful recruiting includes not 18 only the costs for sending out military recruiters all around the country, he 19 testified, but also the costs of conducting medical and educational testing on 20 recruits as well as the expense of their basic training. The size of the 21 financial investment needed to prepare a servicemember for an operational 22 unit can reach "millions of dollars," Dr. Korb testified. (Trial Tr. 1028:1823 24 In addition to the appointments described above, Dr. Korb is on the 25 faculty at Georgetown University. He also has served as dean of the Graduate School of Public and International Affairs at the University of 26 Pittsburgh, on the Council for Foreign Relations, as Director of the Center for Public Policy Education at the Brookings Institution, and as Director for 27 Defense Policy Studies for the American Enterprise Institute. This is only a partial list of his appointments and service. (Trial Ex. 350.) The Court found 28 Dr. Korb an extraordinarily well-credentialed and powerfully credible witness.
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1 1029:13, July 20, 2010.) Citing a Pentagon study, he opined that for every 2 person discharged after ten years of service, six new servicemembers would 3 need to be recruited to recover the level of experience lost by that discharge. 4 (Trial Tr. 1029:6-23, July 20, 2010.) 5 6 With that background, Dr. Korb opined the Don't Ask, Don't Tell Act 7 negatively affects military recruiting in two ways: its existence discourages 8 those who would otherwise enlist from doing so, and many colleges and 9 universities will not permit military recruiting or Army ROTC programs on 10 campus because the Act's requirements violate their employment 11 nondiscrimination policies. (Trial Tr. 1030:12-21, July 20, 2010.) 12 13 Dr. Korb estimated that the military loses 5,000 men and women 14 annually due to the Don't Ask, Don't Tell Act, if one includes both those who 15 are discharged under it and those who decide not to re-enlist because of it. 16 He conceded, however, that it is very difficult to quantify the number of those 17 who decide not to enlist because of the Policy. (Trial Tr. 1030:1-10, July 20, 18 2010.) Professor Frank also testified on this subject, and based on data from 19 the U.S. Census, the UCLA School of Law Williams Institute, and other 20 sources, opined that if the Act were repealed, the military would gain 21 approximately 40,000 new recruits and approximately 4,000 members would 22 re-enlist every year rather than leave voluntarily. (Trial Tr. 205:6-17, July 13, 23 2010.) 24 25 The 2005 GAO Report estimated that over the ten-year period after 26 enactment of the Act, "it could have cost the [Department of Defense] about 27 $95 million in constant fiscal year 2004 dollars to recruit replacements for 28
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1 service members separated under the policy. Also the Navy, Air Force, and 2 Army estimated that the cost to train replacements for separated service 3 members by occupation was approximately $48.8 million, $16.6 million, and 4 $29.7 million, respectively." (Trial Ex. 85, RFA Resp. No. 21.) 5 6 7 d. Admission of Lesser Qualified Enlistees As discussed above, Defendants discharged over 13,000 members of
8 the Armed Forces under the Don't Ask, Don't Tell Act since 1993. (Trial Tr. 9 195:5-8, 203:21-204:5.) Plaintiff introduced evidence that while Defendants 10 continued to enforce the Act by discharging servicemembers under it albeit 11 in dramatically reduced numbers after 2001, they also began to admit more 12 convicted felons and misdemeanants into the Armed Forces, by granting so13 called "moral waivers"30 to the policy against such admissions. (Trial Tr. 14 199:1-17, July 13, 2010; see supra notes 13-28 and accompanying text.) 15 16 In addition to the increased numbers of convicted felons and 17 misdemeanants allowed to join the ranks of the military forces, Professor 18 Frank testified that increased numbers of recruits lacking the required level of 19 education and physical fitness were allowed to enlist because of troop 20 shortages during the years following 2001. (Trial Tr. 199:1-11, July 13, 21 2010.) Log Cabin's evidence went uncontradicted that those who are allowed 22 to enlist under a "moral waiver" are more likely to leave the service because 23 of misconduct and more likely to leave without fulfilling their service 24 commitment than others who joined the Armed Forces. (Trial Tr. 209:2-13, 25 26 "Moral waivers" are used to admit recruits who otherwise would not have been eligible for admission because of their criminal records, i.e., 27 convictions for felonies and serious misdemeanors, or admitted past 28 controlled substance abuse. (Trial Tr. 207:7-208:24, July 13, 2010.)
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30
404
1 July 13, 2010.) Dr. Korb testified that eventually the troop shortages after 2 2001 caused the U.S. Armed Forces to lower educational and physical 3 fitness entry standards as well as increase the number of "moral waivers" to 4 such an extent that, in his opinion, it became difficult for the military to carry 5 out its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same time, 6 discharging qualified servicemembers under the Don't Ask, Don't Tell Act 7 simply "does not make sense" in terms of military preparedness because, in 8 his words, the military is "getting rid of those who are qualified to serve and 9 admitting those who aren't." (Trial Tr. 1025:15-20, July 20, 2010.) 10 11 12 e. Other Effects of the Policy Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has
13 on military preparedness. He opined that in order for the military to perform 14 its mission successfully, it must mold persons from vastly different 15 backgrounds who join it into a united and task-oriented organization. He 16 described the military as a meritocracy, but testified that the Don't Ask, Don't 17 Tell Act detracts from the merit-based nature of the organization, because 18 discharges under the Act are not based on the servicemember's failure to 19 perform his or her duties properly, or on the effect of the soldier's presence 20 on the unit's morale or cohesion. (Trial Tr. 1031:2-1033:10, July 20, 2010.) 21 22 23 24 f. Decreased and Delayed Discharge of Suspected Violators of the Act LCR also produced evidence demonstrating that Defendants routinely
25 delayed the discharge of servicemembers suspected of violating the Act's 26 provisions until after they had completed their overseas deployments. In 27 other words, if Defendants began an investigation of a servicemember 28
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1 suspected of violating the Act, the investigation would be suspended if the 2 subject received deployment orders; not until he or she returned from combat 3 assuming this occurred, of course would the investigation be completed 4 and the servicemember discharged if found to have violated the Act. Thus, 5 Defendants deployed servicemembers under investigation for violating the 6 Act to combat missions or, if they were already so deployed, delayed the 7 completion of the investigation until the end of the deployment. (Trial Tr. 8 196:5-24, July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11, 9 188:13-190:9, Apr. 16, 2010.) 10 11 This evidence, in particular, directly undermines any contention that the 12 Act furthers the Government's purpose of military readiness, as it shows 13 Defendants continue to deploy gay and lesbian members of the military into 14 combat, waiting until they have returned before resolving the charges arising 15 out of the suspected homosexual conduct. If the warrior's suspected violation 16 of the Act created a threat to military readiness, to unit cohesion, or to any of 17 the other important Government objectives, it follows that Defendants would 18 not deploy him or her to combat before resolving the investigation. It defies 19 logic that the purposes of the Act could be served by suspending the 20 investigation during overseas deployments, only to discharge a 21 servicemember upon his or her return to a non-combat station. 22 23 Taken as a whole, the evidence introduced at trial shows that the effect 24 of the Act has been, not to advance the Government's interests of military 25 readiness and unit cohesion, much less to do so significantly, but to harm 26 that interest. The testimony demonstrated that since its enactment in 1993, 27 the Act has harmed efforts of the all-volunteer military to recruit during 28
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1 wartime. The Act has caused the discharge of servicemembers in 2 occupations identified as "critical" by the military, including medical 3 professionals and Arabic, Korean, and Farsi linguists. At the same time that 4 the Act has caused the discharge of over 13,000 members of the military, 5 including hundreds in critical occupations, the shortage of troops has caused 6 the military to permit enlistment of those who earlier would have been denied 7 entry because of their criminal records, their lack of education, or their lack of 8 physical fitness. 9 10 D. 11 The Act is Not Necessary to Advance the Government's Interests The Witt court held that to justify the infringement on the fundamental
12 rights identified in Lawrence, a defendant must satisfy both the requirement 13 that the Act "significantly furthers" the Government's interests and the 14 requirement that it is "necessary" to achieve them. To the extent that 15 Defendants have made a distinct argument here that the Act is necessary to 16 achieve the Government's significant interest, they have not met their burden 17 as to this prong of the Witt test, either. 18 19 20 1. Defendants' Admissions In fact, Defendants have admitted that, far from being necessary to
21 further significantly the Government's interest in military readiness, the Don't 22 Ask, Don't Tell Act actually undermines that interest. President Obama, the 23 Commander-in-Chief of the Armed Forces, stated on June 29, 2009: 24 "Don't Ask, Don't Tell" doesn't contribute to our national security . . . preventing patriotic Americans from serving their country weakens 25 our national security . . . . [R]eversing this policy [is] the right thing to do [and] is essential for our national security. 26 (Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.) President Obama also 27 stated, regarding the Act on October 10, 2009, "We cannot afford to cut from 28
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1 our ranks people with the critical skills we need to fight any more than we can 2 afford for our military's integrity to force those willing to do so into careers 3 encumbered and compromised by having to live a lie." (Trial Ex. 306; Trial 4 Ex. 85, RFA Resp. No. 12.) 5 6 Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed 7 these sentiments through a verified Twitter account, posted to the Joint 8 Chiefs of Staff website: "Stand by what I said [testifying in the U.S. Senate 9 Armed Services Committee on February 2, 2010]: Allowing homosexuals to 10 serve openly is the right thing to do. Comes down to integrity." (Trial Ex. 11 330.) 12 13 14 15 2. Defendants' Contention that the Act is Necessary to Protect Unit Cohesion and Privacy Defendants point to the Act's legislative history and prefatory findings
16 as evidence that the Policy is necessary to protect unit cohesion and 17 heterosexual servicemembers' privacy. In particular, they quote and rely on 18 General Colin Powell's statements in his testimony before Congress in 1993. 19 20 General Powell expressed his qualified support for the continued 21 service of gays and lesbians in the Armed Forces and the narrow nature of 22 his concerns. (Trial Ex. 344 [Policy Concerning Homosexuality in the Armed 23 Forces: Hearings Before the S. Comm. on Armed Servs., 103rd Cong. 24 (statement of General Colin Powell, Chairman, Joint Chiefs of Staff)] at 709). 25 He emphasized his concern that "active military service is not an everyday 26 job in an ordinary workplace . . . . There is often no escape from the military 27 environment for days, weeks and often months on end. We place unique 28
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1 demands and constraints upon our young men and women not the least of 2 which are bathing and sleeping in close quarters." (Id. at 762; 709 ("Our 3 concern has not been about homosexuals seducing heterosexuals or 4 heterosexuals attacking homosexuals . . . .").) 5 6 First, it must be noted that Plaintiff introduced uncontradicted testimony 7 that General Powell has changed his views since 1993 on the necessity of 8 the Policy and agrees with the current Commander-in-Chief that it should be 9 reviewed. (Trial Tr. 221:7-11, July 13, 2010.) 10 11 More importantly, however, Plaintiff produced powerful evidence 12 demonstrating that the Act is not necessary in order to further the 13 governmental interest that General Powell expressed, i.e., unit cohesion and 14 particularly the concern that cohesion might be eroded if openly homosexual 15 servicemembers shared close living quarters with heterosexuals. 16 17 Michael Almy, who during thirteen years of active service lived in 18 dozens of different types of military housing on at least three continents, 19 testified his quarters ranged from a villa in Eskan Village, Saudi Arabia, 20 where he and the others quartered there each had private bedrooms and 21 bathrooms, to a dormitory-type facility at the Prince Sultan Air Base in Saudi 22 Arabia, where at first he had a private room and bath until the troop build-up 23 before the invasion of Iraq led to several men sharing a room, with a private 24 bathroom that was used by only one person at a time, to temporary quarters 25 in a tent at Balad Air Base in Iraq shared by six to eight men who obtained 26 limited privacy by hanging up sheets. Almy testified that in his deployments 27 to Saudi Arabia and Iraq he was never quartered in housing that had open 28
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1 bay showers, nor did he ever see such housing for enlisted members or 2 officers. (Trial Tr. 748:3-750:25, July 16, 2010.) The typical arrangement in 3 Saudi Arabia was for enlisted servicemembers and officers to have the same 4 type of facilities, including bathroom and shower facilities; officers typically 5 did not have to share rooms, and enlisted personnel usually shared a 6 bedroom and bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Almy testified 7 that open bay showers are the exception in military quarters and the only 8 time he actually used one was during basic training in Fort Benning, Georgia, 9 in 1992. (Trial Tr. 759:12-19, July 16, 2010.) 10 11 Similarly, John Nicholson testified that while he was in basic training in 12 Fort Benning, the recruits slept in a large open room with sixty bunk beds and 13 shared a large communal bathroom with toilets in individual stalls and semi14 private showers. (Trial Tr. 1154:25-1155:15, July 20, 2010.) Anthony 15 Loverde testified that only during basic training was he housed in barracks 16 where open bay showers were the only option; he had access to single stall 17 shower facilities even when stationed at Bagram Air Base in Afghanistan and 18 at Balad Air Base in Iraq. (Trial Tr. 1378:3-15, 1385:18-1386:12, July 21, 19 2010.) 20 21 Other servicemembers confirmed this testimony. Stephen Vossler 22 testified regarding his living quarters while he served as an enlisted man in 23 the Army; he shared a "not spacious" bedroom and also a bathroom with a 24 roommate. (Trial Tr. 330:4-11, July 14, 2010.) Although Vossler learned his 25 roommate was gay, Vossler had no problems sharing quarters with him and 26 thought he was a good roommate. (Trial Tr. 329:20-330:21, July 14, 2010.) 27 28
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Professor Aaron Belkin confirmed this evidence in his testimony; his
2 research into military architecture revealed that apart from basic training sites 3 and service academies where there are open showers, servicemembers 4 usually have access to single stall showers. (Trial Tr. 617:21-619:1, July 15, 5 2010.) According to Professor Belkin, "the army, in recent years, has 6 implemented something called the one-plus-one barracks design standard. 7 What that means is that servicemembers are housed in an arrangement 8 where they each have their own bedroom and there is a bathroom between 9 the two bedrooms that they share." (Trial Tr. 618:8-13, July 15, 2010.) 10 Three-fourths of the troops quartered in combat zones in Afghanistan and 11 Iraq had access to single stall showers, according to his research. (Trial Tr. 12 626:3-8, July 15, 2010.) 13 14 Plaintiff's evidence regarding unit cohesion was equally plentiful and 15 persuasive. The testimony of both its lay and expert witnesses revealed that 16 the Act not only is unnecessary to further unit cohesion, but also harms the 17 Government's interest. 18 19 After Michael Almy was relieved of his command abruptly under the 20 Act, he witnessed firsthand what occurred when an unprepared junior officer 21 was forced to take over. He testified that "[t]he maintenance of the 22 equipment, the mission overall, the availability the up time of the 23 equipment, the availability of the equipment to meet the mission suffered" 24 and there was "a huge detrimental effect to the morale" of the troops he 25 commanded after he was relieved of his command. (Trial Tr. 813:21-25, 814: 26 1-6, July 16, 2010.) Almy testified, "Virtually every day on my base on 27 Spangdahlem, I would encounter one of my former troops who wanted me 28
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1 back on the job as their officer and leader." (Trial Tr. 814:2-6, July 16, 2010.) 2 His assessment was confirmed by another officer in the squadron, who wrote 3 that the squadron "fell apart" after Major Almy was relieved of his duties, 4 illustrating "how important Maj. Almy was[,] not only to the mission but to his 5 troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger, 6 1st Lt., USAF, 606th Air Control Squadron].) 7 8 Jenny Kopfstein's commanding officer wrote that she was a "hard 9 working and dedicated junior officer who excelled as an Officer of the Deck" 10 who "played an important role in enhancing the ship's strong reputation." 11 (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and Counseling Record]; 12 Trial Tr. 966:14-17.) He specifically noted that "[h]er sexual orientation has 13 not disrupted good order and discipline on board USS SHILOH." (Trial Ex. 14 139; Trial Tr. 966:23-24.) Kopfstein testified that after she stopped 15 concealing her homosexuality while serving on the USS Shiloh, she had 16 many positive responses, and the ability of her fellow crew members to trust 17 her improved, thus aiding the establishment of teamwork. (Trial Tr. 951:1018 11, 979:8-21, 25, 980:1, July 20, 2010.) 19 20 Anthony Loverde's superiors unquestionably felt that his discharge 21 pursuant to the Don't Ask, Don't Tell Act did not further the Government's 22 interest in unit cohesion. In recommending the Air Force retain Loverde, they 23 commended him for being "nothing less than an outstanding [non24 commissioned officer]" and "a strong asset" with "an exceptional work ethic" 25 and "the highest level of military bearing, honesty, and trustworthiness." 26 (Trial Exs. 136 [Letter from Michael Yakowenko, CM Sgt.], 137 Letter from 27 Richard Horn, SM Sgt.].) One wrote: "If I ever had the opportunity to build my 28
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1 'dream team' for work, I would take an entire crew of SSgt. Loverde over 2 most other workers . . . ." (Trial Ex. 137.) 3 4 Finally, Robert MacCoun, Professor of Law and Public Policy at the 5 University of California, Berkeley, and one of the contributors to the 1993 6 Rand Report on the Don't Ask, Don't Tell Act, testified regarding social and 7 task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.) 8 Professor MacCoun holds a Ph.D. in psychology from Michigan State 9 University, was a post-doctoral fellow in psychology and law at Northwestern 10 University, spent seven years as a behavioral scientist at the RAND 11 Corporation,31 and has a distinguished research and publication record. 12 (Trial Tr. 856:16-864:7, July 16, 2010.) The Court found his testimony cogent 13 and persuasive. 14 15 According to Professor MacCoun, the RAND working group concluded 16 that task cohesion was paramount; it was a more important predictor of 17 military performance than social cohesion, and service in the Armed Forces 18 by openly homosexual members was not seen as a serious threat to task 19 cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:21-25, 876:13-21, July 20 16, 2010.) Therefore, the recommendation to Secretary of Defense Les 21 Aspin from the RAND Corporation in the1993 Report was that sexual 22 orientation should not be viewed as germane to service in the military; the 23 1993 Report made various recommendations regarding the implementation 24 of this change. (Trial Ex. 8 [Sexual Orientation and U.S. Military Personnel 25 26 The RAND Corporation is a nonpartisan private nonprofit research corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16, 28 2010.) 27
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1 Policy: Options and Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16, 2 2010.) 3 4 Thus, the evidence at trial demonstrated that the Act does not further 5 significantly the Government's important interests in military readiness or unit 6 cohesion, nor is it necessary to further those interests. Defendants' 7 discharge of homosexual servicemembers pursuant to the Act not only has 8 declined precipitously since the United States began combat in Afghanistan 9 in 2001, but Defendants also delay individual enforcement of the Act while a 10 servicemember is deployed in a combat zone. If the presence of a 11 homosexual soldier in the Armed Forces were a threat to military readiness 12 or unit cohesion, it surely follows that in times of war it would be more urgent, 13 not less, to discharge him or her, and to do so with dispatch. The abrupt and 14 marked decline 50% from 2001 to 2002 and steadily thereafter in 15 Defendants' enforcement of the Act following the onset of combat in 16 Afghanistan and Iraq, and Defendants' practice of delaying investigation and 17 discharge until after combat deployment, demonstrate that the Act is not 18 necessary to further the Government's interest in military readiness. 19 20 In summary, Defendants have failed to satisfy their burden under the 21 Witt standard. They have not shown the Don't Ask, Don't Tell Policy 22 "significantly furthers" the Government's interests nor that it is "necessary" in 23 order to achieve those goals. Plaintiff has relied not just on the admissions 24 described above that the Act does not further military readiness, but also has 25 shown the following: 26 27 28
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
! by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness; ! by causing the discharge of otherwise qualified servicemembers with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness; ! by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness; ! Defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion; ! by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
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1 2 3 4 5
! the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest. The Don't Ask, Don't Tell Act infringes the fundamental rights of United
6 States servicemembers in many ways, some described above. The Act 7 denies homosexuals serving in the Armed Forces the right to enjoy "intimate 8 conduct" in their personal relationships. The Act denies them the right to 9 speak about their loved ones while serving their country in uniform; it 10 punishes them with discharge for writing a personal letter, in a foreign 11 language, to a person of the same sex with whom they shared an intimate 12 relationship before entering military service; it discharges them for including 13 information in a personal communication from which an unauthorized reader 14 might discern their homosexuality. In order to justify the encroachment on 15 these rights, Defendants faced the burden at trial of showing the Don't Ask, 16 Don't Tell Act was necessary to significantly further the Government's 17 important interests in military readiness and unit cohesion. Defendants failed 18 to meet that burden. Thus, Plaintiff is entitled to judgment in its favor on the 19 first claim in its First Amended Complaint for violation of the substantive due 20 process rights guaranteed under the Fifth Amendment. 21 22 23 V. PLAINTIFF'S FIRST AMENDMENT CHALLENGE TO THE ACT Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition 24 the Government for a redress of grievances. U.S. Const. amend. I. 25 26 27 28
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Plaintiff claims that the Don't Ask, Don't Tell Act violates its members'
2 First Amendment rights to these freedoms. (FAC 1, 6, 45-49; Pl.'s Mem. 3 Cont. Fact & Law at 32-33.) 4 5 A. 6 The Standard of Review in First Amendment Challenges Plaintiff challenges the Act as overbroad and as an unconstitutional
7 restriction on speech based on its content. (FAC 47; Pl.'s Mem. Cont. 8 Fact & Law at 35, 40.) 9 10 12 13 14 15 16 17 18 19 20 21 23 24 In Simon & Schuster, Inc. v. Members of New York State Crime Victims 25 Board, 502 U.S. 105 (1991), the Supreme Court considered whether New 26 York's "Son of Sam" law purporting to strip authors of profits gained from 27 books or other publications depicting their own criminal activities constituted 28
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Laws regulating speech based on its content generally must withstand At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis added)
11 intense scrutiny when facing a First Amendment challenge:
22 (citations omitted).
417
1 content-based regulation. Holding the law was not content neutral, the Court 2 held that "[i]n order to justify such differential treatment, 'the State must show 3 that its regulation is necessary to serve a compelling state interest and is 4 narrowly drawn to achieve that end.'" Id. at 118 (citing Arkansas Writers' 5 Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)). 6 7 Log Cabin Republicans urges the Court to strike down the Don't Ask, 8 Don't Tell Act as an impermissibly content-based statute. (See Pl.'s Mem. 9 Cont. Facts & Law at 35.) The Court turns first to the threshold question of 10 whether or not the Act constitutes a content-based restriction on speech. 11 12 B. 13 Judicial Definitions of Content-Based Regulation "Deciding whether a particular regulation is content-based or content-
14 neutral is not always a simple task. We have said that the principal inquiry in 15 determining content-neutrality . . . is whether the government has adopted a 16 regulation of speech because of [agreement or] disagreement with the 17 message it conveys." Turner, 512 U.S. at 642 (citations omitted). The 18 Supreme Court in Turner distilled the rule as follows: a law that by its terms 19 "distinguish[es] favored speech from disfavored speech on the basis of the 20 ideas or views expressed [is] content-based." Id. at 643 (citing Burson v. 21 Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry, 485 U.S. 312, 318-19 22 (1988)). 23 24 Defendants did not address directly the question of content neutrality, 25 but relied instead on authorities that, for various reasons, fail to counter the 26 clear weight of the case law discussed above. Defendants repeatedly cited 27 the Ninth Circuit's decisions in Witt v. Department of Air Force, 527 F.3d 806 28
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1 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), and Holmes v. 2 California National Guard, 124 F.3d 1126 (9th Cir. 1997), although the 3 plaintiff in Witt brought no First Amendment claim and the Court in Philips 4 expressly declined to reach the First Amendment issue, noting the district 5 court also had stopped short of resolving it. 6 7 In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech 8 claims in summary manner, holding because the plaintiffs "were discharged 9 for their conduct and not for speech, the First Amendment is not implicated." 10 124 F.3d at 1136 (citations omitted). Holmes relied on the Fourth Circuit's 11 decision in Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), which rejected a 12 First Amendment challenge to the Don't Ask, Don't Tell Act on the basis that it 13 "permissibly uses the speech as evidence," and "[t]he use of speech as 14 evidence in this manner does not raise a constitutional issue the First 15 Amendment does not prohibit the evidentiary use of speech to establish the 16 elements of a crime, or, as is the case here, to prove motive or intent." Id. at 17 931 (citations omitted). Holmes also relied on Pruitt v. Cheney, 963 F.2d 18 1160 (9th Cir. 1991), although acknowledging that decision was based not on 19 the Don't Ask, Don't Tell Act but a superseded policy. See Holmes, 124 F.3d 20 at 1136 (citing Pruitt, 963 F.2d at 1164). 21 22 In other words, Holmes and the cases from other circuits have found 23 the Don't Ask, Don't Tell Act does not raise a First Amendment issue to be 24 analyzed under a content-neutral versus content-based framework. None of 25 these authorities, however, considered whether there might be any speech, 26 other than admissions of homosexuality subject to being used as evidence in 27 discharge proceedings, affected by the Act. Furthermore, Holmes was 28
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1 decided before Lawrence and was "necessarily rooted" in Bowers v. 2 Hardwick, 478 U.S. 186 (1986), which Lawrence overruled. See Holmes, 124 3 F.3d at 1137 (Reinhardt, J., dissenting). 4 5 Lawrence struck down a Texas statute making felonious certain sexual 6 acts between two persons of the same sex; the Supreme Court held in part 7 that the Constitution recognized certain substantive due process rights, 8 associated with the "autonomy of self that includes freedom of thought, belief, 9 expression, and certain intimate conduct." Lawrence, 539 U.S. at 562 10 (emphasis added). The Holmes decision, finding the Act did not implicate the 11 First Amendment, and the Act's provisions, appear at odds with the Supreme 12 Court's decision in Lawrence. As Holmes explains: 13 14 15 16 17 18 20 21 The Holmes Court found the Act does not punish status, despite the 22 presumption embodied within it that declared homosexual servicemembers 23 will engage in proscribed homosexual conduct, finding the assumption was 24 "imperfect" but "sufficiently rational to survive scrutiny . . . ." 124 F.3d at 25 1135. 26 27 28
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Homosexual conduct is grounds for separation from the Military Services under the terms set forth [in the DOD Directives.] Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. 124 F.3d at 1129 (quoting DOD Directive 1332.30 at 2-1(c) (emphasis
19 added)).
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Thus, Holmes's foundations rational basis scrutiny, acceptance of an
2 assumption of sexual misconduct based on admitted homosexual orientation, 3 and the Bowers decision all have been undermined by Lawrence, 4 particularly in light of its explicit protection of "expression." See Lawrence, 5 539 U.S. at 562. Furthermore, if the proscription in subsection (b)(1) of the 6 Act violates substantive due process as set forth above, then the limitation on 7 speech in subsection (b)(2) necessarily fails as well. "Plainly, a limitation on 8 speech in support of an unconstitutional objective cannot be sustained." Able 9 v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996). Holmes, decided before 10 Lawrence, therefore does not shield Defendants from Plaintiff's First 11 Amendment claim. 12 13 C. 14 The Don't Ask, Don't Tell Act is Content Based The Act in subsection (b)(2) requires a servicemember's discharge if he
15 or she "has stated that he or she is a homosexual or bisexual, or words to 16 that effect . . . ." 10 U.S.C. 654 (b)(2) (emphasis added). The Act does not 17 prohibit servicemembers from discussing their sexuality in general, nor does 18 it prohibit all servicemembers from disclosing their sexual orientation. 19 Heterosexual members are free to state their sexual orientation, "or words to 20 that effect," while gay and lesbian members of the military are not. Thus, on 21 its face, the Act discriminates based on the content of the speech being 22 regulated. It distinguishes between speech regarding sexual orientation, and 23 inevitably, family relationships and daily activities, by and about gay and 24 lesbian servicemembers, which is banned, and speech on those subjects by 25 and about heterosexual servicemembers, which is permitted. 26 27 28
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The First Amendment's hostility to content-based regulation "extends
2 not only to restrictions on particular viewpoints, but also to prohibition of 3 public discussion of an entire topic. As a general matter, 'the First 4 Amendment means that government has no power to restrict expression 5 because of its message, its ideas, its subject matter, or its content.'" Consol. 6 Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980) 7 (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). 8 9 In evaluating the constitutionality of such regulations in a military 10 context, however, courts traditionally do not apply the strict scrutiny described 11 above. Rather, courts apply a more deferential level of review of military 12 restrictions on speech. 13 Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar 14 laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such 15 tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, 16 unity, commitment, and esprit de corps. Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted). 17 18 19 20 21 22 23 24 25 26 27 28
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Although careful to point out that the "subordination of the desires and interests of the individual to the needs of the service," which is "the essence of military life," does not entirely abrogate the guarantees of the First Amendment, the Supreme Court emphasized the "great deference [courts must afford] to the professional judgment of military authorities concerning the relative importance of a particular military interest." Id. (citations omitted). The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S. 57 (1981), oft-cited for the principle that "judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support
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1 armies and make rules and regulations for their governance is challenged." 2 Id. at 70. 3 4 In keeping with this well-established rule of deference, regulations of 5 speech in a military context will survive Constitutional scrutiny if they "restrict 6 speech no more than is reasonably necessary to protect the substantial 7 government interest." Brown v. Glines, 444 U.S. 348, 348, 355 (1980) (citing 8 Greer v. Spock, 424 U.S. 828 (1976); Procunier v. Martinez, 416 U.S. 396 9 (1974)). 10 11 D. 12 13 The Act Does Not Survive the Level of Constitutional Scrutiny Applied to Speech in a Military Context The Don't Ask, Don't Tell Act fails this test of constitutional validity.
14 Unlike the regulations on speech upheld in Brown and Spock, for example, 15 the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell 16 Act is far broader than is reasonably necessary to protect the substantial 17 government interest at stake here. In Brown, the Supreme Court upheld an 18 Air Force regulation that required Air Force personnel first to obtain 19 permission from the base commander before distributing or posting petitions 20 on Air Force bases, 444 U.S. at 348; in Greer, the Court upheld a similar 21 regulation on Army bases, banning speeches, demonstrations, and 22 distribution of literature, without prior approval from post headquarters. 424 23 U.S. at 828. In both cases, the Court rejected facial challenges to the 24 regulations, holding they protected substantial Governmental interests 25 unrelated to the suppression of free expression, i.e., maintaining the respect 26 for duty and discipline, and restricted speech no more than was reasonably 27 necessary to protect that interest. 28
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By contrast to the relatively narrow regulations at issue in Brown and
2 Greer, however, the Don't Ask, Don't Tell Act encompasses a vast range of 3 speech, far greater than necessary to protect the Government's substantial 4 interests. 5 6 For example, Michael Almy and Anthony Loverde, as well as other 7 witnesses, described how the Act prevented them from discussing their 8 personal lives or comfortably socializing off duty with their respective 9 colleagues; this in turn created a certain "distance" and perhaps an aura of 10 distrust. (Trial Tr. 820:6--821:4;821:19-822:9, July 16, 2010 (Almy); Trial Tr. 11 1360:1-1361:17, July 21, 2010 (Loverde).) Steven Vossler testified that the 12 Act made it difficult for him to spend time off duty with other members of his 13 unit, as the Act prevented him from talking openly about spending time with 14 his friend Jerrod Chaplowski because of the need to disguise the identity of 15 Chaplowski's companion. (Trial Tr. 327:12-328:20, July 14, 2010.) 16 17 Similarly, Jenny Kopfstein testified that before she decided not to 18 conceal her sexual orientation, the Act made it impossible for her to respond 19 to her shipmates' questions about mundane matters such as how she spent 20 her leisure time, as doing so would necessarily reveal the existence of her 21 lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) She testified that 22 having to conceal information that typically was shared made her feel as 23 though others on the ship might distrust her, and that trust is critical, 24 especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 2010.) 25 26 27 28
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In other words, all of these examples demonstrate that the Act's
2 restrictions on speech not only are broader than reasonably necessary to 3 protect the Government's substantial interests, but also actually serve to 4 impede military readiness and unit cohesion rather than further these goals. 5 6 Many of the lay witnesses also spoke of the chilling effect the Act had 7 on their ability to bring violations of military policy or codes of conduct to the 8 attention of the proper authorities. Joseph Rocha, eighteen years old and 9 stationed in Bahrain, felt restrained from complaining about the extreme 10 harassment and hazing he suffered because he feared that he would be 11 targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14, 12 July 15, 2010.) In fact, his fear was so great that he initially refused to 13 answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15, 14 July 15, 2010.) John Nicholson and Anthony Loverde also testified about a 15 similar chilling effect on their speech when overhearing or being subjected to 16 homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 17 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).) 18 19 The Act prevents servicemembers from openly joining organizations 20 such as the plaintiff in this lawsuit that seek to change the military's policy on 21 gay and lesbian servicemembers; in other words, it prevents them from 22 petitioning the Government for redress of grievances. John Doe, for 23 example, feared retaliation and dismissal if he joined the Log Cabin 24 Republicans under his true name or testified during trial; thus, he was forced 25 to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doe Decl.] 26 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16, 27 2010.) 28
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Furthermore, as discussed above, the Act punishes servicemembers
2 with discharge for writing a private letter, in a foreign language, to a person of 3 the same sex with whom they shared an intimate relationship before 4 volunteering for military service. It subjects them to discharge for writing 5 private e-mail messages, in a manner otherwise approved, to friends or 6 family members, if those communications might lead the (unauthorized) 7 reader to discern the writer's sexual orientation. These consequences 8 demonstrate that the Act's restrictions on speech are broader than 9 reasonably necessary to protect the Government's interest. Moreover, the 10 Act's restrictions on speech lead to the discharge of servicemembers with 11 qualifications in critically-needed occupations, such as foreign language 12 fluency and information technology. The net effect of these discharges, as 13 revealed not only in the testimony of the lay witnesses but also of the experts 14 who testified and Defendants' own admissions regarding the numbers of 15 servicemembers discharged and the costs of recruiting and maintaining an 16 all-volunteer military force, compel the conclusion that the Act restricts 17 speech more than reasonably necessary to protect the Government's 18 interests. 19 20 Finally, it again must be noted that Defendants called no witnesses, put 21 on no affirmative case, and only entered into evidence the legislative history 22 of the Act. This evidence, discussed in Section IV(C)(1) above, does not 23 suffice to show the Act's restrictions on speech are "no more than is 24 reasonably necessary" to achieve the goals of military readiness and unit 25 cohesion. (See supra Section IV(C)(1).) 26 27 28
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For these reasons, Plaintiff is also entitled to judgment on its claim for
2 violation of the First Amendment's guarantees of freedom of speech and 3 petition. 4 5 6 VI. CONCLUSION Throughout the consideration and resolution of this controversy, the
7 Court has kept well in mind the overriding principle that "judicial deference to 8 such congressional exercise of authority is at its apogee when legislative 9 action under the congressional authority to raise and support armies and 10 make rules and regulations for their governance is challenged." Rostker, 453 11 U.S. at 70. Nevertheless, as the Supreme Court held in Rostker, "deference 12 does not mean abdication." Id. at 67, 70. Plaintiff has demonstrated it is 13 entitled to the relief sought on behalf of its members, a judicial declaration 14 that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments, 15 and a permanent injunction barring its enforcement. 16 17 18 IT IS SO ORDERED. 19 20 21 Dated: October 12, 2010 22 23 24 25 26 27 28
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Case: 10-56634 10/25/2010 Page: 1 of 84
ID: 7521688 DktEntry: 9-18
1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) ) non-profit corporation, 12 ) ) Plaintiff, 13 ) ) v. 14 ) UNITED STATES OF AMERICA ) 15 and ROBERT M. GATES, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) _________________________ ) 18 ) 19 20 This case was tried to the Court on July 13 through 16 and July 20 21 through 23, 2010. After conclusion of the evidence and closing arguments on 22 July 23, 2010, both sides timely submitted supplemental post-trial briefing on 23 the admissiblility of a pretrial declaration submitted by Log Cabin Republicans 24 member John Doe,1 and the matter stood submitted. 25 26 The Court overruled Defendants' objections to Exhibit 38, the April 27, 2006. Declaration of John Doe, and considers the statements contained 27 therein regarding Doe's then-present state of mind for the limited purpose for (continued...) 28
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1
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. CV 04-08425-VAP (Ex) FINDINGS OF FACT & CONCLUSIONS OF LAW AFTER COURT TRIAL [Fed. R. Civ. P. 52]
1 Having considered all the evidence presented by the parties, as well as the 2 argument and briefing by counsel, the Court makes the following Findings of 3 Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52. 4 5 6 1. 7 8 9 10 2. 11 12 13 14 15 16 17 18 19 20 3. 21 22 23 24 (...continued) which they were offered, i.e., Doe's state of mind with respect to whether the 26 Act chilled his speech and ability to petition the government for a redress of grievances. See Fed. R. Evid. 803(3). 27 2 To the extent any of the Findings of Fact should more properly be 28 considered Conclusions of Law, they shall be deemed as such. 25
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1
FINDINGS OF FACT2 Plaintiff Log Cabin Republicans ("Log Cabin," "LCR," or "Plaintiff") is a non-profit corporation founded in 1977 and organized under the laws of the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of Incorporation].) Plaintiff's mission includes "assist[ing] in the development and enactment of policies affecting the gay and lesbian community . . . by [the] federal government[]. . . and advocat[ing] and support[ing] . . . activities or initiatives which (i) provide equal rights under law to persons who are gay or lesbian, [and] (ii) promote nondiscrimination against or harassment of persons who are gay or lesbian . . . ." (Trial Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief sought here, i.e., the ability of homosexual servicemembers to serve openly in the United States Armed Forces through repeal of the Don't Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission. Plaintiff filed its Complaint on October 12, 2004. (Doc. No. 1.) It filed a First Amended Complaint ("FAC") on April 28, 2006. (Doc. No. 25.)
1 4. 2 3 4
Plaintiff seeks only declaratory and injunctive relief in its First Amended Complaint; neither its claims nor the relief sought require individualized proof on the part of its members.
5 John Does Standing 6 5. 7 8 9 10 11 12 13 6. 14 15 16 17 7. 18 19 20 8. 21 22 23 24 25 26 9. 27 28

