Beruflich Dokumente
Kultur Dokumente
INDEX OF EXHIBITS
IN SUPPORT OF RESPONSE OF APPELLEE LOG CABIN
REPUBLICANS TO GOVERNMENT’S EMERGENCY STAY MOTION
Ex. 1. Order Denying in Part and Granting in Part Motion to Dismiss (June 9,
2009)
Ex. 4. Minute Order Denying Motion to Certify Order for Interlocutory Appeal
and for Stay (Nov. 24, 2009)
Ex. 10. Order Denying in Part Motion for Summary Judgment (May 27, 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. 18. Defendants’ Ex Parte Application for the Entry of an Emergency Stay
(Oct. 14, 2010)
Ex. 20. Amended Order Denying Defendants Ex Parte Application for Entry of
an Emergency Stay (Oct. 20, 2010)
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1 SEND
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-8425-VAP (Ex)
non-profit corporation, )
12 ) CIVIL TRIAL SCHEDULING ORDER
Plaintiff(s), )
13 ) Deadline for Initial Designation of Expert
v. ) Witnesses: January 5, 2010
14 )
UNITED STATES OF AMERICA ) Deadline for Designation of Rebuttal Expert
15 and DONALD H. RUMSFELD, ) Witnesses: January 19, 2010
SECRETARY OF DEFENSE, in )
16 his official capacity, ) Discovery Cut-Off: March 15, 2010
)
17 Defendant(s). ) Summary Judgment Motion
) Hearing Cut-Off: April 26, 2010
18 )
) Pretrial Conference: June 7, 2010 at 2:30 p.m
19 )
) Court Trial: June 14, 2010 at 8:30 a.m.
20 )
21
22
23
24 This case is set for trial before the Honorable Virginia A. Phillips, Courtroom 2,
25 United States District Court, 3470 Twelfth Street, 2nd Floor, Riverside, California.
26
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1 Motions
2 Judge Phillips hears motions in civil cases on Mondays at 10:00 a.m. The cut-off
3 date for hearing motions is the last day on which motions will be heard, i.e., the motion
4 must be filed and served at least 24 days before the deadline, if served by mail, in
5 accordance with the requirements of Local Civil Rule 6-1. A copy of every document
6 filed must be delivered to the chambers drop box outside Courtroom 2 ("the
7 mandatory chambers copy"). The cut-off date applies to all non-discovery motions
8 except motions directly related to the conduct of trial, e.g., motions in limine and motions
9 to sever parties or bifurcate issues for trial. If a cut-off date for hearing motions has not
10 been set by the Court, the cut-off date shall be at least twenty-one (21) days before the
11 Pretrial Conference. All motions in limine and other trial-related motions must be properly
12 noticed for hearing no later than the date of the Pretrial Conference.
13 All parties and counsel must comply with Local Rule 7-16, which provides as
14 follows:
15 Any moving party who does not intend to press the motion
16 or who intends to withdraw it before the hearing date, any
17 opposing party who does not intend to oppose the motion,
18 and any party who intends to move for a continuance of
19 the hearing of a motion, shall, not later than noon on the
20 Tuesday preceding the hearing date, notify opposing
21 counsel and the court clerk.
22 Failure to comply with this notification requirement may result in the imposition of
23 sanctions on the offending counsel and party.
24
25 Discovery
26 Counsel shall initiate all discovery other than depositions at least forty-five (45) days
27 prior to the cut-off date. The Court will not approve stipulations between counsel which
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1 permit responses to be served after the cut-off date except in unusual circumstances and
2 for good cause shown.
3 All depositions must be completed by the discovery cut-off deadline. Counsel shall
4 lodge all original depositions that will be used in trial with the Courtroom Deputy Clerk on
5 the first day of trial.
6 Discovery should be kept to a minimum and should focus only on issues genuinely
7 in dispute. Counsel are expected to resolve discovery problems without the assistance of
8 the Court. Discovery disputes have been referred to the United States Magistrate Judge
9 assigned to this case. The discovery cut-off is the last date to complete discovery,
10 including expert discovery. It is also the last day for hearing any discovery motion.
11 If not separately set forth above, the required expert disclosures shall be made
12 seventy (70) days before the discovery cut-off date.
13
14 Settlement Procedures
15 Local Rule 16-2.9 requires the parties in every case to participate in a formal
16 settlement proceeding. Counsel must complete the settlement conference or mediation by
17 the date listed above and shall include in the proposed Pretrial Conference Order a status
18 report detailing what procedure has been followed, and the status of settlement efforts.
19 The following procedures are available:
20 Settlement Procedure No. 1 - Unless an alternative settlement procedure
21 has been selected by the parties, and with the concurrence of the Court, the parties
22 shall appear before the Court or before the Magistrate Judge assigned to the case
23 for such settlement proceedings as the Court may conduct or direct.
24 Settlement Procedure No. 2 - The parties shall appear before an attorney
25 selected from the Attorney Settlement Officer Panel, or before an attorney
26 appointed by the Court for settlement proceedings.
27 Settlement Procedure No. 3 - The parties shall appear before a retired
28 judicial officer or other private dispute resolution body for settlement proceedings.
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1 proposed Pretrial Conference Order shall be in conformity with the form set forth in
2 Appendix A to the Local Rules.
3 The Memoranda of Contentions of Fact and Law shall be served not later than
4 twenty-one (21) calendar days before the Pretrial Conference. The proposed Pretrial
5 Conference Order shall be lodged seven (7) calendar days before the Pretrial Conference.
6 In drafting the proposed Pretrial Conference Order, counsel shall make a good faith
7 effort to agree on and set forth as many uncontested facts as possible. The Court may
8 read the uncontested facts to the jury at the start of the trial. Carefully drafted and
9 comprehensively stated stipulations of facts will reduce the length of trial and increase the
10 jury’s understanding of the case.
11 In drafting the factual issues in dispute for the proposed Pretrial Conference Order,
12 the issues of fact should track the elements of a claim or defense upon which the jury
13 would be required to make findings. Counsel should attempt to state issues in ultimate
14 fact form, not in the form of evidentiary fact issues (i.e., "was the defendant negligent,"
15 "was such negligence the proximate cause of injury to the plaintiff," "was the plaintiff
16 negligent;" not, "was the plaintiff standing on the corner of 5th and Spring at 10:00 a.m. on
17 May 3"). Counsel may list sub-issues under the headings of ultimate fact issues, but
18 should not use this as a device to list disputes over evidentiary matters. In general, the
19 issues of fact should set forth the disputed elements of the claims or affirmative defenses.
20 Issues of law should state legal issues upon which the Court will be required to rule
21 after the Pretrial Conference, including during the trial, and should not list ultimate fact
22 issues to be submitted to the trier of fact.
23 If expert witnesses are to be called at trial, each party shall list and identify its
24 respective expert witnesses. Failure of a party to list and identify an expert witness in the
25 proposed Pretrial Conference Order shall preclude a party from calling that expert witness
26 at trial.
27
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1 instruction. Each statement should be on a separate page and should follow directly after
2 the disputed instruction.
3 Accordingly, the parties ultimately will submit one document or, if the parties
4 disagree over any proposed jury instructions, two documents. If the parties submit two
5 documents, those documents should consist of: (1) a set of agreed upon jury instructions
6 and (2) a set of disputed jury instructions along with reasons supporting and opposing
7 each disputed instruction.
8 The parties should make every attempt to agree upon the jury instructions before
9 submitting them to the Court. In addition, where the Manual of Model Civil Jury
10 Instructions for the Ninth Circuit (2001 edition) provides a version of a requested
11 instruction, the parties should submit the Model instruction. Where California law applies,
12 the Court prefers counsel to use Judicial Council of California, Civil Instructions - ("CACI").
13 If neither of the above sources has an instruction on the subject, counsel are directed to
14 Edward J. Devitt, et al., Federal Jury Practice and Instructions (4th ed. 1987 & Supp.
15 1995). Each requested jury instruction shall cover only one subject or principle of law and
16 shall be numbered and set forth in full on a separate page, citing the authority or source of
17 the requested instruction (except for the jury copy discussed infra at ¶ 26).
18 The Court will send a copy of the jury instructions into the jury room for use by the
19 jury during deliberations. Accordingly, in addition to the file copies described above, the
20 parties shall file with the Courtroom Deputy Clerk on the first day of the trial a "clean set"
21 of joint and/or proposed jury instructions which contain only the text of each instruction set
22 forth in full on each page, with the caption "Court’s Instruction Number " (eliminating
23 titles, supporting authority, indication of party proposing, etc.). This will be referred to as
24 the "Jury Copy" of the jury instructions.
25 Counsel shall provide the Court with a CD-ROM containing the proposed jury
26 instructions, in WordPerfect or Word, along with the hard copy, no later than the first day
27 of trial.
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1 An index page shall accompany all jury instructions submitted to the Court. The
2 index page shall indicate the following:
3 ! The number of the instruction;
4 ! A brief title of the instruction;
5 ! The source of the instruction and any relevant case citations; and
6 ! The page number of the instruction.
7 EXAMPLE:
8 Number Title Source Page
9 1 Burden of Proof 9th Cir. 12.02 7
10
11
12 Joint Statement of the Case
13 Counsel shall prepare a joint statement of the case which will be read by the Court
14 to the prospective panel of jurors prior to the commencement of voir dire. The statement
15 should not be longer than two or three paragraphs. The statement shall be filed with the
16 Court seven (7) calendar days before the Pretrial Conference.
17
18 Matters to be Discussed at the Pretrial Conference
19 Counsel shall be prepared to discuss the following matters with the Court at the
20 Pretrial Conference:
21 ! the witnesses all parties intend to call during their respective cases, and the
22 amount of time necessary for direct and cross examination of each witness;
23 ! any anticipated problems in scheduling witnesses;
24 ! any evidentiary issues, including anticipated objections under Rule 403, and
25 objections to exhibits;
26 ! jury selection procedures;
27 ! all pretrial motions, including motions in limine, to bifurcate and to sever;
28
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1 ! any disputed jury instructions, and the form of the instructions which will be
2 given to the jury at the outset of the case, i.e., before opening statements
3 and presentation of evidence;
4 ! whether any counsel intends to use any evidence or demonstrative aid in
5 opening statement; and
6 ! motions to exclude witnesses from the courtroom during trial testimony.
7 If counsel for any party need to arrange for the installation of its own equipment,
8 such as video monitors, tape or compact disk players, notebooks or overhead projectors,
9 counsel shall notify the Courtroom Deputy Clerk no later than 4:00 p.m. two (2) days
10 before trial so that the necessary arrangements can be made.
11
12 Trial
13 The Court sets firm trial dates. Counsel shall arrive at the Courtroom not later than
14 8:30 a.m. each day of trial. The Court reserves the time from 8:30 to 9:00 a.m. to handle
15 legal and administrative matters outside the presence of the jury. The trial will commence
16 promptly at 9:00 a.m. Counsel shall anticipate matters which may need discussion or
17 hearing outside the presence of the jury and to raise them during this period.
18 The Court is in session with the jury on Tuesdays through Fridays, 9:00 a.m. to 4:30
19 p.m., with a morning and an afternoon break and a lunch recess from approximately 12:00
20 to 1:15 p.m. In most cases, jury selection is completed on the first morning of trial, and
21 counsel should be prepared to give opening statements and begin presentation of
22 evidence immediately thereafter.
23 All counsel are asked to observe the following practices during trial:
24 ! All counsel, defendants, and parties shall rise when the jury enters and
25 leaves the courtroom.
26 ! Counsel shall stand when addressing the Court, including when objecting to
27 opposing counsel's questions.
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1 ! When objecting, counsel should state only "objection," and the legal ground
2 for the objection (e.g., hearsay, irrelevant, etc.). Counsel should refrain from
3 arguing the legal basis for the objection unless permission is granted to do
4 so.
5 ! Counsel must seek leave to approach the Courtroom Deputy Clerk or the
6 witness, and should question witnesses while standing at the lectern.
7 ! Counsel must address all witnesses, including their clients, by the witness's
8 surname. Young witnesses, i.e., children younger than age 15, may be
9 addressed by first names, however.
10 ! Counsel shall not discuss the law or argue the case in opening statements.
11 ! Counsel shall address all remarks to the Court, and should not directly
12 address the Courtroom Deputy Clerk, the Court Reporter, opposing counsel
13 or the jury (except in opening statement and closing argument). Counsel
14 must ask the Court for permission to talk off the record in order to speak with
15 opposing counsel.
16 ! Counsel shall not make an offer of stipulation unless he or she has conferred
17 with opposing counsel and believes that the stipulation will be accepted. Any
18 stipulation of fact will require the defendant’s personal concurrence and shall
19 be submitted to the Court in writing for approval.
