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A federal appeals court has vacated a ruling finding Don’t Ask, Don’t Tell unconstitutional, concluding that the Sept. 20 repeal of the military’s ban on openly gay servicemembers rendered the case moot. In a Sept. 29 ruling, the U.S. Court of Appeals for the 9th Circuit sided with the Justice Department, whose lawyers argued in court on Sept. 1 to vacate a ruling last year that found Don’t Ask, Don’t Tell was unconstitutional under the due process provisions of the Fifth Amendment and the First Amendment. The 9th Circuit’s decision means that the ruling, issued on Sept. 9 by U.S. District Judge Virginia Phillips in Riverside, Calif., will get dismissed and hold no precedent for future litigation. “This suit became moot when the repeal of [Don't Ask, Don't Tell] took effect on September 20,” the panel wrote. “We vacate the district court’s judgment, injunction, opinions, orders, and factual findings – indeed, all of its past rulings – to clear the path completely for any future litigation,” the panel said. “Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.” Log Cabin Republicans, which had filed a last minute brief on Sept. 28 urging the 9th Circuit to keep the ruling on the books, quickly condemned the decision. “ Log Cabin Republicans v. United States said more than ‘Don’t Ask, Don’t Tell’ should be repealed – it stood for the fundamental constitutional rights of servicemembers not to be discriminated against by the nation they serve. President Obama should be ashamed that he is responsible for undoing that important precedent,” wrote R. Clarke Cooper, executive director of the Log Cabin Republicans, in a prepared statement on Sept. 29. “The ruling in Log Cabin Republicans v. United States is the reason why Congress finally acted to end this failed and unconstitutional policy. This decision by the 9th Circuit denies more than 14,000 discharged gay and lesbian servicemembers an important means of obtaining justice for the wrong perpetrated against them under the ban, and leaves open the possibility of future violations of servicemembers’ rights.” A lawyer for Log Cabin Republicans, Dan Woods, a partner in the Los Angeles office of White & Case, said he planned to petition the 9th Circuit for a rehearing. Justice Department spokeswoman Tracy Schmaler did not respond to a request for comment. The ruling caps a dramatic year for the case, which began in 2004 when Log Cabin filed the suit as a general constitutional challenge to Don’t Ask, Don’t Tell. Judge Phillips dismissed Log Cabin’s claims brought under the equal protection provisions of the Fifth Amendment but retained its other constitutional allegations. Following a bench trial, Phillips issued her ruling in favor of Log Cabin. She also granted a worldwide injunction barring enforcement of Don’t Ask, Don’t Tell. The Justice Department appealed the ruling, which was stayed, arguing that Don’t Ask, Don’t Tell was constitutional at the time it was passed in 1993. But on Dec. 22, following months of wrangling in Congress, Obama signed a bill to repeal Don’t Ask, Don’t Tell. The repeal process was complete on Sept. 20. On Sept. 1, in oral arguments in Pasadena, Calif., Henry Whitaker, an appellate attorney in DOJ’s civil division in Washington, told the panel that Phillips’ ruling should be vacated because it is moot. The Justice Department reiterated its position in briefs filed on Sept. 20, the day of repeal. Woods had argued that the ruling should remain intact, in part for precedential value since another Congress in the future could repeal the repeal. He noted that several Republican candidates for next year’s presidential election have indicated they would support reinstating the old policy. The panel admitted that its decision couldn’t guarantee “that the Congress that passed the Repeal Act – or a future Congress whose composition, agenda, and circumstances we cannot know – will reenact Don’t Ask, Don’t Tell. We can only speculate, and our speculation cannot breathe life into this case.” Although the panel declined to address the constitutionality of Don’t Ask, Don’t Tell, one member, Judge Diarmuid O’Scannlain, a Reagan appointee, wrote in a separate concurring opinion that he would have reversed Phillips’ ruling. He said that the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas – the primary case on which Phillips relied – did not give the appellate courts the authority to grant due process rights that aren’t “narrow, carefully considered, and grounded in the nation’s history, traditions, or practices. The district court’s decision followed none of those instructions. Departing from settled practice was particularly improper in this case, which involved a facial constitutional challenge to a federal statute.” O’Scannlain also noted that nothing in Lawrence established a “fundamental right” to engage in homosexual conduct. “The case did not address the military context, did not establish a right to continued employment for those engaged in proscribed conduct, and did not address how homosexual conduct might be addressed outside a criminal context,” he wrote. “These limitations make clear that Lawrence does not establish that a member of the armed forces has a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military.” The cautionary tone isn’t unusual for O’Scannlain, who dissented in an en banc opinion denying rehearing of the 9th Circuit’s Witt v. Dep’t of Air Force opinion, which found that the legal standard for determining the constitutionality of Don’t Ask, Don’t Tell must be more stringent than the “rational basis” test. “In this highly charged area, we constitutionally inferior courts should be careful to apply established law,” O’Scannlain wrote. “Failure to do so begets the very errors that plagued this case. That failure culminated in a ruling that invalidated a considered congressional policy and imposed a wholly novel view of constitutional liberty on the entire United States. The Supreme Court’s cases tell us to exercise greater care, caution, and humility than that. Indeed, our constitutional system demands more respect than that. When judges sacrifice the rule of law to find rights they favor, I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them.” The other judges on the panel were Arthur Alarcón, a Carter appointee, and Barry Silverman, a Clinton appointee. Amanda Bronstad can be contacted at [email protected] .

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