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John Doe serves as a lieutenant colonel in the United States Army Reserve. He joined Log Cabin Republicans in early September 2004 by completing an application form (using a pseudonym) and paying annual dues through Martin Meekins, then a member of Plaintiff's national board of directors. Meekins accepted the application form and dues payment from Doe and forwarded them to LCR's national headquarters. (Trial Ex. 38.) Doe arranged to pay his membership dues in this manner because he feared he would be discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if he joined the organization openly, using his true name. Id. Thus, at the time the Complaint was filed on October 12, 2004, John Doe was a member in good standing of Plaintiff Log Cabin Republicans. To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual orientation a secret from his coworkers, his unit, and his military superiors, and he may not communicate the core of his emotions and identity to others in the same manner as heterosexual members of the military, on pain of discharge from the Army. (Doc. No. 212 ["July 6, 2010, Order"] at 16; Trial Ex. 38.) Doe paid annual membership dues shortly before this action was filed in October 2004, but LCR did not introduce evidence showing Doe paid
1 2 3 10. 4 5 6 7 8 9 10 11 12 13 14 11. 15 16 17 18 19 20
dues, or otherwise made a financial contribution, to the organization after 2004. The evidence was conflicting regarding the effect of a member's nonpayment of dues. James Ensley testified that when a member failed to renew his or her annual dues payment, Log Cabin Republicans viewed the member as a "former" or "inactive" member, but the name would not be stricken from LCR's membership rolls or electronic database simply because of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry Hamilton, another member of the national board of directors, testified that a member who failed to renew his or her membership timely no longer would be considered a member, but his testimony did not contradict Ensley's testimony regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 2010.) Despite the lack of evidence that Doe had paid annual membership dues to LCR after 2004, he still served in the Army Reserve and still was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake in the outcome of the case, and his injury his susceptibility to discharge under the Act continued to be redressable by favorable resolution of the lawsuit.
21 John Nicholsons Standing 22 12. 23 24 25 26 27 28

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John Alexander Nicholson, III, enlisted in the United States Army in May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As detailed below, he received an honorable discharge from the Army on March 22, 2002, pursuant to the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July 20, 2010.)
1 13. 2 3 4 5 14. 6 7 8 9 10 11 12 13 15. 14 15 16 17 18 19 20 21 22 23 24 16. 25 26 27 28
In August 2005, Nicholson and others embarked on a nationwide speaking tour sponsored by LCR to raise awareness of the movement to repeal the Don't Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.) LCR's national and Georgia state chapter leaders asked Nicholson to join the organization formally after he gave a speech at LCR's national convention on April 28, 2006; he did not pay dues or make a cash contribution at that time, but was told his membership was granted in exchange for his services to the organization. (Trial Tr. 1207:221208:25, 1211:25-1212:15, July 21, 2010.) Later he was told his was an honorary membership. (Trial Tr. 1211:10-12, 1214:13-15, July 21, 2010.) Nicholson testified credibly that he did not complete a paper membership application form on April 28, 2006, because he gave the necessary information to an LCR administrative assistant who entered it directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff maintains an electronic database of its membership which lists Nicholson as a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:20-22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered the precise date Log Cabin's Georgia chapter granted him honorary membership because it was the same day he addressed LCR's national convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.) The testimony of James Ensley, President of LCR's Georgia chapter since 2006 and a member of its national board of directors since 2008, corroborated Nicholson's testimony regarding the date he became a member of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) The Georgia
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chapter conferred honorary membership on Nicholson at the 2006 Log Cabin Republicans national convention, in recognition of his "remarkable" efforts on the nationwide speaking tour and on college campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:216, July 13, 2010.) Ensley specifically recalled the date the Georgia chapter conferred honorary membership on Nicholson because Ensley's congressman had arranged a private tour of the White House for Ensley on the morning of April 28, 2006, which was the same day Nicholson addressed the convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to be a candid and credible witness. Terry Hamilton is a 25-year member of Log Cabin Republicans and now serves as chairman of its national board of directors. (Trial Tr. 33:1135:22, July 13, 2010.) He verified that the organization's membership records reflected Nicholson's membership status since April 28, 2006, and also that Nicholson regularly attended and spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a member of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 2010.) The Court found Hamilton a credible and reliable witness. Thus, Nicholson officially joined Log Cabin Republicans on April 28, 2006, and has been a member continuously since then. (Trial Tr. 1208:11-15, 1214:24-1215:17, July 21, 2010.) At the time Nicholson was conferred honorary membership, he satisfied the requirements for membership under section 2.02 of the Log Cabin Republican Bylaws, which states: Honorary and Special Members: The Board of Directors may establish other criteria for granting an Honorary Membership to Log
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. 21.
Cabin Republicans for individuals who have exhibited a unique or noteworthy contribution to the Mission of the Corporation or a Special Membership to Log Cabin Republicans for individuals or entities that have provided assistance to the Corporation.3 (Trial Ex. 109.) Nicholson's membership in Log Cabin Republicans has been uninterrupted and continuous since April 28, 2006, the date Plaintiff's Georgia chapter conferred honorary membership upon him and also the date Plaintiff filed its First Amended Complaint. In light of the Court's May 27, 2010, Order, this is sufficient. Martin Meekins testified credibly that the initiative for filing this lawsuit came from the rank and file of the organization; Meekins then interviewed members regarding the viability of a lawsuit and to determine if the members met the requirements to confer standing on the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:11-707:12, July 16, 2010.) Testimony from Former Servicemembers
Michael Almy 23. Michael Almy served for thirteen years as a commissioned officer in the United States Air Force, finishing his service as a major. (Trial Tr. 726:21-727:11, 728:11-12, July 16, 2010.) His family has a heritage of Defendants argue Nicholson's honorary membership, pursuant to section 2.02 of the Bylaws, did not confer membership on him because LCR's Articles of Incorporation refer only to one class of membership. (See Doc. No. 186 [Defs.' Mem. Cont. Fact & Law] at 3-4.) The Court rejected this argument in its May 27, 2010, Order, noting "Defendants' argument that Mr. Nicholson's honorary membership is insufficient to confer standing on Plaintiff fails for two reasons . . . . Defendants have not shown that the bylaw cited actually conflicts with Plaintiff's articles of incorporation . . . . [, and] [t]he District of Columbia Nonprofit Corporation Act (the 'Corporation Act') provides that a nonprofit corporation shall designate its membership class or classes and accompanying qualifications 'in the articles of incorporation or the bylaws.' D.C. Code 29-301.12 (emphasis added)." (May 27, 2010, Order at 24-25.)
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3
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military service; his father retired as a colonel in the Air Force, and two uncles served as career military officers as well. (Trial Tr. 728:13-22, July 16, 2010.) Almy entered active duty in 1993, after obtaining an undergraduate degree in Information Technology while serving in the Army ROTC program. He did not self-identify as a gay man until a few years later. (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he testified, the Don't Ask, Don't Tell Act created a natural barrier between himself and his colleagues, as he could not reveal or discuss his personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to socialize when off duty, he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of this may have contributed to creating an aura of suspicion about him, and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.) The Court found Almy a forthright and credible witness whose modest demeanor and matter-of-fact recitation of his service record did not disguise his impressive career in the Air Force. Almy was deployed to Saudi Arabia three times and helped enforce the southern "no fly" zone over Iraq. Almy set up new communications bases throughout military theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi Arabia, serving in the Communications Directorate, during the 2003 invasion of Iraq. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.) In 2003, after returning from his third deployment to Saudi Arabia, Almy was promoted to the rank of major and accepted a position as the Chief of Maintenance for the 606th Air Control Squadron in Spangdahlem, Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy commanded approximately 180 men in the Maintenance Directorate.
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(Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights4 in the Maintenance Directorate under his command in the 606th Air Control Squadron deployed to Iraq in September 2004. His squadron was responsible for maintaining and controlling the airspace during the invasion of Fallujah, Iraq, and he was responsible for maintaining control over the vast majority of Iraqi airspace, including Kirkuk, as well as maintaining all satellite links and voice and data communications. (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air Base, his flight experienced frequent mortar attacks "usually several times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.) After Almy completed his third deployment to Iraq in January 2005, someone began using the same computer Almy had used while deployed; that person searched Major Almy's private electronic mail message ("e-mail") files without his knowledge or permission. The search included a folder of Major Almy's personal e-mail messages,5 sent to his friends and family members, and read messages, including at least one message to a man discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16, 2010.) Almy thought the privacy of his messages was protected; he was very knowledgeable about the military's policy regarding the privacy of email accounts because of his responsibility for information systems. (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He A "flight" is the Air Force term for a group of airmen, comparable to a "unit" in the Army. (Trial Tr. 1335:10-12, July 21, 2010.)
5 4
According to Major Almy's uncontradicted testimony on this point, the Air Force, "for morale purposes," allows servicemembers deployed in combat 26 zones to use their government e-mail account for personal e-mail. (Trial Tr. 27 767:3-18, 794:6-15, 796:6-798:4, July 16, 2010.) Almy separated the personal e-mail he received in his government e-mail account into a folder 28 titled "Friends." (Trial Tr. 769:20-770:15, July 16, 2010.)
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knew, for example, that according to Air Force policy, e-mail accounts could not be searched unless authorized by proper legal authority or a squadron commander or higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16, 2010.) Almy only learned his private e-mail had been searched when he returned to Germany and his commanding officer confronted Almy with the messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At the end of the meeting, Almy was relieved of his duties, and his commanding officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15, July 16, 2010.) Almy had attained one of the highest level security clearances available for military personnel, "top secret SCI6 clearance;" approximately three months after Almy was relieved of his duties, his security clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.) Initially, Almy contested his discharge, as he felt he had not violated the terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's understanding was that his discharge was based solely on the e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.) Accordingly, Almy invoked his right to an administrative hearing and solicited letters of support from those who had worked with him in the Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.)
6
"SCI" stands for "Sensitive Compartmented Information."