20 ! While Court is in session, counsel may not leave the counsel table to confer
21 with witnesses, colleagues or assistants in the back of the courtroom unless
22 the Court grants permission to do so in advance.
23 ! When a party has more than one lawyer, only one of the lawyers may
24 conduct the examination of a given witness and only that same lawyer may
25 handle objections during the testimony of that witness.
26 ! If a witness was on the stand before a recess or adjournment, counsel shall
27 have the witness back on the stand and ready to proceed when Court
28 resumes.
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1 ! If there is more than a brief delay between witnesses, the Court may deem
2 that the party has rested.
3 ! The Court attempts to cooperate with witnesses and will, except in
4 extraordinary circumstances, accommodate them by permitting them to be examined out
5 of sequence. Counsel should discuss any scheduling issues with opposing counsel. If
6 there is an objection, confer with the Court in advance.
7
8 Trial Preparation for Court Trials
9 Fourteen (14) calendar days before the trial date, each party shall prepare and
10 serve on opposing counsel copies of the proposed Findings of Fact and Conclusions of
11 Law. Each party shall review the other party’s proposed Findings and Conclusions and
12 make such changes in the party’s own proposed Findings and Conclusions as necessary
13 following such review. Seven (7) calendar days before the trial date, each party shall
14 lodge two copies of its proposed Findings of Fact and Conclusions of Law with the Court,
15 also serving other parties if changes have been made. The parties shall be prepared to
16 submit to the Court, and to exchange among themselves, supplemental Findings of Fact
17 and Conclusions of Law during the course of the trial.
18
19 Internet Site
20 Counsel are encouraged to review the Central District’s website for additional
21 information. The address is “http://www.cacd.uscourts.gov”.
22
23 The Courtroom Deputy Clerk is ordered to serve a copy of this Order personally or
24 by mail on counsel for all parties to this action.
25 IT IS SO ORDERED.
26 Dated: July 24, 2009
27 VIRGINIA A. PHILLIPS
United States District Judge
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
None None
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
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CV 04-8425-VAP (Ex)
LOG CABIN REPUBLICANS v UNITED STATES OF AMERICA
MINUTE ORDER of July 24, 2009
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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CV 04-8425-VAP (Ex)
LOG CABIN REPUBLICANS v UNITED STATES OF AMERICA
MINUTE ORDER of July 24, 2009
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
None None
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 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.
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MINUTE ORDER of November 24, 2009
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 3:21–4:28.)
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 1:18–25); (2) the legal issues are identical to those presented
in Defendants' motion to dismiss, (see id. at 1:25–2:5); and (3) the issues raised in
the Motion are not susceptible to resolution through the meet and confer process,
(see id. at 2:6–11), 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.
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 3:27–4:1.) 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 12:6–13:8; Reply at 3:11–7:9.) The
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1
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 3:16–20.)
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IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' Motion.
IT IS SO ORDERED.
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3 EASTERN DIVISION
4 - - -
6 - - -
13
REPORTER'S TRANSCRIPT OF PROCEEDINGS
14
Riverside, California
15
Thursday, February 18, 2010
16
9:07 A.M.
17
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2 APPEARANCES:
4 On behalf of Plaintiff:
5
WHITE & CASE
6 BY: Dan Woods
BY: Patrick Hagan
7 633 West Fifth Street,
Suite 1900
8 Los Angeles, California 90071-2007
213-620-7772
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On behalf of Defendants:
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1 I N D E X
2 Page
3 Status Conference................................. 4
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2 -oOo-
10 MR. WOODS: Dan Woods and Patrick Hagan, White & 09:07
15 progress towards the trial date, which is June 14th, and also 09:07
23 to defense counsel.
2 Judge Kozinski.
4 I considered the request -- and if it had not been for the two
5 reasons I'm about to get to, I would have, of course, sought a 09:08
8 but there are two impediments, as I see it, for any case to
12 now -- that is, putting a stay on the one case in the northern
17 issues with respect to the changes in the local rules that were
20 our local rules, like the northern district's local rules at 09:10
24 the right word, but there are various other issues in the pilot
25 project that came to light during the first trial that 09:10
5 caused the Supreme Court to issue a stay, such as whether it's 09:11
7 the equipment -- that is, all the equipment that would allow
12 circuit, and then, until if and when our court changes its
17 date.
21 has proceeded forward with the parties, the discovery that was
22 discussed at the last hearing, since I have not seen you going
10 to repeal the statute; and then on February 2nd, there was 09:14
5 who's the one member that plaintiff has identified, he alleges 09:15
10 both the standing and it could also alter whether or not even 09:15
15 Secretary Gates noted at the February 2nd hearing before the 09:16
25 notices for both Secretary Gates and Admiral Mullen. There 09:16
4 this case into the political issues. And with all due respect,
5 we would ask that the Court allow the political process to work 09:17
6 its will here and not have this case interfere with that
17 issues that are now being considered by this task force, for
24 of the 30(B)6 notice that we've objected to; that's now being
2 Department of Defense?
8 statements.
14 Mr. Woods?
18 get this case ready for trial in June; so, yes, we have served
7 for?
9 they follow the week after that in the Bay Area, and the week
15 July status conference, we intend to rely upon the statute and 09:20
20 perspective on the recent State of the Union address and Senate 09:20
21 hearing.
25 example, your Honor, the State of the Union address occurred on 09:20
1 January 27th. One day later, January 28th, we were served with
3 served on the government. One day after the State of the Union
10 Your Honor, that the defendant has refused to produce any 09:21
4 the Union address and whatever comments were made at the Senate
6 vigorously.
10 interim review being done and a longer-term review being done. 09:22
12 Your Honor.
15 and a half years more. Let me explain why I say that. At the 09:23
22 or not.
7 timeline.
16 Congress made.
19 at the earliest, the middle of 2012, more than two years from
20 now. And that also assumes that Congress acts to repeal the 09:25
5 was not going to take effect until, at the very earliest, more 09:25
6 than two years from now, and more than two years after the
20 standard adopted by the Ninth Circuit in the Witt case with 09:26
1 thinking about changing the policy, your Honor, gay and lesbian
15 in this at the same time that we're preparing a case for trial. 09:28
17 matter.
19 60 days, I'm opposed to that for all of the reasons that I just
2 gay and lesbian members of our armed forces, who are fighting
5 it. 09:29
7 November when the government was trying to stay the case then.
8 Your order denying the stay at that time made perfect sense,
10 fact that the government has not moved for a stay, which it 09:29
25 important things to discuss based on what you have both just 09:30
5 I'm going to try to disagree with that, disagree with myself. 09:31
6 But since the government has probably wisely asked for at this
14 definite term; and that's not to say that I have decided that
18 sense, looking back at the timeline that you just argued about
21 about at least two and a half years after our trial date. The
22 problem I have with that amount with the timeline that you
5 every reason to believe you'll start on the date that I have 09:33
7 will not start on June 14th, because this is an old case and
12 implement.
15 is somehow longer than it would take if the Court's ruling had 09:34
20 the remedy we'll ask you for. We will ask you to enjoin the 09:34
4 occurs overnight.
6 plaintiffs will prevail, but the words that come to mind are
13 order.
17 some years ago, my first day on the job, the judge declared an
19 And there were appeals and such, but in the meantime, the
20 judge's order became, in effect, the law of the land. And 09:36
22 context.
5 would make sense, Your Honor, because in the meantime, people 09:37
20 reason for a short stay over a finite period of, say, 30 to 09:38
23 moratorium.
25 Secretary Gates at the very second hearing said that there 09:39
4 thinking about.
10 elevating the level, the rank, if you will, of an officer who 09:39
15 members of our armed forces fighting for our country today. 09:40
20 considered. And just so I'm clear, these issues are being 09:40
24 during this 45-day review period, and he said "We can raise the
1 inquiry." That's what Mr. Woods just alluded to. "We can
2 raise the level of the officer who conducts the inquiry; we can
10 "We also have to devise new rules and procedures in light of 09:41
13 court."
15 issues that are being considered. Whether any of those will 09:41
17 we're all on the same page about the breadth of the issues, is
20 to the statute and regulations. One needs only to look at the 09:41
15 And of course, that has not been briefed and that's 09:44
16 almost a brand new issue in this case, given the most recent
17 the trial date, not a stay of the entire case, so that we have
21 THE COURT: Let him finish, and then I'll let you be
22 heard.
1 client.
9 that the current law would not permit that; so they are not
15 discharged unless and until there was an actual showing that 09:47
19 people fighting for our country today who have been delayed in
22 Mr. Freeborne?
25 are asking for nationwide relief, which this Court would not 09:48
3 district.
5 plaintiffs succeed in this case on the relief that they are 09:48
13 Court sits?
6 regs on the books that could fundamentally alter this case and,
12 regulations?
16 see what those regulations are and see how they affect this
17 case, this very case that the Court has before it.
2 actually moot some of the discovery issues that the Court would
5 which, again, I'm not here to commit to any regulatory changes 09:51
6 but --
9 may not occur. I'm not sure I agree with you about how the
16 governed.
19 know, is you look at the type of enactment and you look at the
25 legal reasons we set forth in July, but also we run into the 09:53
10 privilege or the political question issue. But the more I hear 09:54
13 under submission, and I may ask for briefing from both sides --
15 for a short period of time and continue the discovery cutoff 09:54
19 time.
22 rather than continuing the trial date, I'll ask for further
25 I'll give both sides ten days in which to submit briefing on 09:55
1 those issues.
2 Is that preferable?
4 stay of the --
5 THE COURT: I'm not inclined to stay the case. I'm 09:55
12 more time.
20 regulations will issue; we don't know what they'll be; we don't 09:56
21 know what the affect of them will be on the status of the case.
25 or August. 09:56
20 THE COURT: And wait and see what happens with the 09:58
23 to question them about what they are doing. The questions were
25 the statute. We're not trying to get into the politics of 09:58
4 and the Chairman of Joint Chiefs of Staff all today now seem to
5 agree with our position, leaving the government defending the 09:58
25 (Proceedings concluded.)
3 CERTIFICATE
9 _____________________________ _________________
THERESA A. LANZA, CSR, RPR Date
10 Federal Official Court Reporter
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
None None
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.
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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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CIVIL MINUTES-GENERAL
DOCKET ENTRY
PRESENT:
None None
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) Plaintiff’s “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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PRESENT:
None None
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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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.
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UNITED STATES DISTRICT COURT
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None None
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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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.
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.
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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.
IT IS SO ORDERED.
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HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
4
5 LOG CABIN REPUBLICANS, )
)
6 Plaintiff, )
)
7 V. ) DOCKET NO. CV 04-8425 VAP
)
8 UNITED STATES OF AMERICA, )
et al., )
9 )
Defendants. )
10 ________________________________)
11
REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS
12 Riverside, California
Monday, April 26, 2010
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14 PHYLLIS A. PRESTON, CSR
License No. 8701
15 Federal Official Court Reporter
United States District Court
16 3470 Twelfth Street
Riverside, California 92501
17 Stenojag@aol.com
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For the Plaintiff: WHITE & CASE
3 By: DAN WOODS
PATRICK HUNNIUS
4 633 West Fifth Street, Suite 1900
Los Angeles, California 90071-2007
5
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7 For the Defendants: U.S. DEPARTMENT OF JUSTICE
By: PAUL FREEBORNE
8 IAN GERSHENGORN
SCOTT SIMPSON
9 CAPTAIN PATRICK GRANT
20 Massachusetts Avenue, NW, Room 6108
10 Washington, DC 20001
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2 On the merits of this case, although I've read
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1 could refile and perhaps that would be the remedy here. But
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1 Honor.
2 THE COURT: Do you have something to say? Did you
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1 D.C. law.
2 MR. WOODS: Again, Your Honor, it is our position,
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11 and what we've done in the short amount of time we've had, I
12 think we did a good job of finding out evidence and
13 presenting it to you. And, again, this creates a genuine
14 issue of material fact. Before this case is tried, whenever
15 it's tried, we will be better prepared to give you more
16 evidence on that, but I don't know what else to tell you. If
17 we need to have Mr. Meekins testify at trial on this, we
18 will. I imagine to have the other witnesses about the
19 honorary membership of Mr. Nicholson and the like testify at
20 trial.
21 Again, as I said, with respect to the Lujan case,
22 the standing issue is determined at different stages of the
23 litigation by the governing burdens that apply to each stage
24 of the lawsuit.
