'Don't Ask, Don't Tell' Challenge Declared Moot

The U.S. Ninth Circuit Court of Appeals today voided a gay activist group's lawsuit that challenged the recently revoked “Don't Ask, Don't Tell'' policy against open homosexual military service as unconstitutional.

In a 21-page decision, a three-judge panel ruled that the Log Cabin Republicans' 2004 suit against the federal government was moot because of the congressional repeal of the DADT policy.

The court nullified U.S. District Judge Virginia Phillips' decision in favor of the Log Cabin Republicans after a trial last year in Riverside.

“We vacate the district court judgment, injunction, opinions, orders and factual findings -- indeed, all of its past rulings -- to clear the path completely for any future litigation,'' the panel wrote. “These now-void legal rulings and factual findings have no precedential, preclusive or binding effect.

“The repeal of Don't Ask, Don't Tell provides the Log Cabin with all it sought and may have had standing to obtain.''

Log Cabin Republicans Executive Director Clarke Cooper decried the appeals court's decision, saying the roughly 14,000 gay and lesbian service members discharged under DADT now would have no basis for suing the government for “missed'' benefits.

“The decision by the Ninth Circuit ... leaves open the possibility of future violations of service members' rights,'' Cooper said.

“The court can vacate this ruling, but that does not change the fact that 'Don't Ask, Don't Tell' was unconstitutional.''

In a legal brief filed by Los Angeles-based law firm White & Case, representing the Log Cabin Republicans, attorneys argued that by declaring the case moot, the Ninth Circuit would “leave the government unconstrained from enacting another ... law prohibiting military service by homosexuals.''

The Log Cabin Republicans sued the federal government on the grounds that ''Don't Ask, Don't Tell'' infringed on gay troops' rights to free speech and due process of law. Under the 1993 law that gave rise to the policy, homosexual service members who were “outed'' were subject to discharge.

Phillips heard testimony from several former service members booted out of the military because of their homosexuality. One witness, ex-Air Force Maj. Mike Almy, a 13-year veteran, was drummed out after intimate email messages he had sent to a male lover were discovered on a computer he was using while stationed in Iraq.

Phillips cited that and other instances of privacy violations in making her ruling. She also pointed to studies indicating that openly gay service members did not pose a threat to “good order and discipline.''

The government did not offer any witnesses to rebut the plaintiffs and instead based its case on the right of Congress to pass a law such as DADT in the interest of national defense.

Justice Department attorneys appealed Phillips' decision and her injunction prohibiting further discharge proceedings against gays.

While the case was on appeal, the Democrat-controlled Congress, in a lame-duck session last December, passed the Don't Ask Don't Tell Repeal Act.

The action led to the official end of DADT last week. --Paul Young, City News Service