10 437
1 33. 2 3 4 5 6 7 8 9 10 11 34. 12 13 14 15 16 17 18 35. 19 20 21 22 23 24 25 26 27 28
Colonel Paul Trahan, U.S. Army (Ret.), wrote: "My view is that Major Almy has been, and will continue to be an excellent officer. As a former Commander and Inspector General I am well aware of the specifics of the Homosexual Conduct Policy. To my knowledge, Major Almy is not in violation of any of the provisions of the policy. To the contrary, it appears that in prosecuting the case against Major Almy, the USAF may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic Privacy Act and Presidential directives regarding the suspension of security clearances." (Trial Ex. 113 [Character Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].) Captain Timothy Higgins wrote: "Of the four maintenance directorate chiefs I have worked with at the 606th, Major Almy is by far the finest. During his tenure as the [director of logistics], he had maintenance training at the highest levels seen to date . . . . His troops respected him because they believed he had their best interests at heart." (Trial Ex. 117 [Character Reference Letter from Timothy J. Higgins, Capt. USAF].) Those who served under Almy wrote equally strong praise: "I can say without reservation that Maj. Almy was the best supervisor I have ever had." (Trial Ex. 120 [Character Reference Letter from Rahsul J. Freeman, 1st Lt., USAF].) "I was deployed with him during the NATO Exercise CLEAN HUNTER 2004. His leadership was key to our successful completion of the mission. He was well liked and respected by the enlisted personnel in the unit." (Trial Ex. 122 [Character Reference Letter from Leslie D. McElya, SMSgt. USAF (Ret.)].)
11 438
1 36. 2 3 4 5 6 37. 7 8 9 10 11 12 13 38. 14 15 16 17 18 39. 19 20 21 22 23 24 25 26 27 28
Almy's commanding officer while his discharge proceedings were pending, Lt. Col. Jeffrey B. Kromer, wrote that he was convinced "the Air Force, its personnel, mission and tradition remains unchanged and unharmed despite [Almy's] alleged [violations of the Don't Ask, Don't Tell Act]." (Trial Ex. 114.) During the course of Almy's discharge proceedings, he was relieved of his command, but remained at Spangdahlem Air Base performing "ad hoc" duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy testified he observed the effect his abrupt removal from his duties had on his former unit: the maintenance, availability, and readiness of the equipment to meet the mission declined. (Trial Tr. 813:19-24, 815:218, July 16, 2010.) One officer in the 606th Air Control Squadron observed that the squadron "fell apart" after Major Almy was relieved of his duties, illustrating "how important Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt. USAF, 606th Air Control Squadron].) After sixteen months, Almy agreed to drop his request for an administrative hearing and to accept an honorable discharge. He testified he did so because of his own exhausted emotional state and the risk that a less-than-honorable discharge would affect his ability to obtain a civilian job or receive his retirement benefits. (Trial Tr. 798:8799:13, July 16, 2010.) Almy refused to sign his official discharge papers, however, because they listed the reason for discharge as admitted homosexuality. (See Trial Ex. 112; Trial Tr. 800:1-801:20, July 16, 2010.)
12 439
1 40. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 41. 17 18
Major Almy received many awards and honors during his service in the Air Force. For example, while serving at Tinker Air Force Base in the late 1990s with the Third Combat Communications Group, he was selected as "Officer of the Year," chosen as the top performer among his peers for "exemplary leadership, dedication to the mission, and going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16, 2010.) In 2001, he was one of six Air Force officers chosen to attend the residential training program for officers at the Marine Corps Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005, he was awarded the Lt. General Leo Marquez Award, given to the top Air Force communications officer serving in Europe. (Trial Tr. 760:8-761:1, July 16, 2010.) Although Almy had been relieved of command during the pendency of the discharge proceedings, Almy's wing commander, Colonel Goldfein, recommended that Almy be promoted to lieutenant colonel. (Trial Tr. 816:19-818:1, July 16, 2010.) Almy testified that if the Act were no longer in effect, he "wouldn't hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.)
19 Joseph Rocha 20 42. 21 22 23 24 25 26 27 28

13 440
Joseph Rocha enlisted in the United States Navy on April 27, 2004, his eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like Major Almy's, had a tradition of military service, and the September 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He wanted to be an officer in the United States Marine Corps, but was not admitted to the Naval Academy directly out of high school; so he hoped to enter Officer Training School through diligence as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)
1 43. 2 3 4 5 6 44. 7 8 9 10 45. 11 12 13 14 15 16 17 46. 18 19 20 21 22 23 24 47. 25 26 27 28
After successfully completing basic training, Rocha was promoted to seaman apprentice and received further training in counter-terrorism and force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15, 2010.) Once he arrived at the Naval Support base in Bahrain, Rocha sought out the base's canine handler position because he wanted to specialize in becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.) The canine group is an elite and competitive unit, for which qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha volunteered his off-duty time to earn the qualifications to interview and be tested for a kennel-support assignment; during this time, his interactions with members of the canine unit were limited to one or two handlers on the night shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.) Eventually, Rocha took and passed oral and written examinations with Chief Petty Officer Toussaint, the canine group's commanding officer; Rocha met the other qualifications and received an assignment in kennel support. (Trial Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs that were trained to sniff and detect explosives and explosive devices were clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.) At the same time, Rocha voluntarily participated in additional physical training exercises with members of the Marine Corps, such as martial arts and combat operations training, in the belief this eventually would
14 441
1 2 3 48. 4 5 6 7 49. 8 9 10 11 12 13 14 15 16 17 50. 18 19 20 21 22 23 24 25 51. 26 27 28
improve his chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July 15, 2010.) As Rocha aspired to become a Marine officer, after receiving permission through the Marine chain of command, he began "more formal training," eventually earning martial arts, combat, and swimming qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.) Once assigned as kennel support to the canine unit and under Chief Petty Officer Toussaint's command, Rocha was hazed and harassed constantly, to an unconscionable degree and in shocking fashion. When the eighteen-year-old Rocha declined to participate in the unit's practice of visiting prostitutes, he was taunted, asked if he was a "faggot," and told he needed to prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to the others in the unit, who then began to use derogatory language towards Rocha. (Trial Tr. 486:11-17, July 15, 2010.) When Rocha refused to answer questions about his sexual orientation from Toussaint and others in the unit, "it became a frenzy," in Rocha's words, and his superiors in the canine unit would gather around him, simulate sexual positions, and ask if U.S. Marine Corps soldiers performed various sexual acts on him. (Trial Tr. 487:20-488:7, 488:819, July 15, 2010.) Toussaint ordered all of the other men in the unit to beat Rocha on the his nineteenth birthday. (Trial Tr. 485:16-486:3, July 15, 2010.) On one occasion that Rocha testified was especially dehumanizing, Toussaint brought a dozen dogs to the Department of Defense Dependents School for a bomb threat training exercise. For the
15 442
1 2 3 4 5 52. 6 7 8 9 53. 10 11 12 13 14 15 16 17 54. 18 19 20 21 22 23 55. 24 25 26 27 28
"training exercise" he instructed Rocha to simulate performing oral sex on another enlisted man, Martinez, while Toussaint called out commands about how Rocha should make the scenario appear more "queer." (Trial Tr. 490:13-492:19, July 15, 2010.) On another occasion, Toussaint had Rocha leashed like a dog, paraded around the grounds in front of other soldiers, tied to a chair, force-fed dog food, and left in a dog kennel covered with feces. (Trial Tr. 521:11-522:1, July 15, 2010.) Rocha testified that during this deployment in Bahrain, he never told anyone he was gay because he wanted to comply with the Don't Ask, Don't Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not report any of the mistreatment he suffered, although he believed it violated Navy regulations. (Trial Tr. 488:20-489:14, July 15, 2010.) Toussaint was his commanding officer to whom he normally would direct such a report yet was either responsible for the mistreatment or present when others engaged in it. (Id.) Rocha's only other choice was to report the misconduct to the Inspector General, which he did not believe was feasible. (Trial Tr. 499:6-16, 533:2-19, July 15, 2010.) He was eighteen to nineteen years old at the time, far from home, and all of the perpetrators were senior to him in rank and led in the misconduct by his commanding officer. (Trial Tr. 488:20-489:14, July 15, 2010.) Eventually Rocha received the assignment he had hoped for, returning to the United States and reporting to Lackland Air Force Base for Military Working Dog Training School. (Trial Tr. 499:20-500:1, July 15, 2010.)
16 443
1 56. 2 3 4 5 57. 6 7 8 9 10 11 12 13 14 58. 15 16 17 18 19 20 21 59. 22 23 24 25 60. 26 27 28
Once he completed the training at Lackland successfully, he returned to Bahrain, where he found that although he was now a military dog handler himself, the same atmosphere prevailed. (Trial Tr. 500:2-6, 1618, July 15, 2010.) A new petty officer had joined the unit, Petty Officer Wilburn, who declared openly that Rocha was "everything he hated: liberal, [Roman] Catholic, and gay." (Trial Tr. 501:19-502:11, July 15, 2010.) Wilburn trailed Rocha regularly as Rocha tried to carry out his duties, taunting and harassing him. Rocha wrote Wilburn a letter complaining about his conduct; in response, Wilburn left an image of two men engaging in homosexual activity on Rocha's computer with the message that if Rocha complained, "no one will care." (Trial Tr. 502:12-504:5, July 15, 2010.) When the Navy undertook an investigation of Toussaint's command (apparently unmotivated by anything Rocha said or did), Rocha was questioned by a captain but at first refused to answer any questions about the mistreatment he was subjected to because he was afraid the investigation might lead to questions about his sexual orientation and an investigation on that subject. (Trial Tr. 519:16-520:10, July 15, 2010.) So great was Rocha's fear of retaliation that he responded to an investigating officer's questions regarding Toussaint only after he was threatened with a court martial if he continued to refuse to respond. (Trial Tr. 520:11-15, July 15, 2010.) The Navy recognized Rocha with several awards during his service, including the Navy and Marine Corps Achievement Medal for professional achievement that exceeds expectations; the Global War
17 444
1 2 3 4 61. 5 6 7 8 9 10 11 12 13 14 15 16 17 62. 18 19 20 21 22 23 24 25 26 27 28
on Terrorism Expeditionary Medal; the National Defense Service Medal; and the Navy Expert Rifleman Medal. (Trial Tr. 517:23-24, 518:7-8, 14-16, 519:4-7, July 15, 2010.) Rocha received consistently excellent performance evaluations and reviews while he served in the Navy. (See Trial Exs. 144, 145.) In Rocha's review covering February 18, 2005, through July 15, 2005, his supervisors including Toussaint described Rocha as "highly motivated" and a "dedicated, extremely reliable performer who approaches every task with enthusiasm." (Trial Ex. 145; Trial Tr. 494:23-497:13, July 15, 2010.) Rocha's review also stated that he was a "proven performer" who was "highly recommended for advancement." (Trial Tr. 496:16-497:3, July 15, 2010.) Rocha's review recommended him for early promotion, which he received shortly thereafter. (Trial Tr. 497:7-22, July 15, 2010.) Toussaint signed the review as Rocha's senior reviewing military officer. (Trial Tr. 495:19-23, 498:4-6, July 15, 2010.) Despite the ongoing harassment, Rocha continued to receive exemplary reviews from his supervisors in the canine handling unit, including Toussaint. In a review covering July 16, 2005, through June 16, 2006, then-Petty Officer Rocha is described as an "exceptionally outstanding young sailor whose performance, initiative, and immeasurable energy make[ ] him a model Master-At-Arms." (Trial Ex. 144; Trial Tr. 504:23-506,19, July 15, 2010.) The review also noted that as a military working dog handler, Rocha "flawlessly inspected [over 300 items of military equipment,] increasing the force protection of NSA Bahrain." (Trial Ex. 144; Trial Tr. 506:10-13, July 15, 2010.)
18 445
1 63. 2 3 4 5 64. 6 7 8 9 10 65. 11 12 13 14 15 16 66. 17 18 19 20 21 22 23 24 25
As a result of his performance as a military working dog handler, Rocha received the Navy and Marine Corps Achievement Medal, which is given when an enlisted member exceeds expectations. (Trial Tr. 517:15-518:6 July 15, 2010.) In 2006, Rocha was chosen to receive the sole nomination from his congressman for entrance into the U.S. Naval Academy, and Rocha chose to apply to the Naval Academy's preparatory school in the event he was not accepted directly into the Naval Academy.7 (Trial Tr. 506:14; 507:4-23, July 15, 2010.) Rocha received the required nomination of everyone in his chain of command for his entry into the Naval Academy and was accepted into its preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) Hearing of acceptance to the Academy was "the most significant moment of [his] life . . . , [because acceptance into the Naval Academy] was the biggest dream [he'd] ever had." (Trial Tr. 519:8-15, July 15, 2010.) Once he enrolled at the preparatory academy, Rocha had the opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:1224, July 15, 2010.) His instructors at the preparatory scbool stressed the nature of the fifteen- to twenty-year commitment expected of the officer candidates. (Id.) Rocha understood he was gay when he enlisted in the Navy at age eighteen, and had complied fully with the Don't Ask, Don't Tell Act during his service, which he had thought would protect him. (Id.)
According to Rocha's uncontradicted testimony on this point, the preparatory school is designed to give extra academic support before entry 27 into the Naval Academy at Annapolis. (Trial Tr. 507:24-508:4, July 15, 2010.) Once admitted into the Naval Academy's preparatory school, acceptance into 28 Annapolis is guaranteed. (Trial Tr. 508:5-12, July 15, 2010.) 26
19 446
1 67. 2 3 4 5 6 68. 7 8 9 10 11 12 69. 13 14 15 16 17 18 70. 19 20 21 71. 22 23 72. 24 25 26 27 28
After reflecting on his experiences in the military working dog unit in Bahrain, however, he decided it would be impossible for him to serve under the restraints of the Act and fulfill the commitment expected of him. He then decided to inform the Navy of his sexual orientation. (Trial Tr. 522:12-523:15, July 15, 2010.) He first sought permission from his immediate supervisor, Ensign Reingelstein, to speak to the division commander; Ensign Reingelstein unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr. 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with his commanding officer, Lt. Bonnieuto, who listened and told him to return to his unit. (Trial Tr. 525:2-19, July 15, 2010.) Eventually, he received an honorable discharge (see Trial Ex. 144), although before accepting Rocha's statement, Lt. Bonnieuto tried to dissuade him, telling him he was being considered for various honors and leadership positions at the preparatory school, including "battalion leadership." (Trial Tr. 525:21-526:6, 527:13-528:22, 530:4-25, July 15, 2010.) After his discharge, Rocha was diagnosed with service-related disorders including "post-traumatic stress disorder with major depression." (Trial Tr. 532:11-19, July 15, 2010.) Rocha testified he would rejoin the Navy if the Don't Ask, Don't Tell Act was repealed. (Trial Tr. 533:24-534:2, July 15, 2010.) Even when recounting the mistreatment endured under Toussaint's command, Rocha testified in an understated and sincere manner. The Court found him a forthright and credible witness.
20 447
1 Jenny Kopfstein 2 73. 3 4 5 6 7 74. 8 9 10 11 12 13 14 75. 15 16 17 18 19 20 21 22 23 76. 24 25 26 27 28

21 448
Jenny Kopfstein joined the United States Navy in 1995 when she entered the United States Naval Academy; after graduation and further training, she began serving on the combatant ship USS Shiloh on March 15, 2000. (Trial Tr. 919:12-14, 926:11-927:3, 927:12-19, July 16, 2010.) Kopfstein was assigned as the ship's ordnance officer, which means she "was in charge of two weapon systems and a division of [fifteen] sailors." (Trial Tr. 928:22-929:6, July 16, 2010.) When assigned as "officer of the deck," Kopfstein was "in charge of whatever the ship happened to be doing at that time," and coordinating the ship's training exercises of as many as twenty to thirty sailors. (Trial Tr. 929:7-930:4, July 16, 2010.) Once assigned to the USS Shiloh, Kopfstein discovered the Act made it impossible for her to answer candidly her shipmates' everyday questions about such matters as how she spent weekends or leave time; to do so would place her in violation of the Act as she would necessarily be revealing the existence of her lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) Having to conceal information that typically was shared made her feel as though other officers might distrust her, and that trust is critical, especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 2010.) The Don't Ask, Don't Tell Act's prohibition on gay and lesbian servicemembers revealing their sexual orientation affects trust among shipmates, as Kopfstein testified, because it causes people to "hide significant parts of themselves," making it harder to establish the necessary sense of teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.)
1 2 3 4 5 77. 6 7 8 9 10 11 78. 12 13 14 15 16 79. 17 18 19 20 80. 21 22 23 24 25 26 27 28
When she overheard homophobic comments and name-calling by her shipmates, she felt she could neither report them nor confront the offenders, because to do either might call unwanted suspicion upon her. (Trial Tr. 932:18-933:6, July 16, 2010.) After serving for four months on the USS Shiloh, Kopfstein wrote a letter to Captain Liggett, her commanding officer, stating she was a lesbian; she wanted Captain Liggett to learn this from her rather than hear it from another source. (Trial Tr. 933:7-13, 935:8-23, July 16, 2010; Trial Ex. 140 ["Memorandum of Record" from Kopfstein to Liggett, July 17, 2000].) Captain Liggett did not begin any discharge proceedings after Kopfstein wrote this letter; he told her this was because he did not know her well and thought she might have written the letter not because she was a lesbian, but rather as an attempt to avoid deployment to the Arabian Gulf. (Trial Tr. 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.) Kopfstein continued to serve and perform her duties in the same manner she had before writing, but no longer lying or evading her shipmates' questions about her personal life when asked. (Trial Tr. 950:25-951:11, July 20, 2010.) When leaving the USS Shiloh, to be replaced by Captain Dewes, Captain Liggett not only invited Kopfstein to the farewell party at his house for the officers and their spouses, but made a point of telling her she was welcome to bring "any guest she chose" with her. (Trial Tr. 955:12-956:8, July 20, 2010.) Kopfstein and her partner attended the party, and Kopfstein testified that Captain Liggett and his wife welcomed them both warmly, as did everyone else present. (Trial Tr. 956:12-25, July 20, 2010.)
22 449
1 81. 2 3 4 5 6 7 8 9 10 11 12 13 82. 14 15 16 17 18 19 20 21 83. 22 23 24 25 26 27 28
During the abbreviated course of her service, the Navy awarded Kopfstein many honors. For example, she was chosen to steer the USS Shiloh in a ship steering competition; after the USS Shiloh won the competition, she received a personal commendation from the Admiral who also ceremonially "gave her his coin," a rare and prized tribute. (Trial Tr. 952:14-953:20, July 20, 2010.) When she returned from overseas deployment after the bombing of the USS Cole off the coast of Yemen in February 2001, the Navy awarded her the Sea Service Deployment Ribbon, another commendation not routinely awarded. (Trial Tr. 949:11-22, 954:5-22, July 20, 2010.) She also was awarded the Naval Expeditionary Medal after the Yemen deployment. (Trial Tr. 955:5-11.) On September 11, 2001, Kopfstein was the ordnance officer on the USS Shiloh, in charge of all the weapons on the ship; the captain chose her to be officer of the deck as the ship was assigned to defend the West Coast against possible attack in the wake of the attacks on New York and the Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20, 2010.) In October 2001, the Navy awarded her the Surface Warfare Officer pin, during a ceremony where her captain took off his pin and pinned it on her chest. (Trial Tr. 968:8-970:1, July 20, 2010.) In evaluations completed before and after Kopfstein revealed her sexual orientation, her commanding officers praised her as the USS Shiloh's "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted ship handler," and the manager of "one of the best ship's led and organized divisions," and a "[s]uperb [t]rainer" with a "great talent for teaching other junior officers." (Trial Exs. 138, 139.)
23 450
1 84. 2 3 4 5 6 7 8 9 10 11 85. 12 13 14 86. 15 16 17 18 19 87. 20 21 22 88. 23 24 25 26 89. 27 28
Two captains under whom she served came to the Board of Inquiry to testify on her behalf during her discharge proceedings. (Trial Tr. 974:2977:11, July 20, 2010.) Captain W.E. Dewes, Kopfstein's commanding officer at the time of her discharge, reported that "[h]er sexual orientation has not disrupted good order and discipline onboard USS SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy" and "played an important role in enhancing the ship[']s strong reputation . . . . She is a trusted [o]fficer of the [d]eck and best ship handler among her peers. Possesses an instinctive sense of relative motion a natural Seaman." (Trial Ex. 139.) Captain Liggett also attended her discharge proceedings, where he testified that "it would be a shame for the service to lose her." (Trial Ex. 138.) Kopfstein served in the Navy without concealing her sexual orientation for two years and four months before her discharge. During that time, to her knowledge, no one complained about the quality of her work or about being assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8, 989:9-17, July 20, 2010.) Kopfstein did not want to leave the Navy; she enjoyed the company of her shipmates and found her work rewarding. (Trial Tr. 973:16-24, July 20, 2010.) Nevertheless, Kopfstein was discharged under the Don't Ask, Don't Tell Act. (Id.) Although she appealed the decision to separate her from the Navy, she did not prevail, and on October 31, 2002, she received an honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.) Kopfstein testified she "absolutely" would rejoin the Navy if the Act were repealed. (Trial Tr. 980:16-22, July 20, 2010.)
24 451
1 90. 2 3 4 5
The Court found Kopfstein an honest, candid, and believable witness; she testified with modest understatement about her talent and achievements as a naval officer and with obvious sincerity about her desire to rejoin to fulfill her original commitment.
6 John Nicholson 7 91. 8 9 10 11 12 13 14 92. 15 16 17 18 19 20 93. 21 22 23 24 94. 25 26 27 28