25 THE COURT: I'm going to take a short recess at
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11 terms of the -- I'm not concerned about the issue that the
12 Government has argued. I have listened to their argument,
13 but I'm not concerned about it being an eleventh-hour issue,
14 because the issue about the exact timing of Colonel Doe's
15 membership was not squarely raised except by the Court in the
16 form of the question raised in the tentative ruling. So the
17 fact that it wasn't dealt with until after the Court issued
18 the tentative ruling, I think that's the reason. But the
19 Court has a duty to raise issues regarding its jurisdiction,
20 including standing, on its own even if neither party has
21 raised it.
22 MR. WOODS: Your Honor, excuse me for interrupting.
23 On that point you're absolutely right. That specific point
24 was not even mentioned in the meet and confer session that
25 led to the motion for summary judgment.
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11 this argument, the two primary cases the Government cites are
12 the Vermont Agency of National Resources v. Stevens, which is
13 a qui tam case where in general the Court addressed the type
14 of injury a relator suffered in order to satisfy the first
15 element of the standing inquiry, but that case really is so
16 factually distinct from our case, I don't find its analysis
17 to be that helpful.
18 The Gange Lumber case also cited by the Government,
19 the 1945 case, which deals with the State of Washington's
20 change in the administration of that state's industrial
21 insurance program, apart from a reiteration of the general
22 principles of standing, which aren't really in controversy,
23 that case, too, is not particularly helpful.
24 Both sides argue a bit about the -- or rely to a
25 certain extent, argue the impact of the City of L.A. v.
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11 here. But it goes on to hold that one does not have to await
12 the consummation of threatened injury to obtain preventive
13 relief. If the injury is certainly impending, that is
14 enough. And there is various other cases that are cited.
15 I think that's exactly the situation here where
16 the -- it's certainly impending; that is, initiation of
17 separation proceedings, if Colonel Doe announces his sexual
18 orientation. In fact, in the merit section of the moving
19 papers in the Government's careful discussion of the policy,
20 both the findings that support it and the policy itself, a
21 statement that one is homosexual is grounds for initiation of
22 separation proceedings.
23 So I don't think that the Government's position
24 here that it's conjectural or hypothetical that the "Don't
25 Ask, Don't Tell" policy would be enforced is well-taken.
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3 conjectural or hypothetical.
4 There are a number of other cases and one the name
5 of which I thought I had in my notes, but I don't. It
6 involved -- I think it was a Ninth Circuit case which
7 involved someone who was passing out handbills and was
8 challenging the ordinance that forbade that. He was warned
9 specifically by a police officer that if he was caught doing
10 it again, he would be arrested. His companion who was also
11 handing out handbills was arrested. And the Court held that
12 that was enough to show standing and that was a facial
13 challenge.
14 So I think that that is certainly -- that's
15 probably as close factually as we could find. So I'm not
16 persuaded by the Government's argument. That's pretty much
17 the last argument that we haven't addressed here on standing.
18 Do you want to respond, Mr. Freeborne?
19 MR. FREEBORNE: Your Honor, the phrase that you
20 referenced in the Babbitt opinion mirrors that in the Lyons
21 decision which isn't pending. If Colonel Doe is to be
22 believed in his declaration, he has served for over 20 years
23 without being subject to the policy. He alleges that his
24 speech has been chilled, but Your Honor has already
25 dismissed that aspect of their First Amendment claim. So now
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3 discharged.
4 THE COURT: But the initiation of the discharge --
5 I mean, I think -- is your argument that the initiation of
6 the discharge itself is not an injury?
7 MR. FREEBORNE: Well, Your Honor, our argument is
8 that the fact that that would occur, given that Lieutenant
9 Colonel Doe has served for over 20 years, is inherently
10 speculative and it's not imminent or impending as the case
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3 refused to do that.
4 THE COURT: But your argument, in the alternative,
5 is that there's another sort of injury that he suffers by
6 virtue of the policy, but that's different from the standing
7 injury, in a sense.
8 MR. WOODS: I'm not sure it is, Your Honor. I mean
9 he has been injured by "Don't Ask, Don't Tell" even though he
10 hasn't been discharged. He's been injured, as he stated in
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1 he's been in the Army Reserves for 20 years, he just got back
2 from Iraq. He's very worried that the Government is trying
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11 given Lawrence and Witt. It's not altogether clear what the
12 standard should be because Witt did not, as you point out,
13 address a facial challenge. It didn't address it, so it
14 didn't rule on what standard to apply to a facial challenge.
15 But I think there's no reason why the same standard
16 of Witt wouldn't apply or, at a minimum, something in between
17 the Witt standard and mere rational basis review ought to
18 apply. That's because, in part, the importance of the rights
19 that are being effected here, and in part, because that's
20 what the Circuit has done before when faced with this in
21 cases like Beller.
22 I think, Your Honor, also that regardless of what
23 standard is applied, whether it's the lowest possible
24 rational basis standard or some other standard, we have
25 presented enough evidence to show you that there are genuine
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1 materials.
2 Let me mention, Your Honor, the point that
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3 from the '90s as if that's Gospel truth that you must accept
4 and there's no way to challenge a law that is passed because
5 there is some congressional finding that might support it.
6 Your task here is to review whether that was or wasn't
7 rational under whichever standard you decide to employ.
8 You know, the Government is citing Beller in its
9 motion three times and, you know, the Witt court held, quote,
10 we also conclude that our holding in Beller is no longer good
11 law. The Government cites the Holmes case in its motion and
12 its reply, and you have already ruled that the Lawrence case,
13 quote, removed the foundation on which Holmes rested, close
14 quote, and that Lawrence, quote, dissolved, close quote, your
15 words again, the foundation on which Holmes rested. That's
16 from your June 9 order at page 18.
17 The main case cited by the Government's motion is
18 the Philips case. This Court has already ruled that that is
19 an equal protection case and that that makes a difference
20 here, because Lawrence treated equal protection of due
21 process separately, and Lawrence doesn't support the
22 Government's arguments about Philips. You ruled that in your
23 July 24, 2009 order when we were arguing about discovery.
24 You said then, quote, accordingly, the Court does not find
25 that Perry's equal protection holding forecloses relief for
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C E R T I F I C A T E
DOCKET NO. CV 04-8425 VAP
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP
non-profit corporation, ) (Ex)
12 )
Plaintiff, ) [Motion filed on March 29,
13 ) 2010]
v. )
14 ) ORDER DENYING IN PART MOTION
UNITED STATES OF AMERICA ) FOR SUMMARY JUDGMENT
15 and DONALD H. RUMSFELD, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
________________________
18
19 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
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 party’s case. Celotex, 477 U.S. at 325.
16 Instead, the moving party’s burden is met by pointing out
17 that there is an absence of evidence supporting the non-
18 moving party’s 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
10
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1 c. Proceeding Pseudononymously
2 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. (See Defs.'
6 May 3, 2010 Mem. of P. & A. at 5:11–7:23.) 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. (See Docket No. 83
10 at 13:13–20.) 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 9:3–6.)
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 16:1–17:14.) 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 2. Terry Nicholson
24 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
22
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1
3 EASTERN DIVISION
4 - - -
6 - - -
13
REPORTER'S TRANSCRIPT OF PROCEEDINGS
14
Riverside, California
15
Monday, June 28, 2010
16
3:27 P.M.
17
18
19
20
21
22
1
APPEARANCES:
2
3 On Behalf of Plaintiff:
4
WHITE & CASE
5 BY: Dan Woods
BY: Earle Miller
6 BY: Aaron Kahn
633 West Fifth Street,
7 Suite 1900
Los Angeles, California 90071-2007
8 213-620-7772
10 On Behalf of Defendants:
11
UNITED STATES DEPARTMENT OF JUSTICE
12 Civil Division, Federal Programs Branch
BY: Paul G. Freeborne
13 BY: Joshua E. Gardner
BY: Ryan Bradley Parker
14 BY: W. Scott Simpson
20 Massachusetts Avenue, NW
15 Room 6108
Washington, DC 20001
16 202-353-0543
17
18
19
20
21
22
23
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25
1 I N D E X
2 Page
3 Proceedings........................................ 4
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2 -oOo-
4 Am I recalling correctly?
9 care of.
16 could go for four days, since it's a nonjury trial, and then
4 the merits.
11 me to be unnecessary.
16 motion with respect to the exhibits. And I think for the sake
20 certain extent -- I'll take up, first, the motion to exclude 03:31
10 this case. That's one of the subjects of our motion in limine. 03:33
12 motions in limine.
19 legislative history and agree upon what that consists of, but
22 purposes only. We don't see that the Court benefits from that.
15 parties the notebooks that have all of the exhibits. To the 03:34
22 objections as to authenticity.
5 inappropriate. 03:36
11 experts.
16 with the government that for the most -- well, almost entirely,
22 apply.
25 want to jump around; I really want to keep this focus for the 03:37
5 "Don't Ask, Don't Tell." And his entire theory is based upon 03:38
6 an animus theory.
10 Professor Frank. Right, it was his report. That is what I'm 03:38
11 thinking of.
13 any other expert, he can testify, Yes, this is what I was asked
15 qualifications; these are the things I relied on, and so forth. 03:39
25 doesn't come in. You can cross-examine on it, but it's 03:40
1 hearsay.
3 on the exhibit list, because it's not going to come in. It can
15 chaos at trial trying to keep straight what documents have been 03:41
23 which ones would be admitted and which ones would not be,
9 I misstate it, I'm sure one or both sides will correct me.
24 cumulative.
15 that, either in the case of a 30(b)(6) witness, went beyond the 03:45
20 context. Sometimes it was clear to me that what was cited was 03:46
25 knowing a fellow servicemember was gay and how it would affect 03:46
3 those quotes were cited, that -- well, I'll just leave it with
11 just to rule.
20 order, the first one: Was the failure to identify the eight 03:47
22 Rule 37(c)(1)?
25 names were not disclosed until May 17th and the addresses and 03:48
7 disclosures.
9 call these witnesses until the Court put the parties on notice
10 that it was inclined to adopt the Witt standard of review; and 03:49
12 its intent to call these witnesses and made them available for
13 deposition.
18 So, in part, the issue comes down to, were the claims
20 apply the Witt standard? Does that change the claims? 03:49
1 interest."
10 are:
16 terms; and they only had the identities for about a month
17 before trial, June 7th, and trial begins -- well, they had the
6 that they could testify later in the trial, rather than at the
8 depositions.
13 it's workable.
20 MR. FREEBORNE: Your Honor, the Court has not ruled 03:53
1 a witness.
4 as to Mr. Meekins.
13 I'm sorry.
16 And, Your Honor, our view was that you had already
17 ruled about Mr. Meekins at our last hearing. And that's part
19 issues the government raised at the last hearing, and you ruled
20 at the time that the late disclosure, assuming it was late, of 03:54
21 Mr. Meekins was not something that would preclude him from
22 testifying.
6 think both of us believe that you have ruled that there are
7 triable issues.
9 standing.
13 issues.
18 issue.
20 was your motion, and you raised standing -- actually, I don't 03:56
24 THE COURT: No. I'm sorry. You did raise it, but
3 and that came in today -- they have not said when John Doe paid
6 fact, they still refuse to say that. And they refuse to come
9 this case.
12 motion for summary judgment, what the defense did not raise and
14 shortly before the hearing was first scheduled was the issue of
15 when both Lieutenant Colonel Doe and Mr. Nicholson became 03:57
16 members. That was not an issue that either party had focused
19 that's just not the case. But I don't know if we have to use
9 some confusion.
14 date specified within the year that the action was filed in
15 connection with the evidence that was adduced by the plaintiff 03:59
18 know if we --
21 All right.
25 defense, and certainly not by the argument that their testimony 04:00
1 would be cumulative.
9 under the case law, I don't find that under Rule 37(c)(1) that
22 example -- and this is not the only thing that the plaintiff is
1 example.
5 discharge, to show that the policy doesn't further its stated 04:02
7 that issue?
10 the government states, that the policy does not further or 04:03
19 conducting depositions.
22 close of discovery. And what they say, as the Court has said,
1 identification by name.
5 But then they say in the next breath that it wasn't 04:05
6 until after the hearing in this case on April 27th that they
10 itself had not decided to rely on those individuals until after 04:06
11 April 26th; and they had not decided until later who those
12 people were.
17 that they had actually decided that, Yes, we are going to rely
25 THE COURT: And then you got the contact information, 04:07
5 egregious.
7 have a pretrial meet and confer that LCR finally provided the
10 pretrial meet and confer. They initially resisted having that 04:07
12 them some more that finally they said, Okay, here's our list of
15 time, they would have given us the names even later. 04:07
5 suggest, Your Honor, that the Court not focus on simply the 04:08
11 which the Court has already ruled, denying that aspect of the
12 motion.
