The Ninth Circuit Court of Appeals has come out … against further DADT arguments.
In a per curiam opinion, the Ninth Circuit announced today that the Log Cabin Republicans’ seven-year-old challenge to the Bill Clinton-era Don’t Ask Don’t Tell (DADT) policy was moot now that the policy has been repealed.
In determining whether a case has become moot on appeal, an appellate court “review[s] the judgment below in light of the … statute as it now stands, not as it … did” before the district court. Here, the suit became moot when the repeal of the DADT statute, 10 U.S.C. 654, took effect on September 20.
The court noted that if Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654. The repeal, in short, gave Log Cabin "everything" its complaint "hoped to achieve."
The Log Cabin Republicans disagree.
"This decision by the Ninth Circuit denies more than 14,000 discharged gay and lesbian servicemembers an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of servicemembers' rights," Log Cabin Republicans Executive Director R. Clark Cooper told Advocate.
The "don't ask, don't tell" policy, implemented in 1993, prohibited gays and lesbians from openly serving in the military. Now that the DADT has been repealed, gay and lesbian servicemembers face a new obstacle: securing federal benefits for their spouses. The Defense of Marriage Act, which remains in effect, prohibits the Defense Department from extending benefits to gay couples, even those married in one of the states that recognizes same-sex marriage.
- DADT Repeal Effective September 20, DOMA Issues Linger (FindLaw's Ninth Circuit blog)
- 'Don't Ask, Don't Tell' Repeal Makes Suit Moot (The Wall Street Journal)
- Ninth Circuit Asks White House to 'Tell' Court Its Position on DADT (FindLaw's Ninth Circuit blog)
- Full Faith and Credit Easiest Path to Marriage Equality? (FindLaw's Supreme Court blog)