25 452
John Nicholson enlisted in the United States Army in May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) At the time he enlisted, he was fluent in Spanish and "fairly proficient" in Italian and Portuguese. (Trial Tr. 1129:3-1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He underwent testing in the military for foreign language aptitude and qualified for the most difficult level of language training, Category 4. (Trial Tr. 1151:25-1152:3, 1154:4-9, July 20, 2010.) While Nicholson served, especially while in basic training at Fort Benning, Georgia, he sometimes heard other soldiers make sexist or homophobic slurs but was afraid to report these violations of military conduct lest suspicion fall on him or he be retaliated against in a manner that would lead to his discharge under the Act. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 2010.) The Don't Ask, Don't Tell Act prevented Nicholson from being open and candid with others in his unit; it kept him under a "cloud of fear," and caused him to lie about and alter who he was. (Trial Tr. 1194:171196:20, July 20, 2010.) After completing his basic training, Nicholson was assigned to Fort Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr. 1143:25-1144:3, July 20, 2010.) While completing his intelligence training at Fort Huachuca, Nicholson requested and received a
1 2 3 4 95. 5 6 7 96. 8 9 10 11 12 13 97. 14 15 16 17 18 19 98. 20 21 22 23 24 25 99. 26 27 28
reassignment to counterintelligence, but remained at Fort Huachuca to complete the requisite counterintelligence training. (Trial Tr. 1148:5-14, July 20, 2010.) Nicholson was waiting to start the next cycle of the counterintelligence course when another servicemember started spreading a rumor that Nicholson was gay. (Trial Tr. 1154:12-18, July 20, 2010.) The rumor originated because, while off duty in January 2002, Nicholson wrote a letter to a man with whom he had a relationship before joining the Army. Nicholson wrote the letter in Portuguese to prevent other servicemembers from reading it, because it contained references that could reveal Nicholson's sexual orientation. (Trial Tr. 1134:10-23, 1161:10-1163:7, July 20, 2010.) Despite Nicholson's precautions, another servicemember caught sight of the letter while chatting with Nicholson. (Id.) After the two had been talking for a few minutes, Nicholson realized she was one of the few persons he knew in the Army who also could also read Portuguese; he gathered up the pages of his letter after he noticed she appeared to be interested in it and reading it. (Id.; Trial Tr. 1163:8-18, July 20, 2010.) After this incident, members of Nicholson's unit approached him and told him to "be more careful" with regard to disclosing his sexual orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson sought his platoon sergeant's assistance to stop the spread of the rumor, but the sergeant instead informed the chain of command. (Trial Tr.1166:9-1167:19, 1170:9-15, July 20, 2010.) Nicholson's company commander summoned Nicholson to his office and informed Nicholson that he was initiating discharge proceedings. (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the meeting,
26 453
1 2 3 5 6 7 8 10 11 13 15 16
the platoon sergeant, who also had been present at the meeting, ordered Nicholson not to disclose why he was being discharged from the Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.) from his platoon and placed in a wing of the barracks containing other servicemembers who were being discharged for reasons such as drug use and failing to disclose criminal convictions before enlistment. (Trial Tr. 1184:11-1185:11, July 20, 2010.) Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20, 2010.) Ask, Don't Tell Act were invalidated. (Trial Tr. 1209:4-5, July 21, 2010.) Court observed Nicholson to be credible and forthright.
4 100. After meeting with his company commander, Nicholson was separated
9 101. Two months later, Nicholson was honorably discharged under the Don't
12 102. Nicholson testified he "absolutely" would return to the Army if the Don't 14 103. As noted above with respect to his testimony on the standing issue, the
17 Anthony Loverde 18 104. Anthony Loverde joined the United States Air Force on February 13, 19 20 21 23 24 25 26 27 28
27 454
2001, making a six-year commitment and hoping to use his G.I. Bill benefits to obtain a post-graduate degree eventually. (Trial Tr. 1326:19-24, 1327:16-1328:22, July 21, 2010.) electronics and further training in calibrations, after which he qualified at the journeyman level as a Precision Measurement Equipment Laboratory ("PMEL") technician. (Trial Tr. 1329:5-24, July 21, 2010.) A PMEL technician calibrates the accuracy, reliability, and traceability of
22 105. After completing basic training, he received specialized training in
1 2 4 5 6 7 8 9 11 12 13 14 15 16 18 19 20 21 23 24 25 26 27 28
all types of equipment, including precision warfare equipment. (Trial Tr. 1335:13-1336:5, July 21, 2010.) Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.) While at Ramstein, Loverde's flight was responsible for calibrating and ensuring the accuracy and reliability of "various equipment used throughout the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.) Loverde was stationed at Ramstein for approximately three years. (Trial Tr. 1337:5-11, July 21, 2010.) at Edwards Air Force Base in California for approximately two years. (Trial Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards, Loverde was deployed to Al Udeid Air Base in Qatar for four months, where he supported Operations Iraqi Freedom and Enduring Freedom, as well as missions in the Horn of Africa. (Trial Tr. 1344:8-22, 1345:17-21, July 21, 2010.) Three and one-half years after enlistment, for example, he was promoted to staff sergeant, although the usual length of time to reach that rank is six years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July 21, 2010.) received further training to qualify as a loadmaster. (Trial Tr. 1352:251353:15, July 21, 2010.) In that capacity, he flew sixty-one combat missions in Iraq, where he received two Air Medals. (Trial Tr. 1357:1217, 1359:17-25, July 21, 2010.)
3 106. After completing training in December 2001, Loverde was stationed at
10 107. After completing his tour at Ramstein Air Base, Loverde was stationed
17 108. During his stint in the Air Force, Loverde received frequent promotions.
22 109. After serving his initial enlistment commitment, he reenlisted and
28 455
1 110. Loverde testified he was raised in a religious family and his church 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28
29 456
taught that homosexuality was a sin; he had not realized he was gay at the time he joined the military at age twenty-one. (Trial Tr. 1327:16-17, 1330:13-25, July 21, 2010.) After he became aware of his sexual orientation, he researched the Don't Ask, Don't Tell Act and found the Servicemembers' Legal Defense Network website. (Trial Tr. 1332:131333:4, July 21, 2010.) He understood that there were three grounds for discharge under the Act marriage, conduct, and statements. (Trial Tr. 1332:17-1333:4, July 21, 2010.) He resolved to comply with the Act and remain in the Air Force. Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:2025, July 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act effectively made it impossible to honor the "Integrity First" value of the credo, because on occasion, he felt forced to lie rather than violate the Act. Once, when with other servicemembers in a bar off base in Germany, he refused the sexual advances of a German civilian woman, and his colleagues asked him if he was gay; on another occasion, a subordinate airman asked Loverde about his sexual orientation. (Trial Tr. 1333:5-1334:16, 1349:24-1350:24, July 21, 2010.) Germany, Loverdes flight chief often used offensive epithets to refer to homosexuals, as well as racist and sexist slurs. (Trial Tr. 1364:161365:25, July 21, 2010.) Although Loverde was disturbed by this, he felt he had no recourse and could not report it lest he draw attention to his sexual orientation. Therefore, during the year he served under this
11 111. The Air Force's core values are "Integrity First, Service Before Self, and
21 112. During the time he served as a loadmaster at Ramstein Air Base in
1 2 4 5 6 7 8 9 11 12 13 14 15 16 18 19 20 21 23 24 25 26 27 28
officer, he never made any formal or informal complaint about it. (Id.; Trial Tr. 1366:13-15, July 21, 2010.) his assignments to bases in Germany and California, he faced the difficulty of having to hide his personal life from his colleagues and avoiding conversations with them about everyday life over meals, for example. (Trial Tr. 1360:1-1361:17, July 21, 2010.) He became so skilled at avoiding his fellow airmen that they nicknamed him "Vapor" in recognition of his ability to vanish when off duty. (Id.) sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time, he was deployed at Ali Al Saleem Air Base in Kuwait, and he delayed formally telling his commanding officer of his decision until his return to Germany, lest his entire flight's mission be disrupted and their return from deployment delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July 21, 2010.) his first sergeant, requesting to speak to his commanding officer about continuing to serve under the Don't Ask, Don't Tell Act, and stating that while he wanted to continue serving in the Air Force, he could not do so under that law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.) commended him for being "nothing less than an outstanding [noncommissioned officer]" and "a strong asset" to the Air Force. (Trial Exs. 136, 137.) They praised him for demonstrating an "exceptional work ethic" and "the highest level of military bearing, honest, and trustworthiness." (Id.) One wrote: "If I ever had the opportunity to build
3 113. Loverde also testified that during his combat deployments and during
10 114. In April 2008, Loverde decided he was no longer willing to conceal his
17 115. When Loverde returned to Germany from his deployment, he wrote to
22 116. Loverde's superiors recommended the Air Force retain him and
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1 2 4 5 7 8 9
my 'dream team' for work, I would take an entire crew of SSgt. Loverde over most other workers. . . ." (Trial Ex. 137.) discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134, 136, 137; Trial Tr. 1372:20-1377:20, July 21, 2010.) the Don't Ask, Don't Tell Act were repealed. (Trial Tr. 1389:12-18, July 21, 2010.) The Court found Loverde a candid and credible witness.
3 117. Nevertheless, in July 2008 the Air Force gave Loverde an honorable
6 118. Loverde testified he would join the Air Force again "without a doubt" if
10 Steven Vossler 11 119. Steven Vossler's family has a tradition of service in the Army extending 12 13 14 15 16 17 19 20 21 22 23 25 26 27 28
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back to the Spanish-American War, and he enlisted in the United States Army in November 2000, before graduating high school. (Trial Tr. 302:19-303:5, July 14, 2010.) After basic training, the Army sent him to the Defense Language Institute in Monterey, California, because of his exceptional aptitude for foreign languages. (Trial Tr. 305:5-306:6, July 14, 2010.) Language Institute, and testified that in general it is important to have "good, open relationships" and to discuss one's personal experiences and life with one's colleagues in the military, and if one does not, it is perceived as an attempt to distance one's self. (Trial Tr. 316:7-317:17, July 14, 2010.) student at the Monterey Language Institute, and became friends with him. (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually Vossler heard a rumor that Chaplowski was gay. (Trial Tr. 318:22-
18 120. Vossler developed close friendships with other students at the
24 121. Vossler met Jerrod Chaplowski, another soldier and Korean language
1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 26 27 28
320:24, July 14, 2010.) Vossler was initially surprised at this, because "up until that point, [he] still held some very stereotyping beliefs about gays and lesbians," but as a heterosexual, he had no difficulty sharing living quarters with Chaplowski at any of the several Army bases where they were quartered together; in fact, Chaplowski was a considerate roommate and it was always a "great living situation." (Trial Tr. 319:1617, 321:2-10, 327:1-11, 329:20-25, July 14, 2010.) were with other servicemembers and the conversation turned to general subjects, Vossler had to be excessively cautious lest he inadvertently cast suspicion on Chaplowski and trigger an investigation under the Don't Ask, Don't Tell Act. (See Trial Tr. 327:12-328:20, July 14, 2010.) For example, if a group of soldiers was discussing their respective social activities over the previous weekend, Vossler had to refer to Chaplowski's dinner companion as "Stephanie" rather than "Steven;" even this small deception pained Vossler as it violated the Army's code of honor. (Id.) Chaplowski's ability or willingness to enforce the Army's policy banning offensive and discriminatory language. (Trial Tr. 328:22-329:4, July 14, 2010.) Homophobic slurs, epithets, and "humor" were commonplace and made Vossler uncomfortable; he noticed that Chaplowski did not confront those who employed them, although Vossler eventually did at times. (Trial Tr. 329:5-19, July 14, 2010.) service expired, instead enlisting in the Army National Guard, which he left in June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.)
8 122. The difficulty Vossler encountered was that when he and Chaplowski
18 123. Vossler also observed that the Don't Ask, Don't Tell Act infringed
25 124. Vossler chose not to reenlist in the active-duty Army after his tour of
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1 125. After leaving the military, Vossler became a vocal advocate for the 2 3 4 5 7 8 9 10 12 13 15 16 17 18 20 21 22 23 24 25 26 27 28
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repeal of the Don't Ask, Don't Tell Act because he believes the Act "doesn't seem in line with American values" and he "do[es]n't understand how it's a law in [this] country" because he perceives the Act to be discriminatory. (Trial Tr. 337:14-338:20, July 14, 2010.) and women who testified at trial, a credible, candid, and compelling witness. The Don't Ask, Don't Tell Act Defense Les Aspin to review his department's policy regarding homosexuals serving in the military. Ask, Don't Tell Act, which regulated the service of homosexual personnel in the United States military. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat. 1547 571, 10 U.S.C. 654. chairman of the Joint Chiefs of Staff Colin Powell's testimony before Congress: "military life is fundamentally different from civilian life;" "[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion;" and "the presence in the [A]rmed [F]orces of persons who demonstrate a propensity of intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and
6 126. The Court found Vossler, in common with the other former military men
11 127. After taking office in 1992, President Clinton directed Secretary of
14 128. Congress undertook its own review and, in 1993, enacted the Don't
19 129. The Act contains a series of findings that mirror the concerns of then-
1 2 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24
discipline and unit cohesion that are the essence of military capability." See 10 U.S.C. 654(a); cf. S. Rep. No. 103-112 at 283 (1993). Defense is authorized to formulate the implementing regulations, which are comprised of Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and 1304.26 (1993). The Secretary of Defense recently changed the implementing regulations. See Department of Defense Instruction ("DoDI") 1332.14 (2008) (incorporating March 29, 2010, changes); DoDI 1332.30 (2008) (incorporating March 29, 2010, changes). separated" from military service under one or more of the following circumstances. a. First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." 10 U.S.C. 654(b)(1). b. Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual8 or bisexual,9 or words to that effect . . . ." 10 U.S.C. 654 (b)(2). c. Third, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex." 10 U.S.C. 654 (b)(3).
3 130. The Act is codified at 10 U.S.C. 654; under 654(b), the Secretary of
11 131. The statute provides that a member of the Armed Forces "shall be
"The term 'homosexual' means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends 25 to engage in homosexual acts, and includes the terms 'gay' and 'lesbian'." 10 26 U.S.C. 654 (f)(1). 9 "The term 'bisexual' means a person who engages in, attempts to 27 engage in, has a propensity to engage, or intends to engages in homosexual 28 and heterosexual acts." 10 U.S.C. 654 (f)(2).
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1 132. The first two routes to discharge have escape clauses; that is, 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 Defendants' Evidence 18 134. Defendants specifically identified only the following items of legislative 19 20 21 22 23 24 25 26 27 28
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discharges via either subsection (b)(1) or (b)(2) create a rebuttable presumption which the servicemember may attempt to overcome. Through this exception, a servicemember may rebut the presumption by demonstrating the homosexual conduct which otherwise forms the basis for the discharge under the Act meets five criteria, including inter alia, that it is a "departure" from the servicemember's "usual and customary behavior," is unlikely to recur, and was not accomplished by use of force, coercion or intimidation. 10 U.S.C. 654 (b)(1)(A)-(E). the Act, the making of a statement that one is a homosexual. It allows the servicemember to rebut the presumption thus created by demonstrating that "he or she is not a person who engages in, attempts to engage, or has a propensity to engage in, or intends to engage in homosexual acts." 10 U.S.C. 654 (2).
10 133. An escape route also applies to the second basis for discharge under
history as those upon which they rely in support of their contentions that the Act significantly furthers governmental interests in military readiness or troop cohesion, or that discharge is necessary to those interests: (1) the Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report; and the testimony of the following witnesses during hearings on the proposed Policy: (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr. William Henderson; and (7) General Colin Powell. Defendants did not include precise citations to any portion of the above-referenced materials to support the constitutionality of the Policy.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
a.
The Crittenden Report (Trial Ex. 4) The Crittenden Report, formally titled Report of the Board
Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures, and Directives Dealing with Homosexuals, was prepared by that Board in 1957. U.S. Navy Captain S.H. Crittenden chaired the Board, which made detailed recommendations regarding the manner in which discipline against homosexual servicemembers should be imposed, including circumstances in which discharge would be appropriate, and whether discharge should be honorable or otherwise. The Report does not, however, discuss the impact of the presence of homosexuals serving in the Armed Forces on either military readiness or unit cohesion. Instead, the Board assumed, without investigation, that the presence of homosexuals had a negative effect and their exclusion was desirable, without elaborating on the basis for those assumptions; the Report never made any findings concerning the impact of homosexual servicemembers on military operations. Accordingly, the Crittenden Report is not evidence that discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion, or that discharge is necessary to those interests. The Report, in fact, is silent on those interests. It did conclude, however, that assumptions that homosexuals present security risks and are unfit for military service are not wellsupported by evidence. The Report also generally found homosexuals to be no more or less likely to be qualified to serve in the Armed Forces than heterosexuals according to a number of measures.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
b.
The PERSEREC Report (Trial Ex. 5) The PERSEREC Report, formally titled "Nonconforming Sexual
Orientation in the Military and Society," was published in 1988 by the Defense Personnel Security Research and Education Center and authored by Theodore R. Sabin and Kenneth E. Karois. The Report is a broad survey of then-prevailing legal trends regarding treatment of homosexuals, scientific views on homosexuality, and the history of social constructions of "nonconforming" sexual behavior. The Report notes a legal trend toward increasingly recognizing rights of homosexuals, a scientific trend toward recognizing homosexuality both as biologically determined and as a normal condition not necessarily indicating physical or mental disease, and a societal trend towards increasing acceptance of homosexual behavior. The PERSEREC Report generally dismisses traditional objections to service by homosexuals in the military as abstract, intangible, and tradition-bound. The Report cites no evidence that homosexual servicemembers adversely affect military readiness or unit cohesion. The Report discusses unit cohesion, but only to state that empirical research on the effect of homosexual servicemembers on unit cohesion is important and necessary in the future; it points to no existing empirical data. In general, the Report suggests the military begin a transition towards acceptance of homosexual servicemembers. c. The Rand Report (Trial Ex. 8) The Rand Report was prepared by the Rand Corporation's National Defense Research Institute in 1993 at the request of the Office of the Secretary of Defense, Les Aspin. The submitted summary of the
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Rand Report discusses only "Section 10," entitled "What Is Known about Unit Cohesion and Military Performance," as that is the sole section that bears on the issues presented here. Foremost among the Rand Report's conclusions is that no empirical evidence exists demonstrating the impact of an openly homosexual servicemember on the cohesion of any military unit. In its discussion of unit cohesion, the Report distinguished between social cohesion "the emotional bonds of liking and friendship of the members of a unit" (Trial Tr. 872:3-4, July 16, 2010) and task cohesion "a shared commitment to the group's mission or task goals" (Trial Tr. 872:4-6, July 16, 2010); concluded that according to public literature, only task cohesion has an even moderately positive correlation with unit performance; and found after controlling for task cohesion, social cohesion has almost no correlation to unit performance. The Report further opines that an openly homosexual servicemember is more likely to affect only social cohesion, rather than task cohesion, thus having little to no impact on a unit's military performance. The Report also concluded that merely assigning openly homosexual servicemembers to a unit can decrease negative feelings towards homosexuals, as fellow unit members tend to hold positive views of other individuals simply because they have been arbitrarily assigned to the same group. Moreover, contact with a group towards which negative feelings are held tends to decrease negative feelings towards that group; Professor Belkin described this phenomenon as "familiarity breeds tolerance." (Trial Tr. 297:9-19, July 14, 2010.) The Report opined that the relationship between negative feelings toward a group would not necessarily translate into disruptive behavior, and that
38 465
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
to the extent it did so translate, such behavior could be influenced and controlled by appropriate institutional attitudes and attitudes of unit leaders. d. Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255) Dr. Korb testified before the Senate Armed Services Committee on March 31, 1993, concerning the likely impact on unit cohesion if homosexuals were permitted to serve openly. According to Dr. Korb, there was no empirical research to support the view that homosexual servicemembers would disrupt unit cohesion, and that such evidence could not be obtained without integrating homosexuals into the military. Dr. Korb did concede, however, that in the short run immediately following integration of homosexual servicemembers, some negative effect on unit cohesion was likely, but did not point to any evidence in support of this view. Dr. Korb testified concerning the experiences of foreign militaries and domestic law enforcement agencies that had integrated homosexual servicemembers, and stated that their integration had not adversely affected unit cohesion or performance in those entities. e. Testimony of Dr. William Henderson (Trial Ex. 344 at 248) Dr. Henderson testified before the Senate Armed Services Committee on March 31, 1993, concerning the significance of unit cohesion. Dr. Henderson testified that the "human element" is the most important factor in warfare and the only force that motivates a unit to fight rather than flee or take cover. Dr. Henderson testified that creation of a cohesive unit is "significantly influenced by broad cultural
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
values, norms, and characteristics that are the result of a common socialization process and basic agreement among unit members about cultural values." Dr. Henderson testified that two types of unit cohesion exist: horizontal cohesion whereby troops identify with each other, and vertical cohesion whereby troops identify with their leaders. A member of the unit who refuses to conform to the unit's expectations will be isolated, and will undermine the unit's cohesiveness. Based on the views of servicemembers surveyed at that time, approximately 80% of whom opposed integration of homosexuals, homosexual servicemembers were so far outside the acceptable range of shared cultural values that they would not be accepted within military units, and would undermine unit cohesion. Dr. Henderson pointed to no specific empirical study supporting this assertion, however, and measured his testimony by suggesting that a homosexual servicemember who did not disclose his orientation would not disrupt unit cohesion. f. Testimony of Dr. David Marlowe (Trial Ex. 344 at 261) Dr. Marlowe testified before the Senate Armed Services Committee on March 31, 1993, concerning the significance of unit cohesion. He testified similarly to Dr. Henderson in his description of the importance of unit cohesion and of the two types of cohesion, i.e., horizontal and vertical cohesion. While openly acknowledging that in his scientific opinion, there was no empirical data conclusively deciding the question, he opined that openly serving homosexuals could undermine unit cohesion because homosexuality would not be an accepted cultural value among the other members of the unit. Dr. Marlowe qualified his opinion more than Dr. Henderson, however, as
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Dr. Marlowe also opined that a homosexual servicemember who did not "flaunt" his or her homosexuality, acted as a soldier first and foremost, and did not openly discuss his or her homosexuality would not undermine unit cohesion. Dr. Marlowe foresaw no problem with such a person serving in the Armed Forces. g. Testimony of General Colin Powell (Trial Ex. 344 at 707) General Colin Powell testified before the Senate Armed Services Committee on July 20, 1993. General Powell expressed his general support for the Policy as then proposed by President Clinton. General Powell testified that in his opinion open homosexuality was incompatible with military service and would undermine unit cohesion. General Powell opined that "behavior too far away from the norm undercuts the cohesion of the group." He testified to his belief that military training on tolerance could not overcome the innate prejudices of heterosexual servicemembers. He also testified that the Policy would improve military readiness, but only in that it settled the question of whether or not homosexuals could serve in the military, as the public debate had been a recent distraction to the military. His testimony implied that any final resolution of the issue, regardless of substance, would improve military readiness. General Powell testified that despite the official position of nondiscrimination towards homosexuals in the militaries of countries such as Canada, Germany, Israel, and Sweden, practice does not always match policy, and homosexuals often are subjected to discrimination in those militaries. General Powell also rejected attempts to draw parallels between exclusion of homosexuals and
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1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18
historical exclusion of African-Americans, because "skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics." Plaintiff's Evidence: Reports, Exhibits and Expert and Lay Testimony significantly advance the Government's interests in military readiness or unit cohesion. The testimony of former servicemembers provides ample evidence of the Act's effect on the fundamental rights of homosexual members of the United States military. Their testimony also demonstrates that the Act adversely affects the Government's interests in military readiness and unit cohesion. In addition to the testimony from the lay witnesses, Plaintiff introduced other evidence, from witnesses in such specialties as national security policy, military sociology, military history, and social psychology, on whether the Act furthered the Government's interests in military readiness or unit cohesion.
6 135. Plaintiff introduced evidence demonstrating the Act does not
19 Discharge of Qualified Servicemembers Despite Troop Shortages 20 136. From 1993 through 2009, Defendants discharged, pursuant to the Act, 21 22 23 24 25 26 27 28
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over 13,000 men and women serving in the United States Armed Forces. During the years between 1994 through 2001, Defendants discharged at least 7,856 servicemembers under the Act, according to a General Accounting Office Report entitled "Financial Costs and Loss of Critical Skills." (Trial Ex. 9 [2005 Government Accountability Office ("GAO") Report on the "Financial Costs and Loss of Critical Skills Due to [the] DOD's Homosexual Conduct Policy"].)
1 137. The combined branches of the Armed Forces discharged the following 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 (Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers discharged).) 19 11 (Trial Ex. 9, at 8.) 20 21 22 23 24
12 13 10
numbers of servicemembers from 1994, the first full year after adoption of the Don't Ask, Don't Tell Act, through the calendar year 2001:
Year 1994 1995 1996 1997 1998 1999 2000 2001 Total discharged 1994 2001
Number of Servicemembers Discharged 61610 75711 85812 99713 1,14514 1,04315 1,21316 1,22717 7,856
(Id.)
(Trial Ex. 85, Defs.' Objections and Resp. to Pl's. First Set of Req. for Admis. ("RFA Resp.") No. 33; Trial Ex. 9, at 8.)
14 15
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42 (showing 1,034 servicemembers discharged).) 25 16 (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42 26 (showing 1,213 servicemembers discharged).) 27 17 (Trial Ex. 85, RFA Resp. No. 37; Trial Ex. 9, at 8; but see id. at 42 28 (showing 1,227 servicemembers discharged).)
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1 138. Starting in 2002, after the United States began fighting in Afghanistan, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing 884 servicemembers discharged).)
19 18
the number of servicemembers discharged under the Act fell sharply, despite the greater raw number of military personnel. As but one example, in 2001, Defendants discharged at least 1,217 servicemembers pursuant to the Don't Ask, Don't Tell Act. In 2002, the number discharged under the Act fell to 885. Year 2002 2003 2004 2005 2006 2007 2008 2009 Total discharged 2002-2009 Number of Servicemembers Discharged 88518 77019 65320 72621 61222 62723 61924 27525 5,167
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing 769 servicemembers discharged).) 22 20 (Trial Ex. 85, RFA Resp. No. 40.) 23 24 25 26 27 28
21 22 23 24 25
(Trial Ex. 85, RFA Resp. No. 41.) (Trial Ex. 85, RFA Resp. No. 42.) (Trial Ex. 85, RFA Resp. No. 43.) (Trial Ex. 85, RFA Resp. No. 44.) (Trial Ex. 85, RFA Resp. No. 45.)
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1 139. The decline in discharges after 2001, according to Dr. Nathaniel Frank, 2 3 4 5 6 7 Discharge of Servicemembers with Critically Needed Skills and Training 8 140. Among those discharged pursuant to the Act were many 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28
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illustrates that during wartime the military retains servicemembers known to be homosexual, despite the Don't Ask, Don't Tell Act requiring discharge, because of the heightened need for troops. (Trial Tr. 196:5198:6, 257:21-258:6, July 13, 2010.)
servicemembers with critically needed skills. According to the Government's own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called "critical skills," including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine. (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. and Loss of Critical Skills Due to [the] DOD's Homosexual Conduct Policy" (Trial Ex. 9), Professor Frank pointed out that through fiscal year 2003, several hundred medical professionals had been discharged pursuant to the Act, yet a 2003 Senate report described a lack of medical care for wounded troops returning from the Arabian Gulf and the resulting negative impact on physical health and troop morale. (Trial Tr. 258:10-259:2, July 15, 2010.) At the same time that more than one-hundred thousand U.S. troops were deployed to serve in combat in Iraq and Afghanistan, several hundred servicemembers with
18 141. For example, relying on the 2005 GAO Report on the "Financial Costs
1 2 3 4
"critical" language skills, including many qualified as Farsi and Arabic speakers and interpreters, were discharged under the Act. (Trial Ex. 9; Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010.)
5 The Act's Impact on Military Recruiting 6 142. Dr. Lawrence Korb, currently a senior fellow at the Center for American 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to the appointments described above, Dr. Korb is on the faculty at Georgetown University. He also has served as dean of the Graduate School of Public and International Affairs at the University of Pittsburgh, on the Council for Foreign Relations, as Director of the Center for Public Policy Education at the Brookings Institution, and as Director for Defense Policy Studies for the American Enterprise Institute. This is only a partial list of his appointments and service. (Trial Ex. 350.) The Court found Dr. Korb an extraordinarily well-credentialed and powerfully credible witness.
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26
Progress, with an extraordinary background in military preparedness and national security issues,26 including an appointment under President Ronald Reagan as an Assistant Secretary in the Department of Defense, testified before Congress in 2007 about the difficulty the military was experiencing in finding and retaining enough qualified recruits. The crisis in recruiting qualified candidates became particularly severe after combat began in 2001, he testified. (Trial Tr. 1027:24-25, 1028:1-2, July 20, 2010.) price tag; Dr. Korb pointed to advertisements various branches of the Armed Forces run during the televised Super Bowl football games as an example of an effective but very costly recruiting tool. Successful recruiting includes not only the costs for sending out military recruiters all around the country, but also the costs of conducting medical and educational testing on recruits as well as the expense of their basic training. The size of the financial investment needed to prepare a
15 143. In general, successful military recruiting efforts come with a very high
1 2 3 4 5 6 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 25 26 27 28
servicemember for an operational unit can reach millions of dollars. Dr. Korb testified. (Trial Tr. 1028:18-1029:13, July 20, 2010.) Citing a Pentagon study, Dr. Korb opined that for every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. (Trial Tr. 1029:6-23, July 20, 2010.) negatively affects military recruiting in two ways: its existence discourages those who would otherwise enlist from doing so, and many colleges and universities will not permit military recruiting or Army ROTC programs on campus because the Act's requirements violate their nondiscrimination policies. (Trial Tr. 1030:12-21, July 20, 2010.) annually due to the Don't Ask, Don't Tell Act, if one includes both those who are discharged under it and those who decide not to re-enlist because of it. He conceded, however, that it is very difficult to quantify the number of those who decide not to enlist because of the Policy. (Trial Tr. 1030:1-10, July 20, 2010.) Professor Frank also testified on this subject, and based on data from the U.S. Census, the UCLA School of Law Williams Institute, and other sources, opined that if the Act were repealed, the military would gain approximately 40,000 new recruits and approximately 4,000 members would re-enlist every year rather than leave voluntarily. (Trial Tr. 205:6-17, July 13, 2010.) enactment of the Act, "it could have cost the [Department of Defense] about $95 million in constant fiscal year 2004 dollars to recruit replacements for service members separated under the policy. Also
7 144. With that background, Dr. Korb opined the Don't Ask, Don't Tell Act
13 145. Dr. Korb estimated that the military loses 5,000 men and women
24 146. The 2005 GAO Report estimated that over the ten-year period after
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1 2 3 4 5
the Navy, Air Force, and Army estimated that the cost to train replacements for separated service members by occupation was approximately $48.8 million, $16.6 million, and $29.7 million, respectively." (Trial Ex. 85, RFA Resp. No. 21.)
6 Admission of Lesser Qualified Enlistees 7 147. Defendants discharged over 13,000 members of the Armed Forces 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 "Moral waivers" are used to admit recruits who otherwise would not have been eligible for admission because of their criminal records, i.e., 27 convictions for felonies and serious misdemeanors, or admitted past 28 controlled substance abuse. (Trial Tr. 207:7-208:24, July 13, 2010.)
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27
under the Don't Ask, Don't Tell Act since 1993. (Trial Tr. 195:5-8, 203:21-204:5.) Plaintiff introduced evidence that while Defendants continued to enforce the Act by discharging servicemembers under it albeit in dramatically reduced numbers after 2001, they also began to admit more convicted felons and misdemeanants into the Armed Forces, by granting so-called "moral waivers"27 to the policy against such admissions. (Trial Tr. 199:1-17, July 13, 2010; see supra notes 10-25 and accompanying text.) misdemeanants allowed to join the ranks of the military forces, Professor Frank testified that increased numbers of recruits lacking the required level of education and physical fitness were allowed to enlist because of troop shortages during the years following 2001. (Trial Tr. 199:1-11, July 13, 2010.) Log Cabin's evidence went uncontradicted that those who are allowed to enlist under a "moral waiver" are more likely to leave the service because of misconduct and more likely to
16 148. In addition to the increased numbers of convicted felons and
1 2 4 5 6 7 8 9 10 11 12 13
leave without fulfilling their service commitment than others who joined the Armed Forces. (Trial Tr. 209:2-13, July 13, 2010.) the U.S. Armed Forces to lower educational and physical fitness entry standards as well as increase the number of "moral waivers" to such an extent that, in his opinion, it became difficult for the military to carry out its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same time, discharging qualified servicemembers under the Don't Ask, Don't Tell Act simply "does not make sense" in terms of military preparedness because, in his words, the military is "getting rid of those who are qualified to serve and admitting those who aren't." (Trial Tr. 1025:1520, July 20, 2010.)
3 149. Dr. Korb testified that eventually the troop shortages after 2001 caused
14 Other Effects of the Policy 15 150. Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has 16 17 18 19 20 21 22 23 24 25 26 27 28
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on military preparedness. He opined that in order for the military to perform its mission successfully, it must mold persons from vastly different backgrounds who join it into a united and task-oriented organization. He described the military as a meritocracy, but testified that the Don't Ask, Don't Tell Act detracts from the merit-based nature of the organization, because discharges under the Act are not based on the servicemember's failure to perform his or her duties properly, or on the effect of the soldier's presence on the unit's morale or cohesion. (Trial Tr. 1031:2-1033:10, July 20, 2010.)
1 Decreased and Delayed Discharge of Suspected Violators of the Act 2 151. LCR also produced evidence demonstrating that Defendants routinely 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28
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delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments. In other words, if Defendants began an investigation of a servicemember suspected of violating the Act, the investigation would be suspended if the subject received deployment orders; not until he or she returned from combat assuming this occurred, of course would the investigation be completed and the servicemember discharged if found to have violated the Act. Thus, Defendants deployed servicemembers under investigation for violating the Act to combat missions or, if they were already so deployed, delayed the completion of the investigation until the end of the deployment. (Trial Tr. 196:5-24, July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11, 188:13-190:9, Apr. 16, 2010.) Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct. If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation. It defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station.
16 152. This evidence, in particular, directly undermines any contention that the
1 153. Taken as a whole, the evidence introduced at trial shows that the effect 2 3 4 5 6 8 9 11 12 13 14 15 16 The Act is Not Necessary to Advance the Government's Interests 17 Defendants' Admissions 18 156. Defendants have admitted that, far from being necessary to further 19 20 21 22 23 24 25 26 27 28
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of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness.
7 154. The Act has caused the discharge of servicemembers in occupations
10 155. At the same time that the Act has caused the discharge of over 13,000
significantly the Government's interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest. President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009: "Don't Ask, Don't Tell" doesn't contribute to our national security . . . preventing patriotic Americans from serving their country weakens our national security . . . . [R]eversing this policy [is] the right thing to do [and] is essential for our national security. (Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.)
1 157. President Obama also stated regarding the Act on October 10, 2009, 2 3 4 5 6 8 9 10 11 12 13 14 Defendants' Contention that the Act is Necessary to Protect Unit 15 Cohesion and Privacy 16 159. Defendants point to the Act's legislative history and prefatory findings 17 18 19 20 22 23 24 25 26 27 28
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"We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford for our military's integrity to force those willing to do so into careers encumbered and compromised by having to live a lie." (Trial Ex. 306; Trial Ex. 85, RFA Resp. No. 12.) these sentiments through a verified Twitter account, posted to the Joint Chiefs of Staff website: "Stand by what I said [testifying in the U.S. Senate Armed Services Committee on February 2, 2010]: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity." (Trial Ex. 330.)
7 158. Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed
as evidence that the Policy is necessary to protect unit cohesion and heterosexual servicemembers' privacy. In particular, they quote and rely on General Colin Powell's statements in his testimony before Congress in 1993. service of gays and lesbians in the Armed Forces and the narrow nature of his concerns. (Trial Ex. 344 [Policy Concerning Homosexuality in the Armed Forces: Hearings Before the S. Comm. on Armed Servs., 103rd Cong. (statement of General Colin Powell, Chairman, Joint Chiefs of Staff)] at 709). He emphasized his concern that "active military service is not an everyday job in an ordinary
21 160. General Powell expressed his qualified support for the continued
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workplace . . . . There is often no escape from the military environment for days, weeks and often months on end. We place unique demands and constraints upon our young men and women not the least of which are bathing and sleeping in close quarters." (Id. at 762; 709 ("Our concern has not been about homosexuals seducing heterosexuals or heterosexuals attacking homosexuals . . . .").) changed his views since 1993 on the necessity of the Policy and now agrees with the current Commander-in-Chief that it should be reviewed. (Trial Tr. 221:7-11, July 13, 2010.) not necessary in order to further the governmental interest that General Powell expressed, i.e., unit cohesion and particularly the concern that cohesion might be eroded if openly homosexual servicemembers shared close living quarters with heterosexuals. dozens of different types of military housing on at least three continents, testified his quarters ranged from a villa in Eskan Village, Saudi Arabia, where he and the others quartered there each had private bedrooms and bathrooms, to a dormitory-type facility at the Prince Sultan Air Base in Saudi Arabia, where at first he had a private room and bath until the troop build-up before the invasion of Iraq led to several men sharing a room, with a private bathroom that was used by only one person at a time, to temporary quarters in a tent at Balad Air Base in Iraq shared by six to eight men who obtained limited privacy by hanging up sheets.
7 161. Plaintiff introduced uncontradicted testimony that General Powell has
11 162. Plaintiff also produced powerful evidence demonstrating that the Act is
16 163. Michael Almy, who during thirteen years of active service lived in
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1 164. In his deployments to Saudi Arabia and Iraq, Almy was never quartered 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28
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in housing that had open bay showers, nor did he ever see such housing for enlisted members or officers. (Trial Tr. 748:3-750:25, July 16, 2010.) The typical arrangement in Saudi Arabia was for enlisted servicemembers and officers to have the same type of facilities, including bathroom and shower facilities; officers typically did not have to share rooms, and enlisted personnel usually shared a bedroom and bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Open bay showers are the exception in military quarters; most service members only use them during basic training. (Trial Tr. 759:12-19, July 16, 2010.) Fort Benning, the recruits slept in a large open room with sixty bunk beds and shared a large communal bathroom with toilets in individual stalls and semi-private showers. (Trial Tr. 1154:25-1155:15, July 20, 2010.) Anthony Loverde testified that only during basic training was he housed in barracks where open bay showers were the only option; he had access to single stall shower facilities even when stationed at Bagram Air Base in Afghanistan and at Balad Air Base in Iraq. (Trial Tr. 1378:3-15, 1385:18-1386:12, July 21, 2010.) testified regarding his living quarters while he served as an enlisted man in the Army; he shared a "not spacious" bedroom and also a bathroom with a roommate. (Trial Tr. 330:4-11, July 14, 2010.) Although Vossler learned his roommate was gay, Vossler had no problems sharing quarters with him and thought he was a good roommate. (Trial Tr. 329:20-330:21, July 14, 2010.)
11 165. Similarly, John Nicholson testified that while he was in basic training in
20 166. Other servicemembers confirmed this testimony. Stephen Vossler
1 167. Professor Aaron Belkin confirmed this evidence in his testimony; his 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 19 20 21 22 23 24 25 26 27 28
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research into military architecture revealed that apart from basic training sites and service academies where there are open showers, servicemembers usually have access to single stall showers. (Trial Tr. 617:21-619:1, July 15, 2010.) According to Professor Belkin, "the army, in recent years, has implemented something called the one-plus-one barracks design standard. What that means is that servicemembers are housed in an arrangement where they each have their own bedroom and there is a bathroom between the two bedrooms that they share." (Trial Tr. 618:8-13, July 15, 2010.) Three-fourths of the troops quartered in combat zones in Afghanistan and Iraq had access to single stall showers, according to his research. (Trial Tr. 626:3-8, July 15, 2010.) persuasive. The testimony of both its lay and expert witnesses revealed that the Act not only is unnecessary to further unit cohesion, but also harms the Government's interest. Act, he witnessed firsthand what occurred when an unprepared junior officer was forced to take over. He testified that "[t]he maintenance of the equipment, the mission overall, the availability the up time of the equipment, the availability of the equipment to meet the mission suffered" and there was "a huge detrimental effect to the morale" of the troops he commanded after he was relieved of his command. (Trial Tr. 813:21-25, 814: 1-6, July 16, 2010.) Almy testified, "Virtually every day on my base on Spangdahlem, I would encounter one of my former troops who wanted me back on the job as their officer and leader."
14 168. Plaintiff's evidence regarding unit cohesion was equally plentiful and
18 169. After Michael Almy was relieved of his command abruptly under the
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(Trial Tr. 814:2-6, July 16, 2010.) His assessment was confirmed by another officer in the squadron, who wrote that the squadron "fell apart" after Major Almy was relieved of his duties, illustrating "how important Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt., USAF, 606th Air Control Squadron].) working and dedicated junior officer who excelled as an [o]fficer of the [d]eck" who "played an important role in enhancing the ship's strong reputation." (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and Counseling Record]; Trial Tr. 966:14-17.) He specifically noted that "[h]er sexual orientation has not disrupted good order and discipline on board USS SHILOH." (Trial Ex. 139; Trial Tr. 966:23-24.) Kopfstein testified that after she stopped concealing her homosexuality while serving on the USS Shiloh, she had many positive responses, and the ability of her fellow crew members to trust her improved, thus aiding the establishment of teamwork. (Trial Tr. 951:10-11, 979:8-21, 25, 980:1, July 20, 2010.) pursuant to the Don't Ask, Don't Tell Act did not further the Government's interest in unit cohesion. In recommending the Air Force retain Loverde, they commended him for being "nothing less than an outstanding [non-commissioned officer]" and "a strong asset" with "an exceptional work ethic" and "the highest level of military bearing, honesty, and trustworthiness." (Trial Exs. 136 [Letter from Michael Yakowenko, CM Sgt.], 137 Letter from Richard Horn, SM Sgt.].) One wrote: "If I ever had the opportunity to build my 'dream team' for work, I
7 170. Jenny Kopfstein's commanding officer wrote that she was a "hard
19 171. Anthony Loverde's superiors unquestionably felt that his discharge
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would take an entire crew of SSgt. Loverde over most other workers . . . ." (Trial Ex. 137.) of California, Berkeley, and one of the contributors to the 1993 Rand Report on the Don't Ask, Don't Tell Act, testified regarding social and task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.) Professor MacCoun holds a Ph.D. in psychology from Michigan State University, was a post-doctoral fellow in psychology and law at Northwestern University, spent seven years as a behavioral scientist at the RAND Corporation,28 and has a distinguished research and publication record. (Trial Tr. 856:16-864:7, July 16, 2010.) The Court found his testimony cogent and persuasive. that task cohesion was paramount; it was a more important predictor of military performance than social cohesion, and service in the Armed Forces by openly homosexual members was not seen as a serious threat to task cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:2125, 876:13-21, July 16, 2010.) Therefore, the recommendation to Secretary of Defense Les Aspin from the RAND Corporation in the1993 Report was that sexual orientation should not be viewed as germane to service in the military; the 1993 Report made various recommendations regarding the implementation of this change. (Trial Ex. 8 [Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16, 2010.)
3 172. Robert MacCoun, Professor of Law and Public Policy at the University
13 173. According to Professor MacCoun, the RAND working group concluded
The RAND Corporation is a nonpartisan, private, nonprofit research corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16, 28 2010.) 27
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28
1 174. Thus, the evidence at trial demonstrated that the Act does not further 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28
58 485
significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants' discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. thereafter in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness. Policy "significantly furthers" the Government's interests or that it is "necessary" in order to achieve those goals. Plaintiff has relied not just on the admissions described above that the Act does not further military readiness, but also has shown the following: by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness;
12 175. The abrupt and marked decline 50% from 2001 to 2002 and steadily
18 176. In summary, Defendants have failed to show the Don't Ask, Don't Tell
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by causing the discharge of otherwise qualified servicemembers with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness;
by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness;
Defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion;
by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest.
23 177. The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships.
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1 178. The Act denies them the right to speak about their loved ones while 2 3 4 5 7 8 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28
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serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service. communication from which an unauthorized reader might discern their homosexuality. the Act prevented them from talking openly with their fellow servicemembers about everyday personal matters or from soliciting after hours with their colleagues. (Trial Tr. 821:19-822:9, July 16, 2010 (Almy); Trial Tr. 1360:1-1361:17, July 21, 2010 (Loverde); Trial Tr. 931:22-932:11, July 16, 2010; Trial Tr. 957:6-22, July 20, 2010 (Kopfstein).) This testimony, as well as that from Steven Vossler (Trial Tr. 327:12-328:20, July 14, 2010), demonstrates that the Act's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually impede military readiness and unit cohesion rather than further these goals. on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. Joseph Rocha, eighteen- yearsold and stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14, July 15, 2010.) His fear was so great, if fact, that he
6 179. The Act discharges them for including information in a personal
9 180. Michael Almy, Anthony Loverde, and Jenny Kopfstein all testified that
21 181. Many of the lay witnesses also spoke of the chilling effect the Act had
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initially refused to answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15, July 15, 2010.) chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 2010 (Nicholson); Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).) such as the plaintiff in this lawsuit, that seek to change the military's policy on gay and lesbian servicemembers; it also prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified during trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doe Decl.] 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21709:4, July 16, 2010.) with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer's sexual orientation. are broader than reasonably necessary to protect the Government's interest.
3 182. John Nicholson and Anthony Loverde also testified about a similar
8 183. The Act prevents servicemembers from openly joining organizations,
17 184. Furthermore, as discussed above, the Act punishes servicemembers
24 185. These consequences demonstrate that the Act's restrictions on speech
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1 186. The Act's restrictions on speech lead to the discharge of 2 3 5 6 7 8 9 10 11 12 Jurisdiction 13 1. 14 15 16 17 Standing 18 2. 19 20 21 3. 22 23 24 4. 25 26 27 28
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servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. testimony of the lay witnesses but also of the experts who testified and Defendants' own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government's interests. CONCLUSIONS OF LAW The Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 1346 and 2201. Venue is properly laid in the Central District of California under 28 U.S.C. 1391(e)(2) and (3).
4 187. The net effect of these discharges, as revealed not only in the
Plaintiff Log Cabin Republicans, a non-profit corporation, has established standing to bring and maintain this suit on behalf of its members. Plaintiff bears the burden of establishing its standing to invoke federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To bring suit on behalf of its members, an association must establish the following: "(a) [at least one of] its members would otherwise have standing to sue in [his or her] own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the
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claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). To satisfy the first element of associational standing, a organization must demonstrate constitutional standing as to at least one member of the organization, as follows: (1) injury in fact; (2) caused by the defendants; (3) which likely will be redressed by a favorable decision by the federal court. Lujan, 504 U.S. at 560-61; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). As to the associational standing requirements, Plaintiff established at trial that the interests it seeks to vindicate in this litigation are germane to LCR's purposes, satisfying the second requirement for associational standing. Plaintiff satisfied the third requirement of associational standing, "that the suit not demand the participation of individual members." Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401, 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only declaratory and injunctive relief in its First Amended Complaint; when "the claims proffered and relief requested do not demand individualized proof on the part of its members," such as when only declaratory and prospective relief are sought, the individual members of an association need not participate directly in the litigation. Id.; see also Hunt, 432 U.S. at 343 (citing Warth v. Seldin, 422 U.S. 490, 515 (1975)). Plaintiff satisfied the first requirement of associational standing as well, i.e., whether there exists at least one member of the association who could maintain this suit in his or her own right. Defendants' contention that neither of the two members Plaintiff relies upon to confer
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associational standing on it meets the requirements for that role, because neither was a member of Log Cabin Republicans continuously from the date of the commencement of this action until the date of trial, lacks merit. Standing in this case should be examined as of April 28, 2006, the date Plaintiff filed its First Amended Complaint. (See Doc. No. 170 at 15.) As of that date, at least one of Log Cabin's members, John Nicholson, had standing and could have pursued the action individually. See supra Findings of Fact Nos. 12-20. Nicholson's membership in Log Cabin Republicans has been uninterrupted and continuous since April 28, 2006 to the present. Nicholson satisfies all three of the requirements for constitutional standing, i.e., "injury in fact" caused by the defendants (his discharge by Defendants pursuant to the Policy), which is redressable by the relief sought in this lawsuit, as he testified he would rejoin the Army if the policy was no longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.) Even if the Court looks to the date the original Complaint was filed as the relevant one for standing purposes, however, Plaintiff still satisfies the associational standing requirements, as Plaintiff proved by a preponderance of the evidence at trial that John Doe was a member in good standing as of October 12, 2004. See supra Findings of Fact Nos. 12-22. John Doe has established the three elements of constitutional standing: he faces a concrete injury caused by Defendants discharge from the Army Reserve which is likely, not speculative, in nature, given the mandatory language of the Don't Ask, Don't Tell Act, see 10 U.S.C.
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654(b)(2), and which would be redressed by a favorable by the Court in this action. A plaintiff who has established standing must retain his or her "personal stake" in the litigation throughout the proceedings. See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal stake" in the lawsuit, a court loses the ability to grant relief and must dismiss the action on the basis of mootness because the plaintiff no longer satisfies the redressability element of constitutional standing. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 68-72 (1997) (mootness); Williams, 517 F.3d at 1128 (redressability). The cases cited above addressing loss of standing do not arise in an associational standing context, however. Whether one regards Plaintiff Log Cabin Republicans or John Doe as the party whose standing is at issue, neither lost a "personal stake" in the litigation when Doe's annual period of membership lapsed. After the year covered by the initial payment of membership dues, Doe still served in the Army Reserve and still was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake in the outcome of the case, and his injury his susceptibility to discharge under the Act continued to be redressable by favorable resolution of the lawsuit. Nor has standing been lost in this case because of a change in circumstances rendering the subject matter of the action moot. The Act has not been repealed and the challenged policy is still in effect; Doe is
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still serving and subject to discharge under it;29 Nicholson already has been discharged under it and cannot re-enlist as he wishes to do. Finally, the dispute over the constitutionality of the Act has not been resolved. Likewise, the redressability aspect of constitutional standing remains alive despite the lapse in Doe's dues-paying membership status. Doe's imminent injury the mandatory nature of his discharge under the policy would be addressed through a favorable ruling in this action. Even if Defendants were correct that Log Cabin Republicans failed to prove standing through Doe based on the lack of evidence he paid dues after 2005, it does not follow that Plaintiff could not maintain its claims. Plaintiff had standing to file suit based on the undisputed evidence of Doe's membership as of October 12, 2004, the date Log Cabin Republicans filed this action. (See supra Findings of Fact No. 7.) Assuming Doe's membership lapsed a year later, in early September 2005, Plaintiff lacked standing temporarily from that time until April 28, 2006, when Nicholson became a member of Log Cabin Republicans. Courts have recognized that a plaintiff who possesses standing when it brings suit, later loses it, and then regains standing before entry of judgment, may still maintain its claims. See, e.g., Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005) (finding plaintiff that owned patent at outset of litigation, assigned it to subsidiary, then reacquired it before judgment may maintain an infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64, 70, 73 (2005).
29
In fact, Plaintiff agreed to Defendants' request for a stay of this case if Defendants would suspend discharges under the Policy, but Defendants 28 refused to do so.
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Thus, assuming that Log Cabin Republicans lacked standing at some point between early September 2005 and April 28, 2006, it still may maintain its claims now. Defendants' suggestion that LCR "manufactured" its standing for purposes of this lawsuit lacks merit. (See Doc. No. 188 [Defs.' Proposed Findings of Fact & Conclusions of Law] at 3.) The only authority Defendants cite on this point is Washington Legal Foundation v. Leavitt, 477 F. Supp. 2d 202, 211 (D.D.C. 2007), holding the manufacture of standing "weakens" an association's ability to maintain a lawsuit on behalf of its members. Washington Legal Foundation was based on facts not present in the record here, however. As that court explained, the Washington Legal Foundation's board of directors explicitly decided to bring suit, and then set about to find and recruit persons who would confer standing on it. By contrast, the initiative for filing the present action came from the rank and file of the LCR membership. See supra Findings of Fact No. 22. Washington Legal Foundation is not binding authority on this Court, but to the extent it provides guidance, it only holds that "manufacture" of standing weakens but does not destroy an association's ability to maintain its suit. Furthermore, there is no evidence here that LCR manufactured standing, so Washington Legal Foundation is factually dissimilar as well. Evidence Considered by the Court In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held a plaintiff challenging the validity of a law on its face must establish
25 Plaintiff's Burden on a Facial Challenge
67 494
1 2 3 4 5 6 25. 7 8 9 10 11 12 13 14 15 26. 16 17 18 19 27. 20 21 22 23 24 25 26 27 28
that "no set of circumstances exists under which the Act would be valid." Id. at 745. The defendants in Salerno were detained pending trial under the provisions of the Bail Reform Act; they challenged the Act, on its face, claiming it unconstitutionally violated the Fifth and Eighth Amendments. More recently, in Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the Supreme Court noted the criticisms leveled at the Salerno standard and recognized an alternative the test as follows: "a facial challenge must fail where the statute has a 'plainly legitimate sweep.'" Id. at 449 (citing Washington v. Glucksberg, 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)); see also United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, 1587 (2010) (citing Glucksberg and noting the existence of two standards for facial challenges outside the First Amendment context). The Court considers the evidence presented at trial in this facial challenge not for the purpose of considering any particular application of the Don't Ask, Don't Tell Act, but rather for the permissible purposes described in Conclusions of Law No.36-41, infra. Plaintiff's evidence, as described above, amply illustrates that the Act does not have a "plainly legitimate sweep." Rather, Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence between servicemembers and their family members and friends, and conversations between servicemembers about their daily off-duty activities. (See supra Findings of Fact Nos. 27, 28, 75, 93, 96-99, 113.)
68 495
1 28. 2 3 4 5 6 7 8 29. 9 10 11 12 30. 13 14 15 16 17 18 19 20 31. 21 22 23 24 25 26 27 28
Plaintiff also has proven that the Act prevents servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge. All of these examples, as well as others contained in the evidence described above, reveal that Plaintiff has met its burden of showing that the Act does not have a "plainly legitimate sweep." (See supra Findings of Fact Nos. 53, 76, 92, 112.) Defendants rely on Salerno and its progeny, particularly Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), in urging the Court to reject Log Cabin's facial challenge. (Defs.' Mem. Cont. Fact & Law at 5; Trial Tr. 1670:1421-1671:23, 1684:12-14, July 23, 2010.) This reliance is misplaced. In Cook, the First Circuit reasoned a facial challenge the Don't Ask, Don't Tell Act failed because Lawrence "made abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion," and "the Act includes such other types of sexual activity" because it "provides for the [discharge] of a service person who engages in a public homosexual act or who coerces another person to engage in a homosexual act." 528 F.3d at 56 (citing Lawrence, 539 U.S. at 578). The Court is not bound by this out-of-Circuit authority, and furthermore finds the logic of Cook unpersuasive. First, Cook employed the formulation from Salerno rather than the Supreme Court's more recent articulation of the test for facial challenges set forth in Washington State Grange. Moreover, the examples the Cook court cited as grounds for discharge "under the Act" actually are bases for discharge of any servicemember, whether the conduct in question is homosexual or heterosexual. In fact, the Cook decision provides no citation to any
69 496
1 2 3
provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for discharge under that legislation.
4 Evidence Properly Considered on a Facial Challenge 5 32. 6 7 8 9 33. 10 11 12 13 14 15 16 17 18 19 34. 20 21 22 23 24 25 26 27 28