21 unconstitutional.
25 belie their assertion at the same time that this is a facial 04:09
1 challenge.
14 also belies their asserted need for this testimony about the
3 Mr. Woods.
11 in the meet and confer with us, had indicated that the
25 our argument that they had initially thought about at least 04:12
2 all. And there's no response at all to our point that this was
11 day each. The government may not have seven lawyers today at
12 the counsel table; they only have four. The government has
17 disagree with our position about this and elected not to take
18 those depositions in the time that has passed since May 20th.
21 depositions now.
23 complain that they are being treated unfairly when you are
25 depositions that they could have already finished if they had 04:14
4 Witt standard.
12 that interest.
23 them.
25 We filed them, in part, to show you that they were not 04:15
1 cumulative, that some were men, some were women, some were of
2 one branch, some were another branch, some were one rank, some
6 the policy.
10 or six individuals. And they are all different and hardly 04:16
11 cumulative.
13 That's not a concern to me. I think the number that you gave
18 cumulative.
23 is unconstitutional.
25 understand the argument that you made in the papers and the 04:17
20 trying to bring up the fact that it's a facial challenge, which 04:19
24 study them, Your Honor, is that the ones that the government
25 cites are the cases where the facial challenge is made 04:19
3 longer-developed record.
7 of the cases about facial challenges are cases where the facial
13 And those cases happened longer than the other cases; they
25 Rule 403 to one witness per topic, because otherwise it's 04:21
1 cumulative.
12 deposition.
19 opinion in the case. But I don't think that's why he's being
21 As to -- is it Nathan Frank?
2 not be admissible.
10 time since I looked at this issue, but what I believe is still 04:23
12 stay away from the word "sausage" here. But since a legislator
15 effect, as I read some -- and I think some of the basis for 04:24
5 too. 04:25
24 during the first Gulf War; and that supports his conclusion
1 readiness.
11 it's based on sufficient facts or data. But for the most part,
18 those concerns.
20 objected to, some of the testimony may be admissible for one 04:31
4 purposes of the policy, and they are relying on data from other
6 may be admissible.
13 All right.
16 to --
25 think it's made clear in our papers -- the Witt standard simply 04:33
22 The fact of the matter is, facial challenges are not subject to
24 to the contrary.
7 We agree with that. But that is the purpose for which these
19 indisputable, frankly.
1 going to come in and say, No, they are dispositive, and they
15 Your Honor. Plaintiff wants to come in and say there was no 04:37
24 Congress.
25 THE COURT: Well, you know, you cite Goldman in your 04:37
2 the exact wording the way you used it -- but Goldman was really
5 it beyond that -- on the lack of factual record that was needed 04:38
9 Your Honor.
11 Air Force.
15 said, You know what, I don't need expert testimony to say 04:38
20 here. 04:39
23 Witt standard and you conclude that the government has the
4 somehow applies and that somehow that shifts the burden to the
15 that, Your Honor. The Court does not look at the motivations 04:39
17 constitutional challenge.
19 that animate the statute. And the purposes that animate that
20 statute are revealed by the plain language of the statute. And 04:40
21 this issue is largely off the table for much more basic
9 Even the case the plaintiff cites to, where their two
10 experts testified, MacCoun and Korb, the Abel case, actually 04:41
7 unconstitutional.
10 it.
17 relied upon, or the facts and data that were relied upon
18 consist of Dr. Frank's book and a New York Times article. And
2 rehash that.
11 recast these opinions, and say, No, he's not going to do that;
12 that's not the purpose. But I think a fair and plain reading
1 original report.
3 testified, counsel for LCR asked Dr. Belkin, Hey, Dr. Belkin,
6 Mr. Freeborne, asked Dr. Belkin, What did you do to prepare for
7 your deposition?
8 Spoke to counsel.
10 Privacy. 04:45
22 excluded under Rule 37. The fact that the government asked
14 been briefed.
19 those questions.
22 briefing on this for you and provide you a brief about that.
5 And while people, including her perhaps, use the term 04:48
22 angle.
24 was clear enough. And, again, I would suggest to you that her
25 report was perhaps briefer than some of the others and didn't 04:49
17 Defense.
19 come here, Your Honor -- we aren't calling him to say any legal
4 to. And he did. And those are the facts before you now.
21 about the enactment of the statute after it was passed and how
4 mean, he cites Philips. And we have said over and over, and
5 you have said twice, that Philips is no longer a good law after 04:53
6 Lawrence.
17 it's from an expert who synthesizes many facts and makes these
5 to go out this week. But the Witt standard, that part is done, 04:54
14 sign on the lectern for this trial, I can see. It won't be the
18 Go ahead.
25 does not intend to present any evidence at this trial beyond 04:55
5 Witt standard and whether "Don't Ask, Don't Tell" survives in 04:55
10 and we're not going to produce any evidence, there may be no 04:56
14 government's position.
16 right here, to us, sua sponte. Because once the Witt standard
20 that, then there is no need for a trial and we win. And that's 04:56
22 consideration.
25 MR. GARDNER: Your Honor, may I add just one very 04:56
2 Witt standard.
5 brief the Witt standard, and the government's brief didn't 04:57
9 case, but you didn't address the Witt standard. And I have a
12 the motions.
14 testimony?
4 testimony.
13 doubt it.
19 RAND?
22 videotaped?
5 I've just never had that issue come up before. And 05:00
6 I'm not making light of it. The marshals are very, especially
9 I'm not persuaded that makes him unavailable, then it's just
12 appear.
14 and perhaps we could let Professor MacCoun know that he may get
20 exemption. 05:01
10 documents through TrialDirector and using the E.L.M.O. And for 05:01
13 Director"...
21 Your Honor.
1 morning of.
8 Make sure that you comply with the local rule about
11 of individual persons.
18 case is, it presents legal issues; and I know Your Honor has a
1 argument.
4 want to give a brief opening to set the stage, you can do so.
8 that's fine.
11 to you about the exhibit list and the exhibit notebooks and so
16 in limine.
23 week.
2 (Proceedings concluded.)
4 CERTIFICATE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Behalf [2] - 2:3, 2:10 44:24, 45:4, 45:9, 19:15, 23:13, 27:10, class [1] - 15:3 conflict [1] - 5:6
behalf [4] - 4:7, 9:4, 50:2, 55:23 27:14, 27:15, 27:17, clear [11] - 11:24, confusion [2] - 21:5,
14:7, 32:9 BY [7] - 2:5, 2:5, 2:6, 27:19, 28:1, 28:2, 13:20, 40:23, 40:24, 21:9
belie [1] - 27:25 2:12, 2:13, 2:13, 2:14 28:3, 28:5, 32:8, 40:25, 45:6, 46:4, Congress [18] - 9:4,
belies [1] - 28:14 32:20, 33:13, 33:18, 51:24, 57:16, 57:18, 9:15, 36:20, 36:24,
Belkin [10] - 37:16, C 33:20, 33:25, 34:8, 59:2 37:2, 37:4, 42:6,
48:23, 49:2, 49:3, 34:9, 38:15, 41:1, Cleburne [3] - 41:7, 42:13, 42:20, 42:23,
49:6, 49:13, 49:17, 41:3, 41:5, 41:8, 41:10, 53:18 43:8, 43:16, 43:18,
Cabin [3] - 4:4, 4:13, 41:10, 41:12, 41:13, 43:19, 43:24, 48:5,
49:18, 49:23 CLERK [1] - 4:3
20:4 41:21, 42:3, 42:16, 48:7, 48:9
Belkin's [2] - 48:19, clerk [1] - 61:7
Calendar [1] - 4:3 42:22, 43:12, 45:10, congress [1] - 43:10
52:22 close [1] - 24:22
calendar [1] - 4:15 45:17, 46:23, 47:23, Congress's [1] -
belying [1] - 32:8 closings [1] - 58:1
California [2] - 2:7, 48:14, 50:25, 53:11, 43:2
benefits [1] - 7:22 code [1] - 44:6
4:1 53:19, 54:15 congressional [1] -
Berkeley [2] - 38:5, cohesion [11] - 32:5,
Canada [1] - 39:23 challenged [1] - 48:15
58:16 38:12, 40:3, 42:13,
cannot [4] - 5:11, 53:13 connection [3] -
best [2] - 9:9, 52:8 42:14, 43:3, 43:9,
36:13, 41:23, 42:2 challenges [5] - 13:11, 17:15, 21:15
between [3] - 15:2, 43:13, 46:1
caption [1] - 30:13 33:22, 33:23, 34:7, consensual [1] -
24:6, 50:15 colleague [1] - 49:5
care [3] - 5:9, 6:14, 34:12, 41:22 41:20
beyond [6] - 12:15, colleagues [2] - 4:9,
24:23 challenging [6] - consider [9] - 6:3,
13:15, 13:18, 27:10, 4:13
career [1] - 52:15 19:16, 27:19, 42:6, 16:8, 33:9, 33:10,
44:5, 55:25 Colonel [2] - 20:8,
carefully [1] - 50:17 48:5, 48:6, 48:9 41:8, 42:2, 43:18,
