Log Cabin Republicans attorney: “Witt makes it more likely the government will appeal” pending DADT trial injunction

(Cross-posted from LGBTPOV)

By Karen Ocamb

On Thursday, Sept. 9, District Court Judge Virginia Phillips ruled in Log Cabin Republicans v. United States of America that DADT is unconstitutional and had a “direct and deleterious effect” on the armed services. She wants to issue an immediate injunction against further enforcement worldwide – but delayed imposing that injunction until the Log Cabin Republicans and the DOJ had time to argue why she should or should not immediately and permanently halt enforcement of DADT.

On Thursday, Sept. 23, the DOJ filed its response asking the judge to continue the ban. DOJ Assistant Attorney Freeborne said enjoining enforcement of DADT worldwide, as LCR called for, is “”untenable” and beyond Phillips’ authority. Freeborne wants to limit any relief to LCR’s 19,000 members only.

“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” Freeborne wrote.

On Friday, Sept. 24, the LCR smacked back, hard. During the trial this summer in Riverside, Freeborne and the DOJ attorneys were incredibly rude and cocky, including towards Judge Phillips. She was not intimidated – and LCR attorney Earle Miller (pictured) reminded her of that experience. In his introduction, he wrote that the DOJ acted as if the “Court conducted a mock trial in July or tendered an advisory opinion” about whether her authority was limited to this district or circuit.

“The Court: Are you suggesting that, theoretically, if a district court orders that any regulation or federal law is unconstitutional, it only applies in the district where the Court sits?

Freeborne: Well, Your Honor, we can put that issue aside. I just note that I think that….

The Court: That’s because I think you are incorrect.”

Miller agrees and with profuse citations (see the complete filing below), writes that “such breadth is appropriate here, where only a worldwide injunction will safeguard the constitutional rights of the military personnel following the facial invalidation of DADT.” Limiting the scope of the injunction to just LCR members “will not afford complete relief.” He wrote:

“In this case, where the Court has found DADT unconstitutional on its face, an injunction that covers only Log Cabin members, or only extends to the countries of the Central District of California, would not provide complete redress of the Constitutional violations complained of. In a facial challenge brought by an associational plaintiff seeking to vindicate the rights of a nationwide – indeed, worldwide – class of individuals, a worldwide injunction is necessary to give the plaintiff its relief.”

Miller also argued that the court’s order “should foreclose the government from relitigating the constitutionality of DADT in multiple venues on an as-applied basis,” which is “precisely the point of a facial challenge – to force a single determination that DADT is unconstitutional, and short-circuit the thousands of as-applied challenges that the government would apparently prefer to litigate from one end of the country to the other.”

A stay is “inappropriate while DADT continues to cause harm daily to homosexual servicemembers.” Miller also notes that the DOJ is not asking for a stay pending an appeal – but instead is “asking the Court to ‘defer’ entry of any injunction for an unspecified ‘reasonable time.’” He reminded Phillips that she’s already “rejected a similar claim.” Miller wrote:

“Finally, and most troubling, the government’s request for a stay ignores the ongoing harm that would be suffered by current and prospective homosexual members of the our armed forces during the indefinite stay period that the government requests. The Court has ruled that DADT violates these individuals’ Constitutional rights. It is sad and disappointing that the government asks these men and women to continue to serve our country bravely, patriotically, and silently to protect the constitutional rights of all Americans, while it asks the Court to deny their indefinitely.”

Miller’s conclusion:

“Only an injunction binding the United State and the Department of Defense wherever they have servicemembers subject to DADT will adequately protect the thousands of men and women whose Constitutional rights are daily violated by that policy. Full relief here requires nothing less than a worldwide injunction, and the Court should enter judgment for Log Cabin and such a permanent injunction.”

I emailed lead LCR attorney Dan Woods and Miller with a couple of questions, especially given the victory in the Witt case. Here are questions to Dan Woods, modified a little for clarity:

KO: The Witt case is as-applied. You’re arguing that the DADT injunction should be worldwide. IF Judge Phillips agrees with you and orders and injunction against enforcement – will that mean that the government can no longer appeal the Witt case – or any other DADT existing case? I understand the LCR case would not be retroactive – so I’m wondering about on-going cases such at Lt. Victor Fehrenbach.

Dan Woods: If the court issues the injunction we requested, the government could appeal Witt but it would also have to appeal our case. If the court issues the injunction we requested, I imagine Lt. Fehrenbach’s lawyers would also use it to their advantage, also giving the government another reason to appeal it, to prevent Fehrenbach from using our case because it is on appeal and therefore not final. In short, Witt makes it more likely the government will appeal our case.

KO: What is your best guess about how the judge will rule? Do you think she will be impacted by what happened with the Senate vote at all?

DW: I hope that Judge Phillips signs the form of permanent injunction we requested. I do not think the Senate vote this week will impact her decisionmaking, except perhaps on the issue of the government’s request for a stay, where the vote helps us argue against a stay.

KO: I just posted a piece on how upset folks are about the DADT Senate vote – and how now folks are turning to you guys. Do you have ANY idea of what a timeline for this case might look like?

DW: In terms of a timeline, I can only guess but I estimate that Judge Phillips will issue a permanent injunction, in one form or another, by the end of the next week. After that, the government has 60 days to appeal. In the meantime, they are likely to ask her to stay enforcement of the judgment, she is likely to refuse, and the government would then have to seek a stay from the Ninth Circuit Court of Appeals. Sorry it is so complicated.

My question to Miller was about an attachment that accompanied the filing. It was a scan of the Sept. 1993 ruling out of the Central District Court of California in the DADT case filed by Keith Meinhold. I am not a lawyer so I was confused as to why he attached it. I also asked if he thought the 9th Circuit will take the “deference” custom more to heart than did Judge Phillips? Miller said:

“The attachment we filed was the injunction that the district court issued in Meinhold’s case. After some intermediate skirmishing up to the Supreme Court, the 9th circuit reversed the injunction so far as it ordered the government to do anything other than with regard specifically to Meinhold.

In other words, since Meinhold brought his challenge “as-applied,” the 9^th Circuit held that the injunctive relief should extend only to him and that was sufficient to give him full relief. We attached that order just to show Judge Phillips where we had taken some of the injunction language that the government objected to. That language was never actually enforced in the Meinhold case.

As for the military deference thing, the 9th Circuit has already held, in the Witt case, that (as we quoted in our brief) ” ‘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.” That is the best current indication of the views of the 9th Circuit that I know of.”

Though the federal LCR case has not received as much attention it warrants, it is my contention that this case is as shock full of evidence and expert witnesses as is the federal Prop 8 trial. It is remarkable to finally see discrimination based on sexual orientation laid out starkly in a court of law where evidence, not opinion or conjecture matter. Of course, judges are people with biases, too. But it is so nice to see two federal judges agree that lesbians and gays are being denied our constitutional rights.

And we should be grateful, too, to the lawyers who our fighting for our equality – in this case, two straight lawyers, Dan Woods and Earle Miller. And yet here is how Miller modestly signed off his email today:

“Thanks again for your interest in the case. We’re all happy to be helping to strengthen our country by pressing this issue forward.

Earle Miller

White & Case LLP”

Here is the Log Cabin Republicans’ response to the DOJ’s objections:

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