70 497
The Court finds meritless Defendants' contention that because Plaintiff challenges the constitutionality of the statute on its face, rather than challenging its application, the only evidence the Court should indeed may consider, is the statute itself and the bare legislative history. In United States v. O'Brien, 391 U.S. 367 (1968), the government charged and convicted the defendant for burning his draft card; the defendant contended the law under which he was prosecuted was unconstitutional because Congress enacted it for the unlawful purpose of suppressing speech. Id. at 383. The Supreme Court rejected this argument, holding "under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Id. In part, the O'Brien Court founded its reasoning on the difficulty of discerning a unified legislative "motive" underlying any given enactment: "What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it . . . ." Id. at 384. Thus, O'Brien instructs that when "a statute . . . is, under well-settled criteria, constitutional on its face," a court should not void the law based on statements by individual legislators. Id. Thus, while examining the legislative record, the Court must not pay heed to any illegitimate motivations on the part of the enacting lawmakers.
1 35. 2 3 4 5 6 7 8 9 10 11 12 36. 13 14 15 37. 16 17 18 19 38. 20 21 22 23 24 25 26 27 28
O'Brien does not stand for the proposition urged by Defendants, however, that when deciding whether a challenged law "is, under wellsettled criteria, constitutional on its face," this Court should limit itself to examining only the statute's legislative history. In fact, in the O'Brien decision the Supreme Court specifically pointed to two cases, Grosjean v. American Press Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot, 364 U.S. 339 (1960), noting that they "stand, not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional." O'Brien, 391 U.S. at 394 (emphasis added). In both Grosjean and Gomillion, the Court noted, the purpose of the law was irrelevant "because [of] the inevitable effect the necessary scope and operation." Id. at 385 (citations omitted). Therefore, under O'Brien, Grosjean, and Gomillion, the court may admit and examine evidence to determine the "scope and operation" of a challenged statute; nothing in any of these authorities limits the Court's discretion to consider evidence beyond the legislative history. Defendants rely in vain on City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984), as support for their position regarding the inadmissibility of Plaintiff's evidence. Foley arose out of a discovery dispute in a facial constitutional challenge to a Las Vegas zoning ordinance restricting the location of "sexually oriented businesses." Id. at 1296. One of the affected businesses sought to depose city officials regarding their motives in enacting the ordinance; after the city failed in its efforts to obtain a protective order from the District Court, it sought mandamus relief from the Ninth Circuit Court of Appeals. Id.
71 498
1 39. 2 3 4 5 6 7 8 9 10 11 40. 12 13 14 41. 15 16 17 18 42. 19 20 21 22 23 43. 24 25 26 27 28
The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged illicit legislative motive," and relying on O'Brien, granted the writ, directing the district court to issue a protective order. Id. at 1299. In rejecting the arguments of the party seeking to depose the legislators, the Foley court described the following types of evidence appropriately considered by a court asked to determine a First Amendment challenge: "objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of the proceedings." Foley, 747 F.2d at 1297 (citations omitted). The Ninth Circuit also noted in Foley that "basic analysis under the First Amendment . . . has not turned on the motives of the legislators, but on the effect of the regulation." Id. at 1298 (emphasis added). Defendants correctly point out that the authorities discussed above hold that isolated (and in this case, sometimes inflammatory) statements of Senators and House members during the Don't Ask, Don't Tell Act legislative hearings should not be considered by the Court. Nevertheless, this does not affect, much less eviscerate, the language in the authorities cited above that Defendants would have the Court ignore, holding that a court deciding a facial challenge can and should consider evidence beyond the legislative history, including evidence regarding the effect of the challenged statute. As this case includes a facial challenge on substantive due process as well as First Amendment grounds, the Court notes that although the authorities discussed above dealt with evidence properly considered by courts in resolving First Amendment facial challenges, their holdings regarding the admissibility of broad categories of testimonial and
72 499
1 2 3 4 5 6 7 44. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 45. 23 24 25 26 27 28
documentary evidence are echoed in the authorities considering facial challenges on due process grounds. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009). In Lawrence, petitioners pled nolo contendere to charges under a Texas statute forbidding certain sexual acts between persons of the same sex. They then raised a facial challenge to the statute's constitutionality under the Due Process and Equal Protection clauses of the Fourteenth Amendment. In reaching its decision that the Texas statute indeed was unconstitutional, the Supreme Court's majority reviewed at length the history of the common law prohibiting sodomy or regulating homosexuality, the effect of the statute ("The stigma this criminal statute imposes, moreover, is not trivial . . . . We are advised that if Texas convicted an adult for private consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. . . ."), facts surrounding enactment of the statute, and comparison with other laws. Lawrence, 539 U.S. at 567-79. Accordingly, the Court's determination of Plaintiff's substantive due process and First Amendment challenges to the Act refers to evidence properly adduced by Log Cabin Republicans and admitted at trial. (As noted above, apart from the Act itself and its legislative history, Defendants admitted no evidence and produced no witnesses.)
73 500
1 2 46. 3 4 5 6 7 8
Plaintiff's Challenge under the Due Process Clause Plaintiff claims the Don't Ask, Don't Tell Act violates its members' substantive due process rights, identified in Lawrence as rights associated with the "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Lawrence, 539 U.S. at 562. (FAC 4, 38-43; Doc. No. 190 [Pl.'s Mem. Cont. Fact & Law] at 32-33.)
9 The Standard of Review 10 47. 11 12 13 48. 14 15 16 17 18 19 20 21 49. 22 23 24 25 26 50. 27 28