bifurcation [1] - 5:19 20:15
Case [2] - 4:4, 4:12 change [1] - 15:20 comments [3] - 35:3, 48:6, 50:16
Biodiversity [2] -
20:20, 21:3 CASE [1] - 2:4 chaos [2] - 8:3, 37:4, 50:6 consideration [2] -
bit [3] - 33:6, 48:3, case [52] - 7:3, 7:10, 11:15 common [1] - 7:11 42:4, 56:22
59:8 7:17, 9:1, 11:13, Chapter [1] - 43:7 complain [1] - 30:23 considered [13] -
11:14, 12:14, 13:15, chapter [1] - 43:8 33:7, 42:13, 42:23,
bits [1] - 36:1 complete [1] - 4:25
13:16, 16:2, 20:9, characterize [1] - 43:10, 43:16, 43:19,
blow [1] - 60:17 completely [2] -
20:19, 21:7, 22:9, 36:1 46:4, 46:5, 48:16,
book [1] - 47:18 41:14, 59:7
23:18, 24:12, 25:6, characterizes [1] - 49:19, 50:24, 58:6,
Bowser [1] - 41:18 comply [1] - 61:8
26:23, 27:14, 28:17, 34:19 59:2
Bradley [1] - 2:13 compound [1] -
30:13, 31:6, 32:16, Chief [1] - 44:14 considering [2] -
branch [3] - 22:24, 28:11
33:3, 34:15, 35:19, choose [2] - 24:6, 16:13, 29:17
32:2 computers [1] - 60:6
39:4, 41:4, 42:1, 40:24 consist [1] - 47:18
Branch [1] - 2:12 conceive [1] - 9:23
42:18, 44:7, 44:8, chose [1] - 56:7 consists [1] - 7:19
breakdown [1] - 12:8 concern [1] - 32:13
44:12, 45:6, 45:11, Circuit [1] - 46:18 Constitution [1] -
breath [1] - 25:5 concerned [7] - 4:21,
46:4, 46:9, 46:10, circuit [3] - 54:3, 32:9
brief [10] - 43:6, 9:19, 21:23, 32:17,
46:14, 47:4, 47:5, 54:9, 54:11
44:22, 45:12, 50:22, 39:10, 39:14, 61:22 constitutional [13] -
48:23, 51:18, 54:7, Circuit's [1] - 46:3
50:25, 54:1, 57:5, concerns [4] - 13:9, 41:5, 41:12, 42:3,
54:8, 54:11, 54:12,
62:4, 62:7 circuits [1] - 46:20 35:4, 35:6, 39:18 42:16, 45:9, 45:17,
56:6, 57:9, 57:11,
briefed [4] - 50:13, circumstance [1] - conclude [4] - 44:23, 46:7, 46:19, 46:22,
61:18, 62:2
50:14, 53:14, 55:9 49:15 45:3, 45:8, 50:20 46:24, 47:23, 50:24
case's [1] - 47:14
briefer [1] - 51:25 circumstances [3] - concluded [1] - consulted [1] - 10:17
cases [17] - 32:9,
briefing [2] - 50:22, 12:19, 14:14, 23:4 46:19 consulting [1] -
33:13, 33:25, 34:2,
56:4 cite [2] - 43:25, 54:2 conclusion [8] - 58:18
34:7, 34:8, 34:11,
briefly [1] - 48:18 cited [9] - 13:19, 37:18, 37:21, 37:24, contact [3] - 16:18,
34:13, 50:23, 53:18,
briefs [2] - 29:24, 13:20, 14:3, 20:20, 42:21, 42:23, 45:2, 25:25, 26:9
53:19, 53:22, 54:3
41:16 21:2, 27:14, 33:13, 46:16, 52:20 contain [1] - 9:8
categories [1] -
bring [7] - 14:9, 28:3, 41:4, 58:24 conclusions [2] - contains [1] - 15:14
29:15
28:22, 33:20, 42:22, cites [4] - 33:25, 47:14, 53:25 content [1] - 10:24
certain [7] - 6:12,
43:12, 60:11 46:9, 54:4, 54:7 conduct [5] - 24:5, contentions [2] -
6:20, 9:7, 9:15, 48:6,
bringing [1] - 32:9 citing [2] - 34:2, 24:9, 26:4, 30:14, 53:24, 61:14
55:24, 56:19
broad [3] - 7:9, 8:25, 34:11 30:24 context [7] - 13:20,
certainly [6] - 5:23,
11:19 city [1] - 41:9 conducted [1] - 46:7 13:21, 14:2, 43:22,
12:1, 20:24, 21:25,
broad-based [2] - Civil [1] - 2:12 conducting [1] - 45:23, 46:5, 61:19
49:16, 52:18
7:9, 8:25 claim [7] - 14:23, 24:19 continue [3] - 5:3,
cetera [2] - 10:17,
broader [2] - 19:4, 28:18, 39:2, 48:1, confer [4] - 26:7, 19:15, 58:10
60:17
45:14 51:3, 51:4, 51:12 26:10, 26:11, 29:11 continues [2] -
challenge [45] - 7:9,
brought [1] - 19:19 claims [3] - 15:16, conference [3] - 34:21, 54:2
9:2, 12:14, 12:15,
burden [7] - 33:18, 15:18, 15:20 4:16, 7:1, 53:16 continuing [1] - 15:6
contract [2] - 58:7, 41:8, 41:15, 42:5, Daubert [4] - 38:15, 17:11, 24:5, 24:15, 15:15, 15:17, 15:19,
58:18 42:10, 42:16, 43:21, 38:17, 38:20 24:19, 30:10, 30:14, 16:3, 16:11, 16:12,
contractual [2] - 44:12, 44:19, 45:13, days [5] - 4:25, 5:8, 30:18, 30:21, 30:25, 18:20
59:3, 59:21 45:15, 47:23, 47:25, 5:16, 5:17, 24:8 61:6 disclosures [6] -
contradict [1] - 53:7 48:16, 53:11, 54:14, DC [1] - 2:15 describe [1] - 10:19 12:11, 15:3, 15:7,
contrary [1] - 41:24 54:18, 57:8, 61:6 deadlines [1] - 49:25 described [1] - 22:4 16:15, 24:24, 25:9
contrast [1] - 51:17 court [5] - 6:8, 6:9, deal [2] - 9:9, 52:9 deserves [2] - 7:24, discovery [3] -
controlling [1] - 14:9, 27:17, 61:22 dealt [1] - 43:8 52:13 12:12, 24:22, 26:18
54:11 Court's [6] - 4:15, decided [5] - 25:7, designated [2] - discussion [4] -
Cook [3] - 46:3, 54:7 15:19, 29:19, 29:22, 25:10, 25:11, 25:17, 13:17, 14:7 49:11, 57:18, 57:20,
cook [1] - 46:4 31:3, 60:24 42:24 designation [2] - 57:21
core [1] - 24:20 courtroom [4] - decision [6] - 15:19, 13:16, 13:18 disfavored [1] -
correct [7] - 12:8, 57:25, 58:3, 60:4, 16:9, 41:18, 46:1, despite [1] - 58:10 41:12
12:9, 19:23, 21:20, 61:5 46:3, 46:18 detail [2] - 29:21, dismay [1] - 61:24
25:21, 25:22, 26:2 courtroom's [1] - decisis [1] - 41:19 52:1 disparate [2] - 40:9,
corrected [1] - 38:16 60:9 declaration [3] - detailed [1] - 17:1 47:25
correctly [5] - 5:4, covered [6] - 6:10, 17:24, 52:23, 53:6 determination [1] - dispensed [1] -
32:14, 38:5, 55:11, 18:7, 22:15, 40:12, declarations [2] - 44:18 61:21
55:21 52:23, 54:20 17:15, 31:24 determinations [1] - dispositive [2] -
counsel [14] - 4:6, Craig [1] - 17:14 declares [1] - 59:4 43:2 42:25, 43:1
4:22, 4:24, 6:25, crammed [1] - 29:14 defendant [1] - 16:13 determinative [1] - disproportionate [1]
24:18, 30:5, 30:12, credit [1] - 52:21 Defendants [1] - 26:3 - 51:6
31:3, 38:21, 49:3, criminalizing [1] - 2:10 determine [1] - 41:16 disproportionately
49:8, 52:11, 52:20, 41:20 defendants [6] - determined [1] - [1] - 51:15
54:2 criteria [1] - 28:16 12:7, 14:23, 23:16, 46:6 dispute [3] - 42:18,
country [1] - 39:23 criticisms [1] - 38:13 24:16, 26:6, 45:1 developed [1] - 34:3 43:5, 48:24
couple [3] - 6:2, Crittenden [1] - defense [8] - 6:1, developments [1] - disputed [2] - 6:25,
17:12, 35:3 22:25 12:12, 12:17, 13:6, 14:13 33:21
course [6] - 6:19, cross [9] - 10:21, 16:24, 20:12, 21:25, different [7] - 31:22, disputes [1] - 15:2
15:6, 15:21, 33:21, 10:23, 10:24, 10:25, 52:14 32:3, 32:10, 35:4, District [2] - 46:12,
57:23, 58:1 11:7, 11:8, 11:9, Defense [2] - 24:17, 46:20, 59:15, 59:23 46:17
COURT [60] - 4:11, 19:17, 26:20 52:17 differently [1] - 48:7 district [1] - 59:7
4:15, 4:19, 5:12, 5:15, cross-examination defer [1] - 24:7 difficulties [1] - ditch [1] - 49:20
5:22, 7:11, 8:1, 8:14, [1] - 11:9 defers [1] - 43:23 61:17 Division [1] - 2:12
9:6, 10:7, 18:2, 18:9, cross-examine [8] - definitive [1] - 54:24 diligently [1] - 31:1 document [1] - 17:24
18:12, 18:25, 19:8, 10:21, 10:23, 10:24, definitively [1] - Dillard [2] - 60:23, documents [6] - 7:5,
19:14, 19:24, 20:10, 10:25, 11:7, 11:8, 19:12 62:10 11:15, 11:16, 60:10,
20:22, 21:1, 21:12, 19:17, 26:20 degree [1] - 9:8 direct [4] - 10:12, 60:15, 60:17
21:19, 22:13, 22:15, crucial [1] - 11:13 denied [3] - 11:20, 10:18, 10:20, 10:22 doe [1] - 21:11
23:25, 25:20, 25:25, cumulative [10] - 12:3, 14:23 directed [4] - 32:20, Doe [3] - 20:3, 20:15,
27:1, 29:2, 32:12, 12:24, 22:1, 22:5, deny [2] - 17:9, 32:21, 32:22, 33:2 21:4
33:16, 34:4, 34:16, 22:7, 28:25, 32:1, 21:22 Director".. [1] - Doe's [1] - 20:8
35:23, 38:9, 40:12, 32:11, 32:12, 32:18, denying [1] - 27:11 60:13 done [5] - 26:19,
40:17, 40:19, 43:25, 35:1 departed [1] - 41:19 disagree [1] - 30:17 30:10, 55:5, 55:15,
50:4, 52:16, 55:2, cumulativeness [6] - DEPARTMENT [1] - disagrees [2] - 41:2, 62:22
55:13, 55:17, 56:24, 23:24, 27:3, 27:6, 2:11 54:8 doom [1] - 46:22
57:3, 57:20, 57:23, 28:8, 48:16 Department [2] - disappointed [1] - Dorman [1] - 36:25
58:14, 58:17, 58:21, curable [1] - 16:20 24:17, 44:10 8:21 Dorman's [1] - 37:1
58:24, 59:16, 60:2, cutoff [1] - 26:18 depose [6] - 14:24, discerned [1] - 41:16 doubt [1] - 58:13
60:12, 60:18, 60:22, CV [1] - 4:4 16:21, 17:21, 18:24, discharge [4] - down [4] - 15:18,
61:22, 62:22 26:17, 26:21 12:19, 23:5, 32:4, 16:4, 34:4, 55:13
Court [44] - 7:22, D deposition [16] - 37:22 Dr [21] - 43:4, 43:7,
7:23, 8:8, 15:9, 16:8, 15:13, 16:22, 19:3, discharged [2] - 47:3, 47:4, 47:8,
17:20, 18:6, 19:21, 35:8, 35:12, 35:13, 31:21, 32:15 47:11, 47:12, 47:16,
20:13, 20:17, 24:3, Dan [2] - 2:5, 4:12
47:5, 48:5, 49:2, 49:5, discharges [2] - 47:18, 48:4, 48:8,
24:4, 24:7, 24:9, data [6] - 39:11,
49:7, 49:18, 52:25, 31:17, 51:11 48:19, 48:23, 49:2,
24:22, 26:16, 26:24, 40:2, 40:4, 42:25,
53:2, 58:21, 59:1 disclose [2] - 23:23, 49:3, 49:6, 49:13,
27:5, 27:11, 27:14, 47:16, 47:17
depositions [17] - 24:21 49:17, 49:18, 49:23
28:17, 29:5, 30:19, date [2] - 21:14,
13:5, 13:13, 16:24, disclosed [1] - 14:25 dress [1] - 44:6
31:5, 31:14, 41:2, 50:16
17:3, 17:8, 17:10, disclosure [7] - due [1] - 20:18
dues [1] - 20:4 equipment [3] - 60:3, 7:6, 7:14, 7:21, 8:4, 42:3, 42:16, 45:9, 22:16, 57:11, 59:18