74 501
As set out more fully in the July 6, 2010, Order, courts employ a heightened standard of review when considering challenges to state actions implicating fundamental rights. (July 6, 2010, Order at 6-9.) After the United States Supreme Court's decision in Lawrence v. Texas, recognizing the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct," 539 U.S. at 562, the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), held the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819. Thus, in order for the Don't Ask, Don't Tell Act to survive Plaintiff's constitutional challenge, it must "[1] advance an important governmental interest, [2] the intrusion must significantly further that interest, and [3] the intrusion must be necessary to further that interest." Id. Noting the Act "concerns the management of the military, and judicial deference to . . . congressional exercise of authority is at its apogee" in
1 2 3 4 5
this context, Witt went on to decide the Act advances an "important governmental interest." 527 F.3d at 821 (citations omitted). Accordingly, the Court addresses the second and third prongs of the Witt test.
6 The Act Does Not Significantly Further the Government's Interests in 7 Military Readiness or Unit Cohesion 8 51. 9 10 11 12 13 14 15 16 52. 17 18 19 20 21 22 23 24 25 26 27 28
75 502
Defendants relied solely on the legislative history of the Act and the Act itself in support of their position that the Act passes constitutional muster. (See Findings of Fact Nos. 127-34; Defs.' Mem. Cont. Fact & Law at 9-10.) Careful review and consideration of the Act itself and its legislative history reveals that this evidence fails to satisfy Defendants' burden of proving that the Act, with its attendant infringements on the fundamental rights of Plaintiff's members, significantly furthers the Government's interest in military readiness or unit cohesion. Plaintiff's evidence at trial demonstrated the Act does not significantly advance the Government's interests in military readiness or unit cohesion. The testimony of former servicemembers provides ample evidence of the Act's adverse effect on the fundamental rights of homosexual members of the United States military. Their testimony also demonstrated that the Act has a deleterious effect on the Government's interests in maintaining military readiness and unit cohesion. In addition to the testimony from the lay witnesses, Plaintiff's other evidence, including documentary evidence and testimony from witnesses in such specialties as national security policy, military sociology, military history, and social psychology, provided additional
1 2 3
support for this conclusion that the Act harms, rather than furthers, the Government's important interests.
4 The Act Is Not Necessary to Further the Government's Interests in 5 Military Readiness and Unit Cohesion 6 53. 7 8 9 10 11 12 13 54. 14 15 16 17 18 55. 19 20 21 22 23 56. 24 25 26 27 28
76 503
The Witt court held that to justify the infringement on the fundamental rights identified in Lawrence, a defendant must satisfy both the requirement that the Act "significantly furthers" the Government's interests and the requirement that it is "necessary" to achieve them. To the extent that Defendants have made a distinct argument here that the Act is necessary to achieve the Government's significant interests, they have not met their burden as to this prong of the Witt test, either. In order to justify the encroachment on the fundamental rights described above, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment. Plaintiff's First Amendment Challenge to the Act "Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (U.S. Const. amend. I.)
1 57. 2 3 4
Plaintiff claims that the Don't Ask, Don't Tell Act violates its members' First Amendment rights to these freedoms. (FAC 1, 6, 45-49; Pl.'s Mem. Cont. Fact & Law at 32-33.)
5 The Standard of Review in First Amendment Challenges 6 58. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 59. 24 25 26 27 28

77 504
Plaintiff challenges the Act as overbroad and as an unconstitutional restriction on speech based on its content. (FAC 47; Pl.'s Mem. Cont. Fact & Law at 35, 40.) Laws regulating speech based on its content generally must withstand intense scrutiny when facing a First Amendment challenge: At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace. For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis added) (citations omitted). In Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991), the Supreme Court considered whether New York's "Son of Sam" law purporting to strip authors of profits gained from books or other publications depicting their own criminal activities constituted content-based regulation. Holding the law was not
1 2 3 4 5 6 60. 7 8 9 10 11 12 61. 13 14 15 16 17 62. 18 19 20 21 22 23 24 25 26 27 28
content neutral, the Court ruled that "[i]n order to justify such differential treatment, 'the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" Id. at 118 (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)). "Deciding whether a particular regulation is content-based or contentneutral is not always a simple task. We have said that the principal inquiry in determining content-neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Turner, 512 U.S. at 642 (citations omitted). The Supreme Court in Turner distilled the rule as follows: a law that by its terms "distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed [is] content-based." Id. at 643 (citing Burson v. Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry, 485 U.S. 312, 318-19 (1988)). Defendants did not address directly the question of content neutrality, but relied instead on authorities that, for various reasons, fail to counter the clear weight of the case law discussed above. Defendants repeatedly cited the Ninth Circuit's decisions in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), and Holmes v. California National Guard, 124 F.3d 1126 (9th Cir. 1997), although the plaintiff in Witt brought no First Amendment claim and the Court in Philips expressly declined to reach the First Amendment issue, noting the district court also had stopped short of resolving it.
78 505
1 63. 2 3 4 5 64. 6 7 8 9 10 11 12 13 65. 14 15 16 17 18 19 20 66. 21 22 23 24 25 26 27 28
In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech claims in summary manner, holding because the plaintiffs "were discharged for their conduct and not for speech, the First Amendment is not implicated." 124 F.3d at 1136 (citations omitted). Holmes relied on the Fourth Circuit's decision in Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), which rejected a First Amendment challenge to the Don't Ask, Don't Tell Act on the basis that it "permissibly uses the speech as evidence," and "[t]he use of speech as evidence in this manner does not raise a constitutional issue the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime, or, as is the case here, to prove motive or intent." Id. at 931 (citations omitted). Holmes also relied on Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991), although acknowledging that decision was based not on the Don't Ask, Don't Tell Act but a superseded policy. See Holmes, 124 F.3d at 1136 (citing Pruitt, 963 F.2d at 1164). In other words, Holmes and the cases from other circuits have found the Don't Ask, Don't Tell Act does not raise a First Amendment issue to be analyzed under a content-neutral versus content-based framework. None of these authorities, however, considered whether there might be any speech, other than admissions of homosexuality subject to being used as evidence in discharge proceedings, affected by the Act. Furthermore, Holmes was decided before Lawrence and was "necessarily rooted" in Bowers v. Hardwick, 478 U.S. 186 (1986), which Lawrence overruled. See Holmes, 124 F.3d at 1137 (Reinhardt, J., dissenting).
79 506
1 67. 2 3 4 5 6 7 68. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 69. 22 23 24 25 26 27 28
Lawrence struck down a Texas statute making felonious certain sexual acts between two persons of the same sex; the Supreme Court held in part that the Constitution recognized certain substantive due process rights, associated with the "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Lawrence, 539 U.S. at 562 (emphasis added). The Holmes decision, finding the Act did not implicate the First Amendment, and the Act's provisions, appear at odds with the Supreme Court's decision in Lawrence. As Holmes explains: "Homosexual conduct is grounds for separation from the Military Services under the terms set forth [in the DOD Directives.] Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts." 124 F.3d at 1129 (quoting DOD Directive 1332.30 at 2-1(c) (emphasis added)). The Holmes court found the Act does not punish status, despite the presumption embodied within it that declared homosexual servicemembers will engage in proscribed homosexual conduct, finding the assumption was "imperfect" but "sufficiently rational to survive scrutiny . . . ." 124 F.3d at 1135.
80 507
1 70. 2 3 4 5 6 71. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 73. 22 23 24 25 26 27 28
Thus, Holmes's foundations rational basis scrutiny, acceptance of an assumption of sexual misconduct based on admitted homosexual orientation, and the Bowers decision all have been undermined by Lawrence, particularly in light of its explicit protection of "expression." See Lawrence, 539 U.S. at 562. Furthermore, if the proscription in subsection (b)(1) of the Act violates substantive due process as set forth above, then the limitation on speech in subsection (b)(2) necessarily fails as well. "Plainly, a limitation on speech in support of an unconstitutional objective cannot be sustained." Able v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996). Holmes, decided before Lawrence, therefore does not shield Defendants from Plaintiff's First Amendment claim.
72. The Act in subsection (b)(2) requires a servicemember's discharge if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . ." 10 U.S.C. 654 (b)(2) (emphasis added). The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation. Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.
81 508
1 74. 2 3 4 5 6 7 8 9 75. 10 11 12 13 14 15 16 17 18 19 20 21 76. 22 23 24 25 26 27 28
The First Amendment's hostility to content-based regulation "extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980) (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). In evaluating the constitutionality of such regulations in a military context, however, courts traditionally do not apply the strict scrutiny described above. Rather, courts apply a more deferential level of review of military restrictions on speech. "Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps." Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted). Although careful to point out that the "subordination of the desires and interests of the individual to the needs of the service," which is "the essence of military life," does not entirely abrogate the guarantees of the First Amendment, the Supreme Court emphasized the "great deference [courts must afford] to the professional judgment of military authorities concerning the relative importance of a particular military interest." Id. (citations omitted).
82 509
1 77. 2 3 4 5 6 78. 7 8 9 10 11 12 79. 13 14 15 16 17 80. 18 19 20 21 22 23 81. 24 25 26 27 28
The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S. 57 (1981), oft-cited for the principle that "judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Id. at 70. In keeping with this well-established rule of deference, regulations of speech in a military context will survive Constitutional scrutiny if they "restrict speech no more than is reasonably necessary to protect the substantial government interest." Brown v. Glines, 444 U.S. 348, 348, 355 (1980) (citing Greer v. Spock, 424 U.S. 828 (1976); Procunier v. Martinez, 416 U.S. 396 (1974)). The Don't Ask, Don't Tell Act fails this test of constitutional validity. Unlike the regulations on speech upheld in Brown and Spock, for example, the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here. In Brown, the Supreme Court upheld an Air Force regulation that required Air Force personnel first to obtain permission from the base commander before distributing or posting petitions on Air Force bases, 444 U.S. at 348; in Greer, the Court upheld a similar regulation on Army bases, banning speeches, demonstrations, and distribution of literature, without prior approval from post headquarters. 424 U.S. at 828. In both cases, the Court rejected facial challenges to the regulations, holding they protected substantial Governmental interests unrelated to the suppression of free expression, i.e., maintaining the respect for duty and discipline, and restricted speech no more than was reasonably necessary to protect that interest.
83 510
1 82. 2 3 4 5 6 83. 7 8 9 10 11
By contrast to the relatively narrow regulations at issue in Brown and Greer, however, the Don't Ask, Don't Tell Act encompasses a vast range of speech, far greater than necessary to protect the Government's substantial interests. See supra Findings of Fact Nos. 27, 28, 53, 75, 76, 92, 93, 96-99, 112,113.) For these reasons, Plaintiff is also entitled to judgment on its claim for violation of the First Amendment's guarantees of freedom of speech and petition.
12 Dated: October 12, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Case: 10-56634 10/25/2010 Page: 1 of 15
ID: 7521688 DktEntry: 9-19
PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-08425-VAP (Ex) Title: Date: October 12, 2010
LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE =============================================================== PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None ORDER GRANTING PERMANENT INJUNCTION (IN CHAMBERS)
On September 9, 2010, the Court issued its Memorandum Opinion ruling in favor of Plaintiff Log Cabin Republicans ("Plaintiff" or "Log Cabin") on the first and second claims in its First Amended Complaint, holding the "Don't Ask, Don't Tell" Act, 10 U.S.C. 654, violates the First and Fifth Amendments to the United States Constitution. The Court directed Plaintiff to submit a proposed judgment with preliminary injunction, and set a deadline for Defendants to submit any objections to the same. (Mem. Op. at 85.)
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CV 04-08425-VAP (Ex) LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES MINUTE ORDER of October 12, 2010
Accordingly, Plaintiff timely submitted its "Request for Judgment and Permanent Injunction" ("Request for Permanent Injunction" or the "Request") on September 16, 2010. On September 23, 2010, Defendants United States of America and Robert M. Gates, Secretary of Defense (collectively, "Defendants"), filed "Objections to Request for Judgment and Permanent Injunction" ("Objections" or "Defs.' Objections"). Plaintiff filed a response to the Objections ("Response") on September 24, 2010, and an Amended Proposed form of Judgment and Permanent Injunction ("Amended Request" or "Amd. Req.") on October 7, 2010. Having considered the evidence presented during trial and the papers the parties submitted in support of and in opposition to the Request for Permanent Injunction, the Court GRANTS Plaintiff's Request in part, for the reasons set forth below. I. BACKGROUND AND PROCEDURAL HISTORY The parties tried the case to the Court from July 13 through 16 and July 20 through 23, 2010. The Court issued a Memorandum Opinion on September 9, 2010, finding the Don't Ask, Don't Tell Act ("Don't Ask, Don't Tell," the "Act," or "DADT") unconstitutional on its face under the First and Fifth Amendments to the United States Constitution. The Court concluded, "Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act." (Mem. Op. at 1.) After Plaintiff filed the Request for Permanent Injunction (Doc No. 233), Defendants filed the following objections to Plaintiff's Request: (1) Plaintiff's proposed injunction is overbroad because it (a) should be limited to Plaintiff and its members, (b) "would foreclose the United States from litigating the constitutionality of DADT in other courts," (c) "improperly seeks to prevent the government from making the showing permitted by the Ninth Circuit in Witt,"1 and (d) "impermissibly seeks to effectively negate Courts of Appeals' rulings upholding DADT"; (2) Plaintiff's proposed injunction "seeks to extend beyond enjoining DADT"; (3) "no injunction
Witt v. Dep't of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence," and is subject to heightened scrutiny.). MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 2
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should be entered or made effective until the Government has had an opportunity to consider the terms of any injunction and move for a stay"; and (4) "Log Cabin is not entitled to EAJA [Equal Access to Justice Act] Fees." (Doc. No. 235 (Defs.' Objections) at i.) Plaintiff filed its Response on September 24, 2010 (Doc. No. 236) and an Amended Request on September 28, 2010 (Doc. No. 238). On September 29, 2010, Defendants filed a "Supplement to Objections." (Doc. No. 239.) II. ANALYSIS A. Plaintiff Is Entitled to a Permanent Injunction "The requirements for the issuance of a permanent injunction are 'the likelihood of substantial and immediate irreparable injury and the inadequacy of remedies at law.'" American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066-67 (9th Cir. 1995) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir. 1985), modified, 796 F.2d 309 (9th Cir. 1986)). Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights and violating (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution. (See Mem. Op. at 12-13, 74, 83, 85; see American-Arab Anti-Discrimination Comm., 70 F.3d at 1071 (holding that violations of procedural due process and First Amendment rights constitute irreparable harm).) Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights. See American-Arab Anti-Discrimination Comm., 70 F.3d at 1071 (holding there is no adequate remedy at law for "denial of legalization based on a constitutional violation"). Defendants do not contend Plaintiff has not satisfied these requirements for issuance of a permanent injunction. In fact, Defendants do not address the requirements in their Objections.
Thus, Plaintiff is entitled to a permanent injunction barring enforcement of the MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 3
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Don't Ask, Don't Tell Act. Defendants' Objections to Plaintiff's Proposed Injunction 1. Defendants' Objections to the Breadth of the Injunction a. The Proposed Injunction Does Not Bind Non-Parties Defendants first argue that the Court cannot enjoin the United States military from enforcing the Act because such an injunction would be overbroad. (Defs.' Objections at 3.) Defendants contend the injunction should be limited to Plaintiff and its members because Plaintiff "has only ever purported to assert the rights of its own members. . . . Therefore, [P]laintiff should not be allowed to assert the rights of third parties for the first time through a proposed judgment." (Id.) According to Defendants, the proposed injunction would "extend injunctive relief to nonparties." (Id. at 4.) This argument attempts to transform Plaintiff's challenge into an as-applied attack on the Act, which squarely contradicts Defendants' position throughout this litigation. (See, e.g., Doc. No. 186 (Defs.' Mem. of Cont. Fact & Law) at 1 ("no trial is necessary or appropriate on plaintiff's facial challenge.") (emphasis added), 5 ("Burden of Proof Regarding Facial Due Process Claim . . . . a 'facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully. . . .'") (emphasis added), 7 ("Burden of Proof Regarding Facial First Amendment Claim . . . . plaintiff has steadfastly maintained throughout this litigation that it brings facial constitutional claims, including a facial First Amendment claim.") (emphasis added); Doc No. 188 (Defs.' Proposed Findings of Fact & Conclusions of Law) at 6 ("Because resolution of LCR's facial substantive due process claim is a pure question of law . . . .") (emphasis added).) As Plaintiff correctly points out, it challenged the Act on its face, not as applied to it or its members. (Resp. at 4-5.) Therefore, its entitlement to relief is not constrained as Defendants suggest, and the Court is not limited to granting a remedy that would affect only Plaintiff and its members. The Court found the Act unconstitutional on its face; accordingly, the resulting remedy should be as broad as necessary to achieve the relief Plaintiff sought. Furthermore, Plaintiff's proposed injunction does not bind nonparties as Defendants suggest; instead, it binds the actual, named Defendants in this action -- the United States of America and Robert MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 4 B.
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M. Gates, in his official capacity as Secretary of the Department of Defense -- both of whom fully participated in and litigated this lawsuit. The remedy Plaintiff sought and obtained here was invalidation of the Don't Ask, Don't Tell Act. The nature of the remedy stems from the nature of the challenge -- here, a facial challenge. As set forth below, courts may invalidate a statute in its entirety pursuant to a facial challenge, though partial invalidation is preferred where possible. In Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), the Ninth Circuit held a district court did not abuse its discretion in ordering what was, in effect, nationwide relief. There, plaintiff migrant workers sought a declaratory judgment that the Migrant and Seasonal Agricultural Workers Protection Act applied to forestry workers and an injunction requiring the Secretary of Labor to enforce the Act in the industry. In analyzing the appropriate scope of the injunction, the Bresgal court noted, "The Supreme Court has held that a federal agency is not necessarily entitled to confine any ruling of a court of appeals to its immediate jurisdiction." Id. at 1170 (discussing Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which held there are no legal limits on the geographical scope of a class action brought in federal district court). "Thus there is no bar against class-wide, and nationwide relief in federal district or circuit court when it is appropriate." Bresgal, 843 F.2d at 1170 (citations omitted). Defendants' argument that nationwide relief is available only in class actions fails. There are numerous instances where district courts have granted nationwide relief in non-class actions. See, e.g., Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005) (invalidating five Forest Service regulations and issuing a nationwide injunction against their application), aff'd, 490 F.3d 687 (9th Cir. 2007), rev'd on other grounds, Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009); Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374, 1400-01 (M.D.N.C. 1997) (issuing injunction preventing the FDA from enforcing regulations on tobacco products), rev'd on other grounds, Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir. 1998), aff'd, 529 U.S. 120 (2000); Finley v. Nat'l Endowment for the Arts, 795 F. Supp. 1457, 1476 (C.D. Cal. 1992) (granting summary judgment on plaintiff's facial challenge to the National Foundation on the Arts and the Humanities Act of 1965 and enjoining its enforcement), aff'd, 100 F.3d 671 (9th Cir. 1996), rev'd on other MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 5
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grounds, 524 U.S. 569 (1998); Hodel v. Va. Surface Min. & Reclamation Ass'n, Inc., 483 F. Supp. 425 (D.C. Va. 1980) (finding Surface Mining Control and Reclamation Act unconstitutional and permanently enjoining the Secretary from enforcing various provisions of the Act), rev'd on other grounds, 452 U.S. 264 (1981); see also Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349 (Fed. Cir. 2002) (noting that where a party challenges a regulation's facial validity, total invalidation is an appropriate remedy). b. Severability Generally, however, an injunction "should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiff." (Defs.' Objections at 3-4 (citing Califano, 442 U.S. at 702).) Accordingly, partial, rather than total, invalidation is "the normal rule," and invalid provisions should be severed from valid provisions whenever possible. Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329, 331 (2006) (holding, in response to a facial challenge to a statute's constitutionality, courts should issue a narrower remedy whenever possible); United States v. AMC Entm't, Inc., 549 F.3d 760, 774-75 (9th Cir. 2008) (Wardlaw, J., concurring in part and dissenting in part) (hereinafter "AMC Entm't (9th Cir.)") ("district courts within our circuit commonly issue nationwide injunctions where the 'injunction . . . is tailored to the violation of law that the Court already found -- an injunction that is no broader but also no narrower than necessary to remedy the violations." (citing California ex rel. Lockyer v. USDA, 468 F. Supp. 2d 1140, 1144 (N.D. Cal. 2006))); Golden Door, Inc. v. Odisho, 437 F. Supp. 956, 968 (N.D. Cal. 1977), aff'd, 646 F.2d 347 (9th Cir. 1980), abrogated on other grounds by Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866 (9th Cir. 2002) ("Plaintiff's market area, and hence the sphere of its reputation, are nationwide. Accordingly, it is entitled to nationwide protection against confusion and dilution. The scope of the injunction must therefore be nationwide."); see Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-86 (1987) (setting out rules governing severability of federal statutes); Sabri v. United States, 541 U.S. 600, 608-09 (2004); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-03 (1985); Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion) (adopting presumption of severability); United States v. Raines, 362 U.S. 17, 21 (1960); Champlin Refining Co. v. Corp. Comm'n, 286 U.S. 210, 234 (1932); Richard H. Fallon et al., Hart and Wechsler's The Federal Courts and the MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 6
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Federal System 162-65 (6th ed. 2009) (describing severability doctrine as applied to federal statutes). In accordance with these principles, the Court considers whether the Act contains constitutional provisions that are "separable" or "severable" from the unconstitutional portions. Though the Government objected to the breadth of Plaintiff's proposed injunction, it never addressed the possibility of severance. Nevertheless, the Court has considered severability sua sponte and finds it impossible to sever the unconstitutional provisions of the Act for the reasons discussed below. "The standard for determining the severability of an unconstitutional provision is well established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Alaska Airlines, 480 U.S. at 684 (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam)); accord Time, 468 U.S. at 653; INS v. Chadha, 462 U.S. 919, 931-32 (1983); United States v. Jackson, 390 U.S. 570, 585 (1968). "Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently." Alaska Airlines, 480 U.S. at 684 (citing Hill v. Wallace, 259 U.S. 44, 70-72 (1922) (holding the Future Trading Act nonseverable because valid and invalid provisions were so intertwined that the court would have to rewrite the law to allow it to stand)). Thus, the severability doctrine depends upon whether the court can formulate a satisfying limiting principle to constrain the statute. See Ayotte, 546 U.S. at 331. If not, severing unconstitutional applications is not an option and the court must resort to full invalidation. See id. Here, severing the unconstitutional provisions of the Act would not leave a fully operative law because the invalid provisions are so intertwined with any valid provisions that a limiting construction is not feasible. The Act provides that any member of the United States military who engages in "homosexual conduct" is subject to discharge unless the servicemember is able to demonstrate that he or she does not have a propensity to engage in "homosexual conduct." See 10 U.S.C. MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 7
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654; see Department of Defense Directives 1332.14 (1993), 1332.30 (1997), 1304.26 (1993); Department of Defense Instruction 1332.14 (2008) (incorporating March 29, 2010, changes), 1332.30 (2008) (incorporating March 29, 2010, changes). The Act defines "homosexual conduct" as sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex. 10 U.S.C. 654. In its Memorandum Opinion, the Court found it unconstitutional to discharge servicemembers on the basis of their homosexuality. As the Act entirely pertains to the discharge of servicemembers on the basis of homosexual conduct, it is unconstitutional in its totality. Formulating a constitutional statute would require the Court to rewrite the Act. The Supreme Court has cautioned courts against rewriting a statute in an attempt to salvage it. Ayotte, 546 U.S. at 329-30. Instead, courts should "impose a limiting construction on a statute only if it is 'readily susceptible' to such a construction." Reno v. ACLU, 521 U.S. 844, 884-85 (1997) (citation omitted). Such susceptibility may turn on the availability of a "clear line" supported by statutory text or legislative intent that the Court could use to trim a statute to constitutional confines. Id.; see also City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality opinion) (finding severability impossible where "vagueness permeates the text of [a criminal] law"). Here, there is no saving provision in the language of the Act itself nor any evidence of legislative intent that would allow the Court to narrow the statute to constitutional confines. Further, the unconstitutional nature of the Act permeates the text of the statute. Thus, total invalidation is the narrowest remedy available for the relief sought here. Effect of Injunction on Defendants' Ability to Defend the Act in Other Courts Next, Defendants argue that the proposed injunction is improper because it (1) prevents Defendants from defending the constitutionality of the Don't Ask, Don't Tell Act in other courts, and (2) prevents "the government from making the showing permitted by the Ninth Circuit in Witt." (Defs.' Objections at 8.) These contentions either ignore the nature of Plaintiff's challenge or misstate the consequences of this injunction. c.
519
To the extent that Defendants' reference to "other courts" is intended to refer to other district courts, Defendants are correct that this injunction will prevent them from defending the constitutionality of the Don't Ask, Don't Tell Act. As discussed above, the proper remedy for the relief sought here is complete invalidation of the Don't Ask, Don't Tell Act. As such, Defendants are bound by this Court's ruling. Further, if Defendants' objection is that they will be unable to defend current or future asapplied challenges, Defendants once again fail to recognize the nature of Plaintiff's challenge. Plaintiff did not prevail on an as-applied challenge, which would have rendered the Act unconstitutional as applied to it but not affected the constitutionality of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its face and requested an order permanently enjoining the Act's enforcement. As the Court deems this remedy proper, Defendants are unable to defend the Act in asapplied challenges. Likewise, if Defendants' objection is that they will be unable to defend current or future facial challenges to the Act, the same reasoning applies. To the extent that Defendants' reference to "other courts" indicates higher courts, Defendants' recourse, if they wish to defend the Act further, is to appeal this Court's ruling. Defendants next argue that the Court should not issue a nationwide injunction because other circuit courts have found the Act constitutional. Defendants cite no case in which a court finding a federal statute unconstitutional on its face has limited its ruling to a particular judicial district. Defendants instead cite four circuit cases holding the Don't Ask, Don't Tell Act constitutional: Cook v. Gates, 528 F.3d 42 (1st Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc). The fact that courts in other circuits have not invalidated the Don't Ask, Don't Tell Act does not prevent this Court from doing so. Able, Richenberg, and Thomasson all predate the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), which recognized a fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 539 U.S. at 562. Cases that predate Lawrence are not relevant to this inquiry because the Court's decision here relied upon the Ninth Circuit's holding in Witt, which adopted the heightened level of scrutiny announced in Lawrence. See Witt, 527 F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 9
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personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence," and is subject to heightened scrutiny). Defendants chose not to appeal Witt and accordingly are bound by it. As for Cook, its disposition is distinguishable from this case because Cook arose after the district court granted a motion to dismiss, not on the merits after a trial, as here. Furthermore, as discussed more fully in its Memorandum Opinion, the Court finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a facial due process challenge to the Don't Ask, Don't Tell Act, the Cook court presented two "circumstances under which the Act would be valid." See Cook, 528 F.3d at 56 (holding the Act is constitutional on its face because it provides for separation of a servicemember "who engages in a public homosexual act or who coerces another person to engage in a homosexual act." (citing United States v. Salerno, 481 U.S. 739, 745 (1987))). Those examples are bases for discharge of any servicemember, whether the conduct in question is homosexual or heterosexual. (See Mem. Op. at 15-16 (noting that "the Cook decision provide[d] no citation to any provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for discharge under that legislation.").) d. Comity The Court next turns to Defendants' argument that comity prevents the Court from issuing a nationwide injunction. As noted above, of the four circuit cases holding the Don't Ask, Don't Tell Act constitutional, Cook is the only case decided after Lawrence and accordingly the only one relevant here. The doctrine of comity is a "prudential consideration" that arises when there is a tension between courts having concurrent jurisdiction over the same matter. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 23-29 (1989) (Stevens, J., concurring), rev'd on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Erwin Chemerinsky, Federal Jurisdiction 39-40, n.28 (5th Ed. 2007) (citing Paul Finkelman, An Imperfect Union: Slavery, Federalism and Comity 4 (1981) (defining comity as "the courtesy or consideration that one jurisdiction gives by enforcing the laws of another, granted out of respect and deference rather than obligation.")). The doctrine of comity is not a rule of law, but rather is grounded in equitable considerations of respect, goodwill, cooperation, and harmony among courts. See Danforth v. Minnesota, 552 U.S. 264, MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 10
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278-280, n.15 (2008) (discussing comity in the context of habeas corpus); Younger v. Harris, 401 U.S. 37 (1971) (holding that comity prevents federal courts from enjoining pending state court proceedings); Cornfeld v. Investors Overseas Servs., Ltd., 471 F. Supp. 1255, 1258-62 (D.C.N.Y. 1979) (international comity); Chemerinsky, Federal Jurisdiction, supra, at 39-40, n.28. Though comity often arises in the context of federalism and the attendant deference federal courts owe state courts, the Ninth Circuit also has invoked the doctrine to encourage deference among federal courts. See generally AMC Entm't (9th Cir.), 549 F.3d at 760. In AMC Entertainment, the United States brought suit against a national movie theater owner alleging that some of its theaters violated Americans with Disabilities Act ("ADA") regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter "AMC Entm't (C.D. Cal.)"). The district court granted the government's motion for summary judgment and issued a nationwide injunction requiring the defendants to comply with the ADA regulations, and the defendants appealed. Id. The Ninth Circuit began its analysis by recognizing that district courts have the power to issue nationwide injunctions. AMC Entm't (9th Cir.), 549 F.3d at 770-71 ("Once a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction." (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) ("the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction"); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981) ("When a district court has jurisdiction over all parties involved, it may enjoin the commission of acts outside of its district."))). Nevertheless, the divided Ninth Circuit panel went on to hold that the district court abused its discretion by issuing a nationwide injunction because "the principles of comity" should have constrained the court from enjoining defendants' theaters in the Fifth Circuit, which previously had held defendants' theaters did not violate the ADA. AMC Entm't (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit "judicially repudiated" the reasoning adopted by the district court "when considering the same arguments" enforced in the district court's injunction). The panel held: MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 11
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Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping. Id. at 773. AMC Entertainment is distinguishable from the present case because the former turns on statutory construction, not on fundamental constitutional rights. As Plaintiff argues, "Whatever may be the merits [of comity] in the context of statutory construction -- where, for example, our legal system tolerates differing rules in different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the like -- it can hold no sway on issues of constitutional rights." (Resp. at 7.) The Court agrees that the fundamental constitutional rights at issue here must trump considerations of comity. To hold otherwise would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is rooted in equity; here, the balance of equities decisively tips in favor of upholding the fundamental constitutional rights protected by the First and Fifth Amendments to the United States Constitution. 2. Defendants' Objection to Specific Language in the Injunction Defendants object that certain language in Plaintiff's proposed injunction would enjoin conduct that is extraneous to the Don't Ask, Don't Tell Act. The specific language to which Defendants object enjoins Defendants and their agents "from taking any actions whatsoever, or permitting any person or entity to take any action whatsoever, against gay or lesbian servicemembers, or prospective servicemembers, that in any way affects, impedes, interferes with, or influences their military status, advancement, evaluation, duty assignment, duty location, promotion, enlistment or reenlistment based upon their sexual orientation." (Amd. Req. at 2.) Defendants argue this language "appears to subject all employees of the United States government to contempt and enforcement in this Court based on claims relating to any actions 'based upon' a servicemember's (or a 'prospective MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 12
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servicemember's') sexual orientation." (Defs.' Objections at 9 (emphasis in original).) In its Response and Amended Request for Injunction, Plaintiff clarifies that its injunction was not intended to extend beyond the Don't Ask, Don't Tell Act to enjoin extraneous conduct such as sexual harassment or sexual misconduct that are already covered under other provisions of military law and regulations. (Resp. at 9.) To address Defendants' concern, Plaintiff suggests adding the phrase "under the color of law or military regulation." (Id.) The Court finds this modification does not sufficiently constrain the language of the injunction to the confines of the Act and accordingly sustains Defendants' objection. Defendants' Objection That No Injunction Should Be Entered or Made Effective Until the Government Has Had an Opportunity to Consider the Terms of Any Injunction and Move for a Stay Defendants next object that "no injunction should be entered or made effective until the Government has had an opportunity to consider the terms of any injunction and move for a stay." (Defs.' Objections at 10-12.) Defendants have requested a stay in this action on three previous occasions. The Court has rejected each request. Defendants do not raise new arguments here, instead arguing "the political branches are thoroughly engaged in considering the repeal of the DADT statute" and reiterating the political nature of this issue and the challenges the military will face in complying with the invalidation of DADT. (Id. at 11.) Furthermore, Defendants have not requested a stay pending appeal nor do they provide an estimate of how much time they need to consider the terms of the injunction and move for a stay. Instead, Defendants merely request the Court indefinitely defer entry of the injunction. (See id. at 10-12) As the Court previously noted, "Defendants cite no authority for the proposition that district courts should stay litigation concerning the constitutionality of federal laws for an indefinite period merely because the legislative and executive branches have expressed doubts concerning the continued wisdom of the challenged laws." (Doc. No. 100 (November 24, 2009, Minute Order Denying Motion to Certify Order for Interlocutory Appeal and MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 13 3.
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for Stay) at 5.) The Court has provided Defendants sufficient opportunity to consider the terms of Plaintiff's proposed injunction and request a stay. They have failed to do so. For these reasons and those set forth in the Court's previous rulings on the issuance of a stay, the Court declines to delay entry of the injunction. Defendants' Objection to Log Cabin's Request to Apply for Equal Access to Just Act ("EAJA") Fees The Court disregards Defendants' objection that Plaintiff is not entitled to EAJA fees because Plaintiff has not yet moved for fees but instead has only requested permission to apply for such fees. Defendants' arguments regarding whether or not Plaintiff is entitled to fees are more properly directed towards such an application, if one is filed. Thus, the Court grants Plaintiff's request to file an application for EAJA fees. III. CONCLUSION For the forgoing reasons, the Court: (1) DECLARES that the act known as "Don't Ask, Don't Tell"2 infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution; (2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or 4.
Codified in statute at 10 U.S.C. 654 and implemented by regulations comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and 1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008) (incorporating March 29, 2010, changes) and 1332.30 (2008) (incorporating March 29, 2010, changes). MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk ___md___ Page 14
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command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command; (3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. 654 or its implementing regulations, on or prior to the date of this Order; (4) GRANTS Plaintiff Log Cabin Republicans' request to apply for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412; and (5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion for costs of suit, to the extent allowed by law. IT IS SO ORDERED.
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Case: 10-56634 10/25/2010 Page: 1 of 3
ID: 7521688 DktEntry: 9-20
1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) ) non-profit corporation, 12 ) ) Plaintiff, 13 ) ) v. 14 ) UNITED STATES OF AMERICA ) 15 and ROBERT M. GATES, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ ) 18 ) 19 20 21 22 23 24 25 26 27 28 Case No. CV 04-08425-VAP (Ex) JUDGMENT AND PERMANENT INJUNCTION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
JS-6
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: This action was tried by Judge Virginia A. Phillips without a jury on July 13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on September 9, 2010 (Doc. 232), and an Amended & Final Memorandum Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010. For all the reasons set forth therein, the Court:
527
Case 2:04-cv-08425-VAP-E DocumentPage: 2 of 3 10/12/10 Page DktEntry: 9-20 #:7788 Case: 10-56634 10/25/2010 252 Filed ID: 7521688 2 of 3 Page ID
(1) DECLARES that the act known as "Don't Ask, Don't Tell"1 infringes
2 the fundamental rights of United States servicemembers and prospective 3 servicemembers and violates (a) the substantive due process rights 4 guaranteed under the Fifth Amendment to the United States Constitution, and 5 (b) the rights to freedom of speech and to petition the Government for redress 6 of grievances guaranteed by the First Amendment to the United States 7 Constitution. 8 9 (2) PERMANENTLY ENJOINS Defendants United States of America 10 and the Secretary of Defense, their agents, servants, officers, employees, 11 and attorneys, and all persons acting in participation or concert with them or 12 under their direction or command, from enforcing or applying the "Don't Ask, 13 Don't Tell" Act and implementing regulations, against any person under their 14 jurisdiction or command; 15 16 (3) ORDERS Defendants United States of America and the Secretary of 17 Defense immediately to suspend and discontinue any investigation, or 18 discharge, separation, or other proceeding, that may have been commenced 19 under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. 654 or its 20 implementing regulations, on or prior to the date of this Judgment. 21 22 (4) GRANTS Plaintiff Log Cabin Republicans' request to apply for 23 attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 24 2412; and 25 Codified in statute at 10 U.S.C. 654 and implemented by regulations comprising Department of Defense Directives 1332.14 (1993), 1332.30 27 (1997), and 1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008) (incorporating March 29, 2010 changes) and 28 1332.30 (2008) (incorporating March 29, 2010 changes). 26
2 528
1
1 2 (5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion 3 for costs of suit, to the extent allowed by law. 4 5 6 7 8 Dated: October 12, 2010 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 529
IT IS SO ORDERED.
Case: 10-56634 10/25/2010 Page: 1 of 3
ID: 7521688 DktEntry: 9-21
1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS EX PARTE APPLICATION FOR A STAY OF JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA AND) ROBERT M. GATES, Secretary of Defense,) ) Defendants. ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS (1) EX PARTE APPLICATION FOR THE ENTRY OF AN EMERGENCY STAY; (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION; (3) DECLARATION OF CLIFFORD L. STANLEY (4) DECLARATION OF PAUL G. FREEBORNE; AND (5) PROPOSED ORDER BEFORE: Judge Phillips
14 LOG CABIN REPUBLICANS,
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ID: 7521688 DktEntry: 9-21