during [11] - 13:13, 60:4, 60:23 8:5, 8:7, 8:11, 11:3, 45:16, 46:22, 47:23, finished [2] - 30:25,
14:18, 19:2, 22:24, erroneous [1] - 28:7 11:4, 11:5, 11:11, 53:11, 53:19, 54:15 50:8
24:10, 35:13, 36:24, erroneously [1] - 11:13, 11:18, 11:21, facially [2] - 46:6, finishing [1] - 5:23
37:24, 57:13, 57:25, 45:3 62:11 47:24 first [12] - 6:20, 7:25,
58:3 error [1] - 28:11 exhibits [16] - 6:16, facilities [1] - 60:9 14:20, 16:7, 20:14,
duty [3] - 15:6, especially [5] - 8:2, 6:19, 6:21, 6:23, 6:25, fact [25] - 11:10, 26:22, 37:24, 39:9,
24:23, 49:16 11:14, 12:17, 29:18, 8:3, 8:9, 8:15, 8:17, 16:23, 20:6, 25:15, 47:22, 50:9, 55:15,
59:6 8:19, 9:8, 9:10, 10:1, 27:22, 28:13, 33:20, 57:7
E essentially [1] - 10:8, 11:14, 11:19 39:7, 41:3, 41:10, First [1] - 46:3
49:21 expanded [1] - 44:4 41:22, 41:23, 42:15, fits [1] - 39:3
established [1] - expect [1] - 62:20 43:4, 46:3, 46:20, five [11] - 16:8,
E.L.M.O [2] - 60:10, expedition [1] - 6:17 46:23, 47:12, 49:18,
20:21 16:19, 22:8, 23:3,
60:16 experiences [1] - 49:22, 53:24, 53:25,
et [3] - 4:5, 10:17, 24:7, 26:8, 30:10,
Earle [2] - 2:5, 4:14 14:15 57:17, 61:14 31:20, 32:9, 32:15,
60:17
early [5] - 15:3, 15:6, experiments [1] - fact-finding [1] - 57:7
event [1] - 5:7
16:15, 16:18, 26:1 52:3 41:23 focus [3] - 9:25,
evidence [32] - 7:9,
Eastern [2] - 46:12, expert [28] - 9:13, factors [2] - 16:8, 27:5, 48:3
7:16, 9:3, 11:12, 12:4,
46:17 9:23, 9:24, 10:13, 22:8 focused [3] - 20:16,
12:15, 21:15, 22:20,
effect [5] - 33:10, 11:8, 11:17, 13:11, facts [16] - 7:9, 7:15, 22:18, 44:3
22:24, 23:17, 27:9,
36:15, 36:17, 40:3, 13:16, 13:17, 13:18, 20:2, 27:16, 27:20, focusing [1] - 23:12
28:4, 28:7, 28:23,
58:25 34:18, 35:18, 36:4, 39:11, 41:15, 47:16,
29:10, 33:14, 34:12, follow [2] - 39:22,
efficient [3] - 5:20, 39:7, 42:2, 42:11, 36:6, 41:4, 42:22, 47:17, 49:17, 49:18, 55:10
14:10, 28:22 43:14, 43:16, 45:5, 43:9, 43:12, 43:18, 53:4, 53:5, 54:16, following [4] - 5:2,
effort [1] - 49:20 53:13, 53:19, 54:14, 44:15, 46:11, 46:13, 54:17, 54:18 5:3, 5:10, 42:11
egregious [1] - 26:5 54:16, 55:25, 56:3, 47:14, 48:13, 48:14, factual [4] - 27:18, follows [1] - 31:6
eight [3] - 12:10, 56:7, 56:10 48:23, 54:17, 59:10 28:2, 41:9, 44:5 footnote [1] - 18:7
14:20, 30:13 evidentiary [1] - 8:24 expert's [1] - 35:8 factually [1] - 43:17 Force [1] - 44:11
either [9] - 11:7, exact [3] - 44:2, 44:4, experts [13] - 9:11, fail [1] - 31:3 forces [1] - 40:5
12:10, 13:15, 20:16, 44:19 10:9, 12:1, 34:19, failed [1] - 50:2 foreign [4] - 14:15,
28:2, 36:20, 47:16, exactly [3] - 29:13, 42:8, 42:10, 42:25, failure [3] - 14:20, 42:12, 42:20, 42:23
60:3, 62:19 46:14, 48:13 46:10, 50:7, 54:13, 23:23, 48:6 form [2] - 37:7, 37:9
elected [1] - 30:17 examination [1] - 57:16, 58:2 fair [1] - 48:12 former [11] - 12:18,
element [1] - 23:18 11:9 explain [1] - 52:1 familiar [4] - 24:3, 15:4, 24:25, 25:18,
elicited [1] - 13:23 examine [8] - 10:21, explicitly [1] - 54:8 60:18, 62:5, 62:6 27:4, 27:7, 27:8,
Elizabeth [1] - 51:17 10:23, 10:24, 10:25, expressed [1] - family [1] - 5:10 31:15, 36:21, 44:14,
Embser [2] - 38:23, 11:7, 11:8, 19:17, 37:20 far [2] - 4:21, 29:16 52:16
51:2 26:20 extent [12] - 6:12, Federal [1] - 2:12 former-Chief [1] -
Embser-Herbert [2] - example [13] - 10:2, 6:20, 8:16, 9:8, 11:18, federal [1] - 35:17 44:14
38:23, 51:2 10:12, 22:22, 23:1, 13:23, 14:5, 36:18, Feldman [1] - 52:23 forms [1] - 12:2
emphasis [2] - 27:17, 36:19, 37:17, 37:10, 41:2, 45:3, Feldman's [1] - 53:6 forth [2] - 10:15,
51:20, 52:5 39:22, 41:23, 43:3, 47:22 fellow [2] - 13:7, 62:12
empirical [3] - 42:11, 43:5, 47:15, 60:5 extremely [1] - 8:21 13:25 fortunate [1] - 29:17
43:14, 43:16 examples [2] - extrinsic [1] - 9:3 female [1] - 40:10 forward [1] - 20:7
enactment [5] - 10:4, 31:17, 41:25 fields [1] - 38:6 foundation [1] - 52:9
34:1, 34:14, 53:20, except [1] - 39:23 F Fifth [1] - 2:6 four [9] - 4:25, 5:8,
53:21 exception [1] - 6:7 file [1] - 7:7 5:16, 5:17, 29:12,
end [1] - 48:14 excerpts [1] - 13:10 filed [6] - 21:14, 29:13, 30:1, 30:12,
Engle [4] - 17:14, face [1] - 27:19
exclude [5] - 6:20, 29:24, 31:24, 31:25, 57:7
17:23, 18:8, 18:14 facial [42] - 9:2,
12:6, 12:7, 53:12, 53:15, 58:9 frame [2] - 9:18,
Ensley [1] - 17:14 12:14, 23:13, 27:9,
57:13 final [2] - 54:23, 36:25
entire [1] - 10:5 27:14, 27:15, 27:17,
excluded [4] - 12:16, 54:25 framework [1] - 40:5
entirely [1] - 9:16 27:18, 27:25, 28:2,
22:10, 49:22, 57:17 finally [5] - 12:23, Frank [7] - 10:2,
entitled [2] - 10:18, 28:3, 28:5, 32:8,
exemption [1] - 26:7, 26:12, 26:13, 10:3, 10:10, 35:21,
44:25 32:20, 33:12, 33:18,
59:20 28:12 39:13, 50:10, 50:16
envisioning [1] - 33:20, 33:22, 33:23,
exemptions [1] - findings [4] - 20:5, Frank's [3] - 36:16,
24:5 33:25, 34:7, 34:9,
59:19 46:2, 48:15, 53:25 39:10, 47:18
Equal [5] - 39:1, 34:12, 41:1, 41:3,
exercise [1] - 20:8 fine [4] - 33:6, 60:12, frankly [3] - 29:5,
41:5, 41:7, 41:10,
39:2, 51:3, 51:4, Exhibit [1] - 10:9 62:7, 62:8 42:19, 49:20
51:12 41:11, 41:21, 41:22,
exhibit [17] - 6:24, finish [4] - 5:17, free [1] - 61:14
Freeborne [3] - 2:12, 31:10, 31:13, 31:18, helpful [1] - 47:23 hoped [1] - 55:4 includes [1] - 36:20
4:7, 49:6 33:4, 33:19, 33:24, Herbert [2] - 38:23, host [1] - 42:3 including [3] - 37:22,
FREEBORNE [25] - 34:18, 34:19, 38:25, 51:2 hours [2] - 17:12 51:5, 61:9
4:7, 5:5, 5:13, 5:18, 39:19, 44:23, 44:24, herself [1] - 51:21 house [1] - 24:18 incorrect [2] - 20:1,
7:8, 7:13, 8:12, 8:23, 45:5, 45:7, 45:9, 47:1, hesitant [1] - 37:14 Hunt [1] - 28:17 20:10
10:3, 17:20, 18:23, 49:22, 53:9, 53:10, high [1] - 60:16 indicated [2] - 29:11,
19:4, 19:10, 19:23, 53:17, 54:2, 55:24, highly [3] - 24:12, I 57:1
20:1, 20:18, 20:24, 56:3, 56:7, 56:8, 26:23, 30:8 indisputable [1] -
21:2, 21:17, 40:11, 56:18, 56:19, 58:24 Hillman [4] - 38:19, 42:19
57:15, 57:21, 61:16, government's [9] - 39:14, 40:8, 51:17 ideally [1] - 6:24 individual [8] - 12:3,
62:20, 62:24 6:1, 15:5, 29:7, 29:18, Hillman's [1] - 40:8 identification [5] - 12:4, 28:6, 28:10,
Friday [1] - 61:4 50:13, 53:7, 54:24, 7:21, 8:2, 11:4, 11:6, 28:19, 50:7, 54:16,
himself [1] - 59:4
front [1] - 61:23 56:14, 57:5 25:1 61:11
historian [5] - 36:6,
fruitless [1] - 25:9 governmental [2] - identified [5] - 11:10, individuals [8] -
51:19, 52:2, 52:4
full [1] - 5:21 23:11, 23:15 11:16, 22:8, 25:16, 24:8, 24:21, 25:7,
historical [1] - 41:17
furthering [1] - 51:10 Grant [1] - 4:10 31:8 25:10, 25:16, 27:23,
history [16] - 7:16,
furthers [1] - 33:4 grant [1] - 56:15 identify [2] - 14:20, 32:10, 33:11
7:19, 8:17, 10:4,
grounds [2] - 11:9, 21:7 information [4] -
11:20, 20:11, 42:17,
identifying [1] - 61:9
G 19:25 43:19, 45:8, 46:8,
identities [3] - 16:3,
14:12, 16:18, 25:25,
guess [3] - 17:1, 46:15, 51:20, 52:5, 61:9
19:14, 26:3 53:12, 56:1 16:16, 16:18 informed [1] - 53:1
gambled [1] - 30:16 Gulf [1] - 37:24 ignored [1] - 22:24 inherently [1] - 47:24
hit [1] - 53:8
GARDNER [7] - ignoring [1] - 54:10 initial [4] - 12:10,
holding [1] - 44:4
40:14, 40:18, 40:21, imagine [2] - 58:11,
44:8, 56:25, 60:7,
H holds [1] - 39:21 24:24, 25:9, 48:23
60:20 initiative [1] - 26:8
home [1] - 61:10
60:14 immediately [7] -
homosexual [1] - insofar [4] - 9:19,
Gardner [9] - 2:13, hairs [1] - 37:8 9:13, 15:11, 25:14,
10:4 21:22, 35:6, 37:15
4:9, 40:18, 40:19, half [2] - 30:10, 25:19, 34:1, 34:8
homosexuals [1] - installed [1] - 60:24
54:22, 55:10, 55:21, 47:12 impact [3] - 38:24,
31:8 instead [3] - 45:18,
56:9, 56:13 hamstrung [1] - 40:9, 51:6
Honor [81] - 4:8, 51:9, 56:15
Gates [1] - 4:8 26:19 impacting [1] - 51:8
4:18, 5:5, 5:18, 7:8, instructing [1] - 33:9
gay [3] - 13:8, 13:25, hand [1] - 41:25 impacts [1] - 51:15
8:12, 8:23, 17:20, intelligently [1] -
37:23 happy [1] - 53:3 impediments [1] -
17:22, 18:5, 18:11, 54:18
gays [1] - 14:16 hard [3] - 30:22, 42:4
18:16, 18:23, 19:23, intend [7] - 9:7,
general [5] - 15:2, 39:3, 62:2 implemented [1] -
20:18, 21:10, 22:11, 50:15, 55:25, 56:19,
15:3, 16:14, 16:15, hard-pressed [1] - 53:22
23:20, 24:1, 24:4, 60:7, 60:8, 62:17
46:25 39:3 implicates [1] - 31:8
24:11, 25:13, 25:23, intended [1] - 29:12
generous [2] - 29:6, hardly [1] - 32:10 implying [1] - 27:20
26:2, 26:21, 26:25, intent [4] - 9:15,
30:20 harm [2] - 37:18, important [9] -
27:5, 28:12, 29:1, 15:12, 21:19, 50:23
given [8] - 13:14, 37:25 15:22, 15:23, 21:20,
29:4, 29:23, 30:8, interest [8] - 6:17,
17:1, 26:15, 36:20, harmless [2] - 14:21, 23:11, 23:14, 31:9,
31:2, 31:16, 33:12, 15:24, 15:25, 16:1,
37:8, 39:5, 40:5, 16:12 33:4, 46:12, 55:20
33:24, 34:6, 35:22, 31:10, 31:11, 31:12,
41:25 Hastings [2] - 38:19, impressive [1] -
38:8, 40:11, 40:14, 33:6
glean [1] - 35:8 40:8 40:21, 41:7, 41:14, 38:24 interests [2] - 33:5,
gleaned [1] - 41:15 hear [1] - 57:3 42:9, 42:15, 43:15, improper [1] - 33:22 51:10
Goldman [4] - 43:20, heard [4] - 23:19, 44:9, 45:2, 45:6, in-house [1] - 24:18 interject [1] - 21:8
43:25, 44:1, 44:2 42:20, 55:11, 61:21 45:15, 46:8, 46:20, inability [1] - 26:17 interpretations [1] -
governing [1] - 54:3 hearing [7] - 16:6, 50:3, 50:6, 50:15, inadmissible [2] - 19:11
Government [3] - 18:17, 18:19, 19:2, 50:20, 51:3, 51:17, 34:22, 42:6 interrogatory [2] -
39:25, 54:10, 55:23 20:14, 21:6, 25:6 52:10, 52:19, 52:23, inapplicable [1] - 12:11, 16:15
government [57] - hearings [2] - 36:24, 54:19, 54:23, 55:12, 41:1 interrupt [1] - 61:24
9:16, 9:18, 12:25, 37:7 56:2, 56:12, 56:23, inapposite [1] - interview [1] - 47:20
14:17, 15:11, 15:22, hearsay [4] - 10:17, 56:25, 57:15, 58:8, 41:14 introduce [2] - 7:18,
15:23, 17:7, 18:10, 10:18, 10:20, 11:1 58:20, 58:23, 59:13, inappropriate [3] - 9:3
18:19, 23:8, 23:10, heart's [2] - 10:23, 60:1, 60:8, 60:21, 9:5, 48:15, 49:21 introduced [1] -
23:12, 29:6, 29:10, 10:24 61:16, 61:18, 62:20, inclination [1] - 31:3 31:16
29:12, 29:17, 29:22, heightened [1] - 62:25 inclined [3] - 15:10, intrude [1] - 31:7
29:24, 30:4, 30:11, 43:20 hook [1] - 60:5 16:7, 17:9 intrusion [6] - 15:24,
30:12, 30:13, 30:16, held [2] - 41:21, hope [3] - 52:20, include [1] - 58:1 15:25, 31:10, 31:11,
30:22, 31:6, 31:9, 46:21 59:18, 62:5 included [1] - 36:19 33:2, 33:5
invalidates [1] - 43:11, 43:13, 43:23, law [13] - 22:9, 6:2, 6:5, 6:8, 6:10, materials [1] - 10:16
37:12 44:25, 53:23, 54:25, 27:14, 31:21, 38:5, 6:13, 7:10, 7:12, 9:19, matter [11] - 4:15,
invalidating [1] - 56:15, 62:18 46:2, 51:18, 53:24, 9:21, 12:6, 14:9, 29:7, 4:17, 6:6, 8:18, 36:17,
41:9 judiciary [1] - 43:23 53:25, 54:3, 54:5, 29:9, 29:12, 29:14, 41:3, 41:22, 42:15,
invitation [3] - 56:8, July [2] - 4:17, 62:6 54:9, 54:11, 61:14 29:15, 29:21, 30:1, 54:15, 57:10, 62:10
59:11, 59:15 jump [2] - 9:25, Lawrence [9] - 31:9, 43:6, 50:13, 62:16, mean [13] - 8:19,
involve [2] - 33:13, 11:17 35:2, 41:14, 41:15, 62:21 9:13, 9:20, 11:11,
45:25 June [4] - 4:1, 15:1, 46:1, 46:4, 53:18, limited [3] - 7:4, 11:17, 17:4, 19:19,
involved [1] - 24:18 16:17, 26:1 54:6 34:24, 39:24 36:5, 39:1, 52:12,
irrelevance [1] - jury [3] - 33:9, 61:24 lawsuit [1] - 28:19 limits [1] - 6:5 54:4, 61:23, 62:14
22:19 Justice [2] - 44:14 lawyer [1] - 51:18 line [1] - 33:6 means [3] - 55:23,
irrelevant [10] - JUSTICE [1] - 2:11 lawyers [4] - 16:24, list [16] - 6:24, 7:6, 56:17
12:22, 13:3, 14:1, justified [2] - 14:21, 30:11, 30:13, 61:23 7:14, 7:21, 8:4, 8:7, meantime [1] - 4:20
14:4, 14:8, 14:18, 16:11 lay [11] - 12:6, 12:8, 8:11, 11:3, 11:4, 11:5, Meekins [9] - 17:15,
27:16, 28:6, 28:25, justify [1] - 16:2 13:12, 14:21, 21:22, 11:11, 11:13, 11:21, 17:18, 17:21, 18:4,
49:23 22:2, 22:16, 22:21, 26:12, 62:9, 62:11 18:8, 18:9, 18:17,
issue [39] - 9:9, K 23:3, 30:10, 52:9 listed [3] - 11:2, 18:21, 18:24
15:18, 16:4, 17:16, LCR [3] - 26:7, 12:10 meet [5] - 26:7,
17:17, 17:22, 18:14, 28:13, 49:3 lives [1] - 31:7 26:10, 26:11, 29:11,
19:4, 19:18, 20:14, Kahn [2] - 2:6, 4:14 leading [1] - 53:15 local [3] - 29:22, 50:2
20:16, 20:17, 21:1, keep [3] - 9:25, learned [1] - 53:20 30:3, 61:8 meeting [2] - 31:18,
21:2, 21:10, 21:17, 11:15, 61:13 least [7] - 6:15, 9:19, lodged [1] - 61:6 52:25
22:18, 23:7, 26:25, keeping [2] - 22:17, 22:3, 29:12, 29:13, Log [3] - 4:4, 4:13, meets [1] - 33:17
27:2, 27:9, 27:10, 35:16 29:25, 35:7 20:4 member [4] - 20:4,
33:3, 36:10, 39:12, keeps [2] - 23:12, leave [1] - 14:3 logic [1] - 43:2 21:7, 21:8, 52:14
40:1, 40:7, 45:13, 33:19 lectern [1] - 55:14 logical [1] - 41:17 members [11] - 9:4,
45:21, 48:4, 48:17, kind [2] - 59:11, left [1] - 16:21 logs [1] - 20:7 9:15, 14:17, 20:16,
49:23, 50:1, 50:12, 59:15 legal [6] - 38:11, longer-developed 28:19, 36:21, 36:24,
50:17, 57:8, 58:5, knowing [3] - 13:4, 42:4, 45:2, 52:19, [1] - 34:3 37:4, 40:10, 48:1
59:5, 62:15 13:7, 13:25 61:18, 61:19 look [10] - 19:1, 20:5, membership [1] -
issued [2] - 19:8, knowledge [2] - legislation [2] - 41:13, 44:17, 45:15, 20:21
55:3 15:16, 39:6 36:14, 45:16 46:15, 47:11, 47:16, memorandum [2] -
issues [19] - 4:22, known [2] - 15:16, legislative [16] - 53:11 53:24, 61:13
6:13, 8:25, 14:19, 15:19 7:16, 7:19, 8:17, 9:20, Look [2] - 26:9, men [2] - 32:1, 51:9
18:19, 19:5, 19:7, Korb [8] - 35:2, 35:7, 11:20, 12:16, 22:24, 44:22 mention [1] - 7:13
19:13, 22:16, 39:4, 46:10, 47:8, 48:4, 22:25, 42:17, 43:19, looked [2] - 36:10, mentioned [1] -
48:6, 48:7, 49:19, 48:8, 52:11, 52:13 45:8, 46:8, 46:15, 44:13 48:20
50:25, 52:5, 52:6, Korb's [6] - 47:3, 53:12, 56:1 looking [1] - 46:8 mentions [1] - 54:12
59:25, 61:18, 61:21 47:4, 47:11, 47:12, legislator [2] - 36:12, looks [3] - 41:15, merit [1] - 42:14
IT [1] - 60:24 47:16, 48:3 45:14 42:16, 45:18 merits [6] - 5:19, 6:4,
Item [1] - 4:3 legislator's [2] - Los [1] - 2:7 12:15, 29:7, 30:5,
items [1] - 60:15 L 36:11, 50:11 54:25
itself [4] - 12:16, legislators [2] - M met [1] - 44:24
25:10, 41:1, 45:23 37:10, 50:24 methodology [3] -
lack [3] - 43:2, 44:3,
44:5 legitimate [3] - 38:20, 38:22, 51:23
J 23:11, 23:14, 45:24 MacCoun [6] - 38:4,
language [3] - 44:13, methods [1] - 39:16
length [1] - 5:21 43:4, 43:7, 46:10,
44:18, 45:20 might [4] - 5:20,
58:5, 59:14
laptops [1] - 60:11 lesbian [2] - 14:17, 11:5, 15:4, 22:5
Jamie [1] - 17:14 Maddow [1] - 47:20
large [1] - 37:23 48:1 militaries [4] - 14:15,
January [1] - 48:24 Major [1] - 4:10
largely [3] - 6:8, less [4] - 11:12, 42:12, 42:20, 42:24
John [2] - 20:3, 21:4 manner [1] - 31:8
45:21, 49:23 14:19, 51:19, 59:4 military [16] - 36:21,
joint [11] - 6:23, 7:6, March [1] - 49:12
larger [1] - 50:8 letting [1] - 28:7 37:19, 37:22, 37:25,
7:14, 7:21, 8:4, 8:6, marked [2] - 11:4,
last [7] - 18:17, level [1] - 38:15 38:25, 40:2, 43:22,
8:11, 8:19, 11:13, 11:6
18:19, 22:2, 38:16, Lieutenant [2] - 20:8, 44:6, 46:5, 51:19,
11:21, 62:9 marshals [1] - 59:6
20:15 51:20, 51:21, 52:5,
Josh [1] - 4:9 40:7, 49:20, 55:16 Martin [1] - 17:15
light [5] - 29:7, 52:6, 52:14
Joshua [1] - 2:13 last-ditch [1] - 49:20 Massachusetts [1] -
29:18, 33:7, 56:6, Miller [2] - 2:5, 4:14
Judge [1] - 21:6 late [3] - 16:12, 18:20 2:14
59:6 mind [5] - 9:13, 10:7,
judgment [11] - latest [1] - 30:3 material [2] - 28:25,
likely [1] - 53:1 35:16, 36:25, 61:13
17:16, 20:12, 21:6, latter [1] - 24:8 36:19
limine [24] - 5:25, mischaracterizatio
n [1] - 35:11 40:18, 40:21, 44:8, 8:8, 8:15, 62:11 33:15, 34:25, 36:22, overarching [2] -
mission [1] - 5:6 50:6, 52:18, 55:7, noted [1] - 48:8 37:6, 39:20, 40:7, 8:16, 22:19
misstate [1] - 12:9 55:16, 55:19, 56:25, nothing [5] - 32:4, 41:10, 43:17, 45:1, overruled [2] - 8:18,
mistaken [1] - 25:15 57:15, 57:21, 58:8, 32:7, 33:22, 47:13, 54:21, 56:25, 59:22, 41:18
moment [3] - 10:1, 58:15, 58:20, 58:23, 62:25 60:14 overworked [1] -
22:12, 55:11 59:13, 60:1, 60:7, notice [1] - 15:9 ones [3] - 11:23, 59:7
Monday [1] - 4:1 60:14, 60:20, 61:16, notified [1] - 15:11 33:24 own [2] - 60:5, 60:11
month [1] - 16:16 62:20, 62:24, 62:25 notion [2] - 42:5, oOo [1] - 4:2
moral [1] - 14:15 multiple [1] - 41:25 46:11 open [1] - 14:16 P
morale [1] - 32:5 must [9] - 8:19, Number [2] - 4:3, 4:4 opening [6] - 61:12,
morning [1] - 61:1 15:22, 15:23, 15:24, number [7] - 6:6, 61:15, 61:20, 62:4,
15:25, 31:9, 31:10, 62:7 P.M [1] - 4:1
most [8] - 6:10, 9:10, 6:25, 8:3, 29:9, 32:13,
31:11, 33:1 37:21, 37:23 openings [1] - 58:1 Page [2] - 3:2, 47:15
9:16, 29:8, 36:8,
numbers [5] - 15:1, operating [1] - 8:8 pages [1] - 57:8
37:16, 37:19, 39:11
paid [1] - 20:3
mostly [2] - 4:23, N 16:19, 26:1, 61:10 opining [1] - 36:18
numerous [1] - opinion [29] - 12:2, paper [1] - 6:17
62:22
29:15 13:4, 13:24, 14:6, papers [14] - 18:2,
motion [47] - 6:15,
name [6] - 18:12, 20:25, 24:2, 26:25,
6:16, 6:20, 7:10, 8:16, NW [1] - 2:14 35:10, 35:14, 35:17,
21:7, 25:1, 37:1, 37:3, 27:15, 30:6, 32:14,
9:21, 10:1, 11:17, 35:19, 36:4, 36:9,
38:4 32:25, 35:5, 40:25,
11:18, 11:20, 12:3,
named [1] - 21:8 O 36:16, 36:23, 37:7,
44:1, 52:24, 53:7,
12:6, 12:13, 13:11, 37:9, 37:11, 38:2,
names [6] - 14:25, 53:15
13:12, 14:5, 14:9, 39:21, 39:24, 43:9,
16:19, 25:23, 26:8, obey [1] - 59:10 parameters [1] - 39:4
17:9, 17:16, 18:2, 47:3, 47:4, 47:5,
26:13, 26:15 objected [1] - 39:20 Parker [3] - 2:13, 4:9,