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 Pursuant to Local Rule 7-19, Defendants the United States of America and 3 Robert M. Gates, Secretary of Defense, hereby apply ex parte for an order staying 4 the application of the Courts entry of a permanent injunction in this case pending 5 appeal. In the alternative, defendants request that the Court grant an immediate 6 stay of its injunction while the Court considers defendants application for a stay 7 pending appeal. At a minimum, should the Court decline to enter a stay pending 8 appeal or an immediate stay to permit it to consider defendants request for a stay 9 pending appeal, defendants request that the Court enter an immediate stay to permit 10 the Court of Appeals an opportunity to consider entry of a stay. Defendants submit 11 that cause exists to grant the relief requested herein because, at a minimum, this 12 case raises serious legal questions, and without the entry of an order immediately 13 staying the application of this Courts judgment, defendants will be irreparably 14 harmed before they can appeal this Courts decision to the Ninth Circuit. 15 Accordingly, Defendants submit this ex parte application seeking immediate relief 16 from this Court. 17 Pursuant to Local Rule 7-19.1, defendants have provided notice of this ex 18 parte application to counsel for Plaintiff Log Cabin Republicans and inquired as to 19 whether Plaintiff would oppose this motion. Plaintiffs counsel has stated that 20 Plaintiff opposes defendants application. Plaintiffs counsels name, address, 21 telephone number and email address are as follows: 22 DAN WOODS 633 W. Fifth Street, Suite 1900 23 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 24 Facsimile: (213) 452-2329 Email: [email protected] 25 This application is based upon this notice of ex parte application, the 26 accompanying memorandum of points and authorities, and the accompanying 27 28
-1-
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1 Declarations of Clifford L. Stanley and Paul G. Freeborne. A proposed order is 2 hereby lodged. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Dated: October 14, 2010 Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 [email protected] Attorneys for Defendants United State of America and Secretary of Defense
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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON A. KAHN (State Bar No. 238505) WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff Log Cabin Republicans
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants.
OPPOSITION OF LOG CABIN REPUBLICANS TO DEFENDANTS EX PARTE APPLICATION FOR EMERGENCY STAY OF INJUNCTION Judge: Hon. Virginia A. Phillips
Hearing: October 18, 2010 Time: Ctrm: 2:30 p.m. 2
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OPPOSITION TO EX PARTE APPLICATION FOR EMERGENCY STAY OF INJUNCTION 533
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. III. D. I. II.
TABLE OF CONTENTS INTRODUCTION .......................................................................................... 1 DEFENDANTS DO NOT MEET THE STANDARDS FOR A STAY UNDER RULE 62(c) ...................................................................................... 2 A. B. C. Defendants Are Not Likely to Succeed on the Merits. .................... 3 Defendants Will Not Be Irreparably Injured Absent a Stay.......... 5 Issuance of a Stay Will Substantially Injure Log Cabins Members, and All Homosexual Servicemembers, by Perpetuating the Denial of Their Constitutional Rights................. 7 The Public Interest Favors Denial of a Stay of the Injunction. ..... 8
THE GOVERNMENTS CLAIMED HARDSHIP IS A RED HERRING10 CONCLUSION ............................................................................................. 12
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TABLE OF AUTHORITIES Page(s)
FEDERAL CASES Able v. United States, 155 F.3d 628 (2d Cir. 1998) ................................................................................. 4 Alliance for the Wild Rockies v. Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149 (9th Cir. Sept. 22, 2010) ........ 3 Bowen v. Kendrick, 483 U.S. 1304, 97 L. Ed. 2d 787, 108 S. Ct. 1 (1987) (Rehnquist, J., in chambers) ............................................................................... 10 Coalition for Econ. Equity v. Wilson, 122 F.3d 718 (9th Cir. 1997) .............................................................................. 10 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .................................................................................. 4 Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ....................................... 7 Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1558 (M.D. Ala. 1996).................................................................... 3 Golden Gate Rest. Assn v. City and County of San Francisco, 512 F.3d 1112 (9th Cir. 2008) .....................................................................passim Hilton v. Braunskill, 481 U.S. 770, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987) ..................................... 2 Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003) ................................... 4 Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) .............................................................................. 3 Nelson v. Natl Aeronautics & Space Admin. (Nelson II), 530 F.3d 865 (9th Cir. 2008), cert. granted on other grounds, ___ U.S. ___, 176 L. Ed. 2d 211, 130 S. Ct. 1755 (March 8, 2010)................... 5, 6, 7 New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977) (Rehnquist, J., in chambers) ................................................................................. 9 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) .............................................................................. 4 - ii LOSANGELES 882425 (2K)
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Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) .................................................................................. 4 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc).................................................................. 4 Tucker v. City of Fairfield, 398 F.3d 457 (6th Cir. 2005) ................................................................................ 7 Weiss v. United States, 510 U.S. 163, 127 L. Ed. 2d 1, 114 S. Ct. 752 (1994) ......................................... 9 Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 31 L. Ed. 2d 441, 92 S. Ct. 1236 (1971) ..................................... 2 Winter v. Natural Resources Defense Council, ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365 (2008) ................................. 2, 3 Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) .......................................................................... 4, 10
FEDERAL CONSTITUTION Fourteenth Amendment ........................................................................................... 10 First Amendment ................................................................................................... 7, 9
FEDERAL RULES Rule 62(c) .................................................................................................................. 2
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I. INTRODUCTION This is at least the governments fifth request for a stay in this case, following the stay it requested in its Objections to plaintiffs proposed judgment (Doc. 235) and the three prior requests identified in plaintiffs Response to those Objections (Doc. 236). See Minute Order of October 12, 2010 (Doc. 249), at 13-14. The government does not even discuss, let alone call into question, any of the reasons for the injunction that were set forth in that Minute Order or in the Courts 85-page Memorandum Opinion (Doc. 250) or its 84-page Findings of Fact and Conclusions of Law (Doc. 251). Instead, it supports the request first with a belated declaration from an Undersecretary of Defense ominously recounting the bureaucratic nightmare that the injunction will supposedly create for his Department, and second, unbelievably, with an Internet printout of an interview of President Obama in Rolling Stone magazine the rankest of hearsay and unsworn, self-serving statements which the Court should disregard. Defendants make nowhere near the showing required to sustain an application for a stay of injunction pending appeal. The government rushes to appeal the Courts judgment that DADT is unconstitutional, even as the President states repeatedly in public pronouncements that the policy weakens and undermines our national security and will end on [his] watch.1 The government is evidently uncomfortable with the fact that it is arguing that this case should not proceed to the inevitable invalidation of Don't Ask, Don't It is not only Admiral Mullen who tweets (Trial Ex. 330). President Obama, using his verified Twitter account, tweeted yesterday, on the very day that the Government filed both its appeal to the Ninth Circuit and this emergency motion for stay, that Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to. DADT will end & it will end on my watch. See Attachment 1. And in the fuller remarks that his tweet encapsulated, the President made it clear that he agrees with the principles underlying the Courts judgment: we recently had a Supreme Court -- a district court case that said, dont ask, dont tell is unconstitutional. I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security, anybody should be able to serve. And they shouldnt have to lie about who they are in order to serve. See http://www.whitehouse.gov/the-pressoffice/2010/10/14/remarks-president-a-youth-town-hall.
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Tell at the same time as the senior civilian and military command professes to wish for the end of that policy. That discomfort is well justified. But the fact that the governments continued defense of the case bespeaks hypocrisy at its highest levels should reinforce, not deter, the Court from maintaining the injunction it correctly entered based on the evidence presented at trial, and thereby safeguarding the Constitutional rights of our servicemembers. Every day that the government remains free to implement the Dont Ask, Dont Tell policy, American citizens Constitutional rights are violated. The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail. The request for stay must be denied. II. DEFENDANTS DO NOT MEET THE STANDARDS FOR A STAY UNDER RULE 62(C) A stay of injunction under Fed. R. Civ. P. 62(c) is considered extraordinary relief for which the moving party bears a heavy burden. Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231, 31 L. Ed. 2d 441, 92 S. Ct. 1236 (1971). Four factors regulate the issuance of a stay of a district court order, including stay of injunction, pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). These are the same four factors that must be shown by a party moving for an injunction in the first place, see Winter v. Natural Resources Defense Council, ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365, 374 (2008), and analysis of the factors in the one situation informs the analysis in the other. See -2LOSANGELES 882425 (2K)
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Golden Gate Rest. Assn v. City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). The moving party must show the existence of all four factors; and the moving party must show not merely the possibility of irreparable injury absent a stay, as defendants contend, but the likelihood of irreparable injury. Winter, 129 S.Ct. at 375 (rejecting the Ninth Circuits earlier possibility standard as articulated in, e.g., Golden Gate Rest. Assn, 512 F.3d at 1115, and Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983), cited by defendants); Alliance for the Wild Rockies v. Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149, at *5, 8 (9th Cir. Sept. 22, 2010). The governments showing here fails all four factors. A. Defendants Are Not Likely to Succeed on the Merits.
Defendants application completely fails to argue that defendants are likely to succeed on the merits of their appeal, the first necessary prong of the test for a stay. There is an excellent reason for that omission: defendants are not at all likely to succeed on the merits, and they know it.2 Log Cabins evidence at trial was overwhelming and showed conclusively that Don't Ask, Don't Tell does not significantly further an important governmental interest, is not necessary to that interest, and in fact impairs that interest. The government presented no evidence to the contrary and will be restricted on appeal to the record it made the legislative history of the statute. Under the circumstances, it cannot show any likelihood of success on the merits. See Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1558, 1563 (M.D. Ala. 1996) (denying stay of declaration of facial unconstitutionality of state statute because the state could identify no single prospective application of the statute that would be constitutional). A moving party that cannot make a showing of likely success on the merits may substitute a showing that the appeal presents a serious legal question. See Golden Gate Rest. Assn, 512 F.3d at 1115-16. That fallback argument is
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The applications apologetic footnote 1 acknowledges as much. -3OPPOSITION TO EX PARTE APPLICATION FOR EMERGENCY STAY OF INJUNCTION 539
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apparently what the government relies on here, in the very cursory Part B of its Argument at page 4 of its application. But defendants cannot show the existence of a serious legal question here. First of all, they do not even identify what the supposed serious question is. Is it Log Cabins standing? Is it the fact that this case presented a facial challenge? Is it the admission of some particular evidence? Is it the Courts application of the Witt standard? The Court and Log Cabin are left to guess. For their claim that such a serious question exists, defendants again rely solely, as they have throughout this case, on five previous Circuit Court cases that did not invalidate DADT: Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Cook v. Gates, 528 F.3d 42 (1st Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc). As we have pointed out more than once before, all of these cases except Cook predate the Supreme Courts decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), and therefore, as the Court has recognized (See Minute Order of October 12, 2010 (Doc. 249), at 9-10), are not relevant here. As for Cook, it does not control in this Circuit, where the rule of Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) a decision the government elected not to appeal governs.3 The injunction here was specifically based on Witt, and there can be no serious legal question of its validity under the controlling law. Moreover, following remand from the Ninth Circuit, Witt is also the only other case to have gone to a full trial on the merits of DADT. That trial resulted in the same finding this Court reached, that DADT was unconstitutional, in its asThe government continues to falsely assert that Witt rejected as inappropriate a facial challenge to the statute. Witt did not assert that a facial challenge to DADT would be impermissible, it merely decided the case that was before it, which was an as-applied challenge. 527 F.3d at 819. The standard announced in Witt is properly applied in this facial challenge, and nothing in the Witt decision forecloses that. -4LOSANGELES 882425 (2K)
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applied setting. To our knowledge, the government has not moved to stay the trial courts decision of reinstatement. These facts show further that no serious legal question, as defined in stay jurisprudence, is presented here. Finally, though the defendants application ignores this requirement, a movant relying on the serious legal question alternative must show that the second and third factors, collectively the balance of hardships, tips sharply in its favor. Golden Gate Rest. Assn, 512 F.3d at 1115-16; Nelson v. Natl Aeronautics & Space Admin. (Nelson II), 530 F.3d 865, 872-73 (9th Cir. 2008), cert. granted on other grounds, ___U.S. ___, 176 L. Ed. 2d 211, 130 S. Ct. 1755 (March 8, 2010) (No. 09-530). As shown below, the balance of hardships in this case in fact tips sharply toward the plaintiff, so defendants cannot rely on the serious legal question avenue. B. Defendants Will Not Be Irreparably Injured Absent a Stay.
The great bulk of the defendants application for stay is devoted to their claim that the military will be harmed if the Courts injunction remains in place while the government pursues an appeal.4 But the injunction does not require the military to do anything affirmatively: it does not order the military to redesign its barracks, to retool its pay scales, to re-ordain its chaplains, or any of the other specters raised in the application. The Courts injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability. With the injunction in place, nothing will change with regard to the composition of the military, the recruitment, training, promotion, demotion, and deployment of servicemembers, the mission and operations of the armed forces, or The application dresses the claim up in the garb of the public interest, a separate and distinct prong of the required four-factor analysis, but the supposed harms identified in the moving papers are all to the militarys institutional interests and its bureaucratic needs. Though the military ultimately serves the public, its interests are not the public interest and conflating the two, as the governments application attempts to do, is misleading. As discussed in Part D below, the true public interest is served by ensuring that the military is held to Constitutional standards. -5LOSANGELES 882425 (2K)
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anything else that pertains to the important governmental interest that the military serves. The evidence at trial showed that homosexual men and women already serve today; they are deployed to theaters of combat when needed indeed, retained overall in greater numbers when needed even if they are openly homosexual; it is their discharge, not their presence, that if anything impacts morale and good order. As the Court held (Am. Memo. Opinion (Doc. 250), at 59), [f]ar from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. The evidence at trial directly undermine[d] any contention that the Act furthers the Governments purpose of military readiness, id. at 64; and defendants admitted in public statements of the President and the Chairman of the Joint Chiefs of Staff that far from being necessary to further significantly the Governments interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest. Id. at 65. Enjoining the enforcement of DADT, far from injuring defendants, will actually improve morale, readiness, cohesion, and overall military effectiveness. Neither should the government be heard to argue, as it does in Part D of its Argument at page 12, that a stay of the injunction is necessary to preserve the status quo. Maintaining the status quo is not a talisman. Golden Gate Rest. Assn, 512 F.3d at 1116. The focus is on prevention of injury: [i]t often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. Id., quoting Canal Auth. of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). The supposed injury to the military that the government claims would result from the Courts order invalidating DADT is, by the governments own account, entirely a matter of rewriting handbooks and personnel manuals, -6LOSANGELES 882425 (2K)
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developing training and educational materials, reassuring serving personnel that their views, concerns, and perspectives are valued, and the like. These activities may or may not be burdensome and if they are, it is a burden the Constitution demands but they are not irreparable injury of the type that the test for a stay contemplates. By contrast, the injury to Log Cabins members and to all American servicemembers from granting a stay is truly irreparable, in a Constitutional sense, as the following section shows. C. Issuance of a Stay Will Substantially Injure Log Cabins Members, and All Homosexual Servicemembers, by Perpetuating the Denial of Their Constitutional Rights. If the Court grants the governments application for a stay of the injunction, homosexual servicemembers will continue to be investigated and discharged. The government admits as much, at page 12 of its brief (to the extent any servicemember faces discharge proceedings (or any other alleged immediate harm), that can be addressed.).5 Those investigations and discharges, as required by and carried out under DADT, violate the due process and First Amendment rights of the servicemembers, and deprivation of Constitutional rights is ipso facto irreparable injury. [C]onstitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm. Nelson II, 530 F.3d at 882; see also Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury); Tucker v. City of Fairfield, 398 F.3d 457, 464 (6th Cir. 2005) (same). Remarkably, the governments application does not even address at all the issue of Constitutional injury to Log Cabin and to homosexual servicemembers. On the other hand, maintaining the injunction in place while the government The government does not even offer that there could be a moratorium on investigations and discharges, at a minimum, while its appeal proceeds. -7LOSANGELES 882425 (2K)
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pursues its appeal preserves servicemembers Constitutional rights and allows them to continue serving in the military just as they do today. They will continue to be held to the military standards applicable to all servicemembers, and subject to the same discipline and regulations that apply to all. In the unlikely event that the Courts judgment is ultimately reversed and the Don't Ask, Don't Tell Act is reinstated, the government may resume investigations and discharges with no ill effects beyond the hiatus it will have experienced. But the ill effects to homosexual servicemembers of the inverse scenario disruption and termination of their military careers, with merely the hollow satisfaction of abstract vindication when the Courts judgment is ultimately upheld are irreparable. These individuals will not be reinstated, even if reinstatement could make them whole for the deprivation of Constitutional rights they would have suffered. The concrete injury to them from an ill-advised stay of the injunction far outweighs the theoretical harm to the government that might result from maintaining the injunction in place during the appeal process, and tips the balance of hardships sharply in favor of plaintiff. Witnesses at trial men and women, officers and enlisted personnel, from multiple branches of the service presented powerful, unforgettable testimony of the effects of DADT on their personal lives and on the lives of their unit comrades. Compelled by DADT to lie and dissemble about their human nature, subjected to unredressable humiliations, forced out of careers in which they were commended and decorated: these individuals proved that DADT causes, every day that it remains in force, irreparable injury to American servicemembers. Faced with a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in favor of the latter. Golden Gate Rest. Assn, 512 F.3d at 1126, quoting Lopez, 713 F.2d at 1437. D. The Public Interest Favors Denial of a Stay of the Injunction.
The analysis of where the public interest lies is a separate and additional -8LOSANGELES 882425 (2K)
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consideration from that of irreparable injury. Golden Gate Rest. Assn, 512 F.3d at 1116. The public interest is not identical to the governments interest; if it were, this factor would always count in favor of sustaining a statute or granting a stay of an injunction invalidating a statute, and there would be no need to include it as one of several factors to be considered. Here, the public interest is in safeguarding the Constitutional rights that define us as a nation. The public interest is not served by merely giving blind deference to military judgment. Rather, the clear public interest is in ensuring that the military, like every other institution of our society, conforms to Constitutional requirements. Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs.... Weiss v. United States, 510 U.S. 163, 176, 127 L. Ed. 2d 1, 114 S. Ct. 752 (1994). It must not be overlooked that it is not only servicemembers who are affected by DADT. Servicemembers family and friends third party members of the public are affected also, as their own First Amendment rights are impaired when a servicemember cannot write them a private letter or express affection to them in public. Their interests militate against the granting of a stay of injunction as well. The moving papers attempt to transform the presumptive constitutional validity of an act of Congress into an ipso facto conclusive declaration of the public interest; the application goes so far as to claim (at pages 5-6) that the interim invalidation of a statute by itself constitutes sufficient grounds to enter a stay. Leaving aside the question of whether this Courts permanent injunction following a full trial on the merits is in any sense interim, it is simply not the case that a stay is required whenever a statute is held unconstitutional. The cases cited by the government do not support that proposition. The language the government cites from New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977) (Rehnquist, J., in chambers) ([A]ny time a State is enjoined by a Court from effectuating -9LOSANGELES 882425 (2K)
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statutes enacted by representatives of its people, it suffers a form of irreparable injury.) was the ipse dixit of a single Justice. Citing no law, Justice Rehnquist granted a stay of a three-judge district courts injunction because he disagreed that the plaintiff challenging a state statute had a protected 14th Amendment liberty or property interest. By contrast, there is no question that a protected liberty interest is implicated here; Witt v. Department of the Air Force, supra, makes that clear. Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) relied on that same unsupported statement in New Motor Vehicle Board. Moreover, the procedural posture of the case is distinguishable; the case was about whether to grant a stay pending a petition for writ of certiorari, which was unlikely to be granted. Finally, the government cites Bowen v. Kendrick, 483 U.S. 1304, 1304, 97 L. Ed. 2d 787, 108 S. Ct. 1 (1987) (Rehnquist, J., in chambers) for the proposition that the Supreme Court tends to hear cases on the merits where a district judge declares an Act of Congress unconstitutional and often grants a stay upon the governments request. But Justice Rehnquist (again deciding the matter as a single Justice in chambers) goes on to explain that there is no categorical rule mandating such a stay in all cases. Rather, he explains that presumption of an acts constitutionality is but a factor to be considered in balancing the equities. Id. And far from the case here, the Bowen balancing analysis did not require consideration of a statute that the executive branch admitted did not further its stated goals. III. THE GOVERNMENTS CLAIMED HARDSHIP IS A RED HERRING As noted above, the heart of the governments argument in its application is to bemoan the administrative and rulemaking burden that would supposedly be placed on the military if the Courts injunction remains in place, and to plead that the current military Working Group be allowed to complete its orderly, if ponderous, research and recommendations project without interference from courts - 10 LOSANGELES 882425 (2K)
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fulfilling their constitutional function.6 The Court should reject these arguments, because they do not establish good cause for a stay of the injunction. First, not only is the timing of the working groups research arbitrary, but its result is uncertain. As the Court has recognized when the government has requested previous stays based on the working groups process, that groups report could be negative; its conclusions could be rejected, by the Executive or the military; and the Congress could disagree. Indeed, there is significant opposition today in the Congress to a legislative repeal of DADT even if the working groups report supports repeal. Homosexual servicemembers are fighting and dying today in two wars for their fellow Americans Constitutional rights; their own Constitutional rights should not be held hostage to an uncertain bureaucratic process that wants time to develop educational and training materials. Secondly, the government has known since July 24, 2009, when this case was set for trial, that there was a possibility that DADT would be declared unconstitutional and that it might have to prepare for that eventuality. If it chose not to do so with sufficient time, and not to start the Working Group review until a time when its work would overlap with this trial, that is not reason to stay this injunction now. And, critically, nothing in the injunction prevents the military from developing all the policies and educational programs it needs to; its ability to do so does not depend on the DADT policy remaining in place. Finally, the military has announced that it is now complying with the injunction and has stopped enforcing DADT pending these stay proceedings. See The ten-page Declaration of Clifford L. Stanley who, it now appears, should have been the governments 30(b)(6) witness on the topic of the compatibility or incompatibility of gay and lesbian Americans with service in the United States Armed Forces, including the effect of the presence of such individuals, if any, on unit cohesion, combat effectiveness, unit morale, good order, discipline, and readiness to fight goes into excruciating detail of the minutiae of the militarys supposed response to any change in DADT, and sheds crocodile tears for the uncertainty that would supposedly hang over our men and women in uniform if the military were forced to adjust to changing conditions on-the-fly, while completely ignoring the Constitutional rights of tens of thousands of homosexual servicemembers. - 11 LOSANGELES 882425 (2K)
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http://www.defense.gov/news/newsarticle.aspx?id=61279 (Attachment 2). If this is so, it belies the claim defendants make that compliance would cause ongoing irreparable harm to the military. As shown at trial, the military already regularly suspends DADT discharges in times of need, such as during combat operations; there is no reason to believe that maintaining the injunction should cause any harm to the military any more than any other such stop-loss order. IV. CONCLUSION The governments stated public position is that Don't Ask, Don't Tell weakens our national security and must end. Log Cabin could not agree more with the government on that point; the evidence at trial bore that out to a fare-thee-well. This Court has now ended the policy, consistent with its Constitutional duties. Staying the injunction that has been entered would have the effect of continuing to weaken our national security, a result the government should be ashamed to be seeking. This Court should deny the application.
WHITE & CASE LLP By:
Dan Woods Attorneys for Plaintiff Log Cabin Republicans
/s/ Dan Woods
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. CV 04-08425-VAP (Ex) Title: Date: October 20, 2010
LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE =============================================================== PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS: None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None AMENDED ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR ENTRY OF AN EMERGENCY STAY (IN CHAMBERS)
Defendants' Ex Parte Application for the Entry of an Emergency Stay ("Application") (Doc. No. 253), filed October 14, 2010, came before the Court for hearing on October 18, 2010. Plaintiff filed its opposition ("Opposition") on October 15, 2010. Having considered the papers filed in support of, and in opposition to, the Application, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Application for the following reasons as well as those set forth on the record at the hearing.
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I. ANALYSIS The suspension of equitable or injunctive relief ordered by a district court during the pendency of an appeal is authorized by Federal Rule of Civil Procedure 62(c). In determining whether to grant a stay, the court considers the same four factors for granting a preliminary injunction: (1) the proponent's likelihood of success on the merits; (2) the likelihood the proponent will suffer irreparable harm absent a stay; (3) whether issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Nken v. Holder, 556 U.S. ___, ___, 129 S. Ct. 1749, 1760-61 (2009) (citing Winter v. Natural Res. Def. Council, 555 U.S. ___, ___, 129 S. Ct. 365 (2008) (establishing standard for preliminary injunction and holding a moving party must show the existence of all four factors)); Golden Gate Rest. Ass'n v. City & County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The first two factors "are the most critical." Nken, 129 S. Ct. at 1757. "A stay is not a matter of right, even if irreparable injury might otherwise result," and the propriety of issuing a stay depends on the circumstances of the particular case. Nken, 129 S. Ct. at 1760-61. The decision to grant or deny a stay is committed to the trial court's sound discretion. Id. at 1761. The party requesting a stay bears the burden of demonstrating that the circumstances justify an exercise of that discretion. Id. at 1761 (citing Clinton v. Jones, 520 U.S. 681, 708 (1997); Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)). Turning to the circumstances present here, the Court first notes Defendants had an opportunity to, but did not, present any of the evidence or arguments now advanced before the injunction issued. When the Court issued its Memorandum Opinion on September 9, 2010, it set out a briefing schedule regarding the form of the injunction. Although Defendants objected to the issuance of the injunction and its scope, they provided no evidence regarding the alleged disruption or need to revise "dozens of policies and regulations," as described in the Declaration of Clifford L. Stanley ("Stanley Declaration"), Under Secretary of Defense for Personnel and Readiness. (See Stanley Decl. 22-26, 35-36.)
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Furthermore, to the extent Defendants now submit evidence in the form of the Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell Act's effect on military readiness and unit cohesion.1 The Court's injunction affects the discharge and separation from service of members of the armed forces pursuant to the Don't Ask, Don't Tell Act. The injunction would not impede the Defendants' stated goals of amending policies and regulations and developing education and training programs. Though the Stanley Declaration identifies some general categories of regulations housing, benefits, reaccession, military equal opportunity, anti-harassment, standards of conduct, and rights and obligations of the chaplain corps it fails to identify the specific policies and regulations or why they must be changed in light of the Court's injunction. The injunction does not affect benefits, for example, and the Uniform Code of Military Justice governs harassment issues. Further, the statements in the Stanley Declaration are vague, and belied by the evidence at trial that Defendants chose not to rebut. For example, the evidence presented by Plaintiff regarding housing and the negative effect the Don't Ask, Don't Tell Act had on military readiness and unit cohesion. So, to the extent Defendants now argue that stopping discharge under the Act will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial. Defendants did not do so. The evidence they belatedly present now does not meet their burden to obtain a stay. Turning to the first factor identified in Nken, Defendants have not demonstrated a "likelihood" of success on the merits nor have they made a showing that their appeal presents a "serious legal question." See Winter, 129 S. Ct. at 375 (rejecting the Ninth Circuit's "possibility" standard); Golden Gate Rest. Ass'n, 512 F.3d at 1115Defendants also submit as an exhibit a copy of an interview with President Obama from Rolling Stone. (See Stanley Decl., Ex. A.) This evidence is hearsay not subject to an exception, including the residual exception for evidence having "equivalent circumstantial guarantees of trustworthiness." See Fed. R. Evid. 803, 804, 807. Accordingly, the Court has not considered it. MINUTES FORM 11 Initials of Deputy Clerk: jh-relief CIVIL -- GEN Page 3
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16 (discussing the standard for "serious legal question"). Defendants' continued reliance on four out-of-circuit cases holding the Don't Ask, Don't Tell Act constitutional is misplaced; as the Court has pointed out previously, Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc), all predate the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), which recognized a fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 539 U.S. at 562. Cases decided before Lawrence are not relevant to this case because the Court's decision relies upon the Ninth Circuit's holding in Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008), which adopted the heightened level of scrutiny announced in Lawrence. See Witt, 527 F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence," and is subject to heightened scrutiny). Defendants chose not to appeal Witt and accordingly are bound by it. Defendants also argue they meet the burden here by citing to Cook v. Gates, 528 F.3d 42 (1st Cir. 2008). Cook is distinguishable, however. There, the district court granted a motion to dismiss, rather than ruling after a trial on the merits, as here. Furthermore, as discussed more fully in its Memorandum Opinion, the Court finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a facial due process challenge to the Don't Ask, Don't Tell Act, the Cook court presented two "circumstances under which the Act would be valid." See Cook, 528 F.3d at 56 (holding the Act is constitutional on its face because it provides for separation of a servicemember "who engages in a public homosexual act or who coerces another person to engage in a homosexual act" (citing United States v. Salerno, 481 U.S. 739, 745 (1987))). Those examples are bases for discharge of any servicemember, whether the conduct in question is homosexual or heterosexual. (See Mem. Op. at 15-16 (noting that "the Cook decision provide[d] no citation to any provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for discharge under that legislation").) Thus, Defendants have not shown a likelihood of success on appeal.
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The second Nken factor examines whether Defendants are likely to be irreparably harmed if a stay is not issued. Defendants argue invalidation of a statute "irreparably injures the Government and itself constitutes sufficient grounds for a stay." (Application at 5 (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1997) (Rehnquist, J., in chambers); Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (citing New Motor Vehicle in denying emergency motions for stay of mandate pending petition to the Supreme Court for writ of certiorari)).) Defendants have not shown, however, a likelihood they will suffer irreparable harm. As noted above, the injunction requires Defendants to cease investigating and discharging servicemembers pursuant to the Act. It does not affect Defendants' ability to revise their policies and regulations or to develop training and education programs, the only activities specifically mentioned in the Stanley Declaration. Furthermore, Defendants merely conclude, without explanation, that "confusion and uncertainty" will result if the injunction remains in place. Thus, Defendants have failed to establish they are likely to suffer irreparable injury if a stay is not granted. The third Nken factor considers whether the requested stay would substantially injure the other parties interested in the proceeding. Defendants do not explicitly address this factor in their Application, instead arguing "the harms to Defendants . . . outweigh any harm to servicemembers that may result from a stay." (Application at 12.) As Plaintiff correctly points out, the injury to interested parties here is the violation of servicemembers' constitutional rights to due process and freedom of speech and to petition the government, rights which were vindicated during the course of the trial. See Goldie's Bookstore, Inc. v. Superior Court, 739 F.3d 466, 472 (9th Cir. 1984) (noting a presumption of harm where a plaintiff has shown a violation of a constitutional right). As discussed more fully in the Court's Order Granting Permanent Injunction on October 12, 2010, Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights, and there is no adequate remedy at law to prevent the continued violation of those rights. (See Doc. No. 249 at 3 (citing American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1071 (9th Cir. 1995) (holding there is no adequate remedy at law for "denial of legalization based on a constitutional violation")).) As a stay would force Defendants to continue violating MINUTES FORM 11 CIVIL -- GEN Initials of Deputy Clerk: jh-relief Page 5
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servicemembers' constitutional rights, the third factor strongly weighs against granting a stay. Finally, the Court must consider whether a stay would serve the public interest. See Golden Gate Rest. Ass'n, 512 F.3d at 1116 (noting the analysis of where the public interest lies is a separate and additional consideration from that of irreparable injury) (citation omitted). Defendants argue a stay favors preserving the status quo and would prevent "confusion and uncertainty." (Application at 12.) Nevertheless, "[m]aintaining the status quo is not a talisman." Golden Gate Rest. Assn, 512 F.3d at 1116. Defendants suggest the public interest is identical to the Government's interest in defending the constitutionality of its statutes, arguing invalidation of a statute itself "constitutes sufficient grounds to enter a stay." (Application at 5-6 (citing New Motor Vehicle Bd., 434 U.S. at 1351; Coal. for Econ. Equity v. Wilson, 122 F.3d at 719).) The Court's analysis of the public interest is not so narrow, however. As discussed above, the evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preserving the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights. The evidence Defendants submitted with this Application has not demonstrated otherwise. Thus, Defendants have not met their burden in showing the public interest here lies in issuing a stay. II. CONCLUSION None of the factors the Court weighs in considering whether to enter a stay favors granting a stay here. Accordingly, the Court DENIES Defendants' Application for a Stay. IT IS SO ORDERED.
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10/24/2010
Defense.gov News Article: Department Case: 10-56634 10/25/2010 Page: 1 of 1 ID: 7521688 DktEntry: 9-24
Department Abides by Dont Ask, Dont Tell Injunction

By Jim Garamone American Forces Press Service WASHINGTON, Oct. 14, 2010 Pending an appeal, the military services have halted discharges under the Dont Ask, Dont Tell law, DOD officials said today. Judge Virginia Phillips of the U.S. Central District of California ordered the halt to discharges and investigations. Phillips found the Dont Ask, Dont Tell statute unconstitutional in a Sept. 9 ruling. On Oct. 12, she issued an injunction ordering the Defense Department worldwide to halt discharges and investigations. Earlier today, the staff judge advocate generals from the military services, in consultation with the Office of the Secretary of Defense Office of General Counsel, sent to their service staff judge advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 United States Code 654, commonly known as the Don't Ask, Don't Tell statute, Pentagon spokesman Marine Col. Dave Lapan said in a written statement. The e-mail noted that the U.S. government is contemplating whether to appeal and to seek a stay of the injunction, Lapan said. The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the department will abide by the terms in the courts ruling, effective as of the time and date of the ruling, he said.
www.defense.gov/utility/printitem.asp
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Case No. 10-56634

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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Dated: October 25, 2010

Respectfully submitted, WHITE & CASE LLP

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Case No. 10-56634

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ORAL ARGUMENT REQUESTED

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