18:3, 18:5, 18:23, 47:16, 48:20, 48:21,
narrowly [1] - 44:3 objection [7] - 8:16, 40:17
19:19, 19:20, 20:12, 49:4, 49:14, 49:21,
Nathan [1] - 35:21 8:18, 9:14, 11:19, 52:20 part [9] - 6:13, 15:18,
21:16, 21:22, 22:4,
Nathaniel [2] - 35:22, 17:25, 22:19, 61:25 opinions [11] - 18:17, 28:8, 31:25,
23:15, 25:2, 27:12,
35:23 objectionable [1] - 35:25, 37:13, 38:10, 39:11, 50:12, 50:24,
27:15, 34:17, 35:6,
National [1] - 35:23 9:17 38:11, 38:13, 38:22, 55:5
35:9, 37:20, 43:6,
nature [1] - 9:2 objections [8] - 8:22, 39:19, 48:11, 48:25, participation [1] -
48:9, 48:20, 50:13,
necessarily [3] - 8:24, 8:25, 12:4, 50:1 28:19
53:6, 53:23, 54:24,
10:23, 35:5, 37:12 37:16, 37:19, 38:2, opportunity [6] - particular [3] -
55:4, 57:13, 62:18
necessary [7] - 6:15, 47:1 30:14, 30:15, 30:24, 51:20, 52:2, 61:17
motions [24] - 5:25,
14:9, 15:25, 16:5, objective [2] - 23:11, 50:1, 56:3, 57:4 particularly [5] -
6:2, 6:5, 6:7, 6:10,
31:11, 33:5, 43:21 23:15 opposite [1] - 48:13 18:6, 26:22, 43:4,
6:13, 7:12, 9:7, 9:19,
11:25, 12:5, 13:11, neck [1] - 22:11 obligation [2] - 59:3, opposition [7] - 43:22, 52:4
23:16, 29:7, 29:9, need [10] - 8:25, 59:22 15:14, 21:16, 25:2, parties [7] - 7:24,
29:12, 29:13, 29:14, 17:25, 28:14, 43:17, obviously [8] - 7:14, 29:20, 52:24, 53:6, 8:15, 15:2, 15:9, 18:3,
29:15, 29:21, 30:1, 44:15, 45:10, 56:11, 21:19, 24:3, 24:17, 53:23 61:12, 61:21
57:12, 62:15, 62:21 56:13, 56:20, 57:10 24:25, 26:16, 57:16, order [16] - 6:2, 6:5, parts [2] - 35:25,
motivation [1] - needed [3] - 17:3, 61:17 14:20, 17:5, 18:18, 50:17
36:13 28:23, 44:5 occupation [1] - 19:1, 19:8, 22:3, party [4] - 10:16,
motivations [2] - 9:3, never [2] - 18:24, 59:19 23:25, 32:19, 49:25, 20:16, 27:19, 57:17
45:15 59:5 OF [1] - 2:11 56:3, 56:18, 61:19, party's [1] - 15:16
move [4] - 12:5, New [2] - 46:12, offer [4] - 42:8, 62:21 passed [2] - 30:18,
21:20, 34:17, 57:11 47:18 48:25, 49:4, 49:20 ordinance [2] - 41:9, 53:21
moved [1] - 11:11 new [1] - 49:17 offered [3] - 7:18, 41:20 past [2] - 29:19,
MR [64] - 4:7, 4:12, next [5] - 25:5, 30:15, 43:7 organization [2] - 31:19
4:18, 5:5, 5:13, 5:18, 25:24, 26:3, 49:5, offering [3] - 49:13, 14:8, 52:15 Patrick [1] - 4:10
7:8, 7:13, 8:12, 8:23, 57:10 51:11, 51:12 organizational [1] - pattern [1] - 30:3
10:3, 17:20, 17:22, Nicholson [2] - offers [1] - 38:11 13:2 paul [1] - 2:12
18:5, 18:10, 18:15, 20:15, 21:4 once [7] - 52:9, 53:8, original [1] - 49:1 Paul [1] - 4:7
18:23, 19:4, 19:10, night [1] - 49:2 54:10, 54:14, 56:12, otherwise [5] - 5:2, people [9] - 25:12,
19:23, 20:1, 20:18, non-30(b)(6 [1] - 56:16, 56:18 12:11, 22:6, 34:25, 26:17, 26:21, 31:20,
20:24, 21:2, 21:17, 23:21 one [32] - 5:1, 5:23, 47:21 51:5, 53:20, 61:3
22:11, 22:14, 23:20, nonjury [2] - 5:16, 6:7, 7:7, 7:10, 8:10, ought [2] - 6:14, 52:8 per [2] - 34:25, 48:22
24:1, 25:22, 26:2, 11:22 10:7, 12:9, 14:20, outside [3] - 7:16, percent [1] - 51:11
27:2, 29:4, 33:12, normally [1] - 11:2 15:1, 16:23, 18:18, 57:10, 58:3 perhaps [8] - 4:23,
33:19, 34:5, 35:22, note [2] - 5:13, 5:18 21:5, 22:4, 27:17, overall [2] - 27:10, 6:7, 36:17, 36:22,
38:8, 40:11, 40:14, notebooks [4] - 8:7, 28:12, 28:16, 32:2, 39:5 51:5, 51:25, 52:7,
59:14 38:24, 40:1, 40:4, prevent [1] - 23:17 60:14 43:10, 58:14, 58:15,
period [1] - 41:23 44:16, 44:17, 51:9, primary [2] - 35:10, Protection [5] - 39:1, 58:19
permitting [1] - 51:13, 51:15 35:14 39:2, 51:3, 51:4, rank [2] - 32:2, 32:3
28:21 portions [2] - 50:9, principle [1] - 42:2 51:12 rather [3] - 13:2,
person [4] - 12:22, 60:17 principles [1] - 39:16 prove [3] - 23:9, 17:6, 46:13
13:9, 59:1, 60:24 position [6] - 15:5, privacy [10] - 13:9, 23:13, 31:13 rational [2] - 34:21,
personal [8] - 13:1, 30:17, 44:22, 53:17, 45:25, 48:21, 48:25, provide [2] - 42:10, 47:9
13:3, 13:4, 13:9, 56:14, 58:17 49:4, 49:10, 49:11, 50:22 rationale [1] - 42:13
13:23, 14:6, 31:7, possible [1] - 58:12 49:14, 49:19, 53:2 provided [3] - 13:10, reached [2] - 42:21,
61:9 possibly [1] - 53:13 private [2] - 31:7, 15:1, 26:7 43:11
persons [3] - 15:3, post [1] - 46:4 41:20 Public [1] - 38:6 read [4] - 6:3, 36:15,
32:14, 61:11 post-Lawrence [1] - privilege [8] - 9:20, purports [1] - 47:12 56:17, 61:13
persuaded [3] - 46:4 9:21, 36:11, 36:14, purpose [4] - 31:16, readiness [3] -
21:24, 32:12, 59:9 postenactment [1] - 45:14, 50:11, 50:18, 39:21, 42:7, 48:12 37:19, 38:1, 40:3
persuasive [1] - 22:7 14:13 50:21 purposes [10] - 7:22, reading [3] - 10:8,
Philips [3] - 45:22, potential [1] - 50:10 privileged [2] - 22:17, 23:6, 32:5, 13:10, 48:12
54:4, 54:5 PowerPoints [1] - 36:17, 37:10 33:10, 40:4, 45:18, ready [1] - 60:25
phone [3] - 15:1, 60:6 probative [1] - 47:2 45:19, 51:13, 62:14 real [1] - 38:18
16:19, 26:1 practical [1] - 8:18 problem [3] - 5:22, pursuant [1] - 31:21 really [18] - 7:2, 7:3,
pick [2] - 5:15, 5:17 practice [3] - 33:15, 21:13, 24:20 pursue [1] - 29:12 9:24, 9:25, 13:19,
pieces [1] - 12:4 53:22, 61:23 problems [1] - 5:2 push [1] - 5:20 13:21, 14:9, 23:16,
place [1] - 5:14 prayer [2] - 50:23, proceed [2] - 6:23, put [4] - 15:9, 53:5, 30:5, 35:11, 38:10,
plain [5] - 44:13, 50:25 21:8 55:13, 60:15 38:19, 44:2, 51:9,
44:17, 45:20, 48:12, pre [1] - 52:25 proceedings [1] - putting [1] - 23:17 54:15, 55:20, 57:6
53:17 pre-deposition [1] - 37:23 realtime [2] - 60:8,
plaintiff [31] - 4:13, 52:25 Proceedings........... Q 60:11
15:8, 16:4, 16:13, preclude [1] - 18:21 ............................ [1] - reason [2] - 16:5,
16:23, 16:25, 21:15, precluded [1] - 13:7 3:3 35:15
22:22, 23:9, 23:13, qualifications [2] - reasonable [1] -
prefer [2] - 23:25, process [1] - 22:25
23:17, 24:14, 24:21, 10:15, 38:24 30:20
40:15 produce [1] - 56:10
25:9, 26:6, 27:13, qualified [2] - 39:8, reasoning [3] - 37:9,
preferable [1] - product [1] - 39:15
33:17, 39:17, 41:4, 54:13 37:13, 37:15
58:25 profession [1] -
41:23, 42:18, 42:22, qualify [1] - 52:8 reasons [4] - 36:13,
prejudice [2] - 12:3, 58:16
43:5, 43:11, 43:15, questioned [1] - 45:22, 45:24, 55:8
16:20 Professor [15] - 10:2,
44:21, 45:1, 45:11, 36:13 rebuttal [1] - 49:21
prejudiced [1] - 10:10, 35:7, 36:16,
46:9, 48:10, 49:25 questions [4] - recalling [1] - 5:4
26:17 38:19, 38:23, 39:10,
Plaintiff [1] - 2:3 13:13, 49:23, 50:19, recast [1] - 48:11
prejudicial [3] - 39:13, 39:14, 50:10,
plaintiff's [6] - 22:20, 53:1
24:12, 26:23, 30:9 50:16, 52:11, 52:13, receive [1] - 59:11
26:4, 34:19, 38:21, 52:22, 59:14 quick [1] - 57:1
prepare [1] - 49:6 receiving [1] - 28:9
42:10, 42:25 professor [5] - 10:3, quickly [3] - 35:3,
prepared [1] - 7:6 recent [1] - 29:8
plan [2] - 5:14, 5:24 38:5, 40:8, 51:18, 47:3, 48:22
preparing [1] - 24:13 recently [1] - 58:11
point [20] - 15:11, 58:16 quite [1] - 44:3
present [7] - 16:24, recognized [2] -
17:1, 21:5, 25:24, proffer [3] - 15:14, quote [3] - 28:17,
24:16, 27:23, 29:10, 37:3, 52:14
26:3, 26:13, 26:22, 17:1, 22:2 48:19, 49:16
55:25, 56:3, 56:7 record [8] - 12:16,
28:12, 30:1, 30:2, proffering [1] - 22:23 quotes [1] - 14:3
presentation [1] - 22:17, 28:24, 34:3,
34:14, 39:1, 42:25, 33:14 proffers [1] - 22:3 34:10, 36:7, 37:15,
45:2, 45:11, 48:18, presented [2] - 27:8, Programs [1] - 2:12 R 44:5
51:2, 52:9, 55:19, 54:18 prohibits [1] - 61:19 recycling [4] - 6:17,
57:1 presenting [4] - prong [1] - 47:22 6:18, 62:14
Rachael [1] - 47:20
pointed [2] - 16:23, 24:12, 27:4, 27:9, pronouncing [1] - redacting [1] - 61:9
raise [6] - 6:13,
21:5 45:5 38:4 refer [1] - 18:6
19:24, 19:25, 20:12,
points [4] - 15:15, presents [3] - 54:16, pronunciation [1] - referred [1] - 18:3
21:10, 48:18
39:25, 40:15, 53:16 61:16, 61:18 38:18 refuse [2] - 20:6
raised [17] - 9:6,
policies [1] - 51:8 pressed [4] - 26:6, proof [5] - 17:5, 42:9, refutes [1] - 46:11
18:19, 19:20, 19:21,
Policy [1] - 38:6 26:11, 26:14, 39:3 44:24, 44:25, 58:9 regard [2] - 25:3,
19:25, 20:13, 20:17,
policy [22] - 12:19, presumably [3] - proper [1] - 9:2 25:7
20:23, 20:24, 20:25,
15:23, 23:5, 23:10, 26:14, 28:24, 49:17 properly [1] - 9:6 regarding [8] - 9:14,
21:17, 21:24, 35:5,
32:6, 32:22, 33:3, pretrial [7] - 4:16, proposed [2] - 20:5, 12:18, 12:21, 14:12,
39:4, 40:7, 40:15
33:4, 33:11, 34:20, 7:1, 26:7, 26:10, 53:24 23:4, 27:24, 37:17,
raising [1] - 25:8
35:10, 37:18, 37:25, 48:22, 49:25, 53:23 proprietary [1] - 38:12
RAND [5] - 43:7,
regardless [2] - 48:23, 49:1, 49:13, room [1] - 2:15 seeking [3] - 12:7, similarly [1] - 52:11
40:23, 46:1 49:16, 51:25, 52:22, routinely [1] - 43:23 27:22, 34:18 simple [1] - 20:7
regards [1] - 52:22 53:3 rule [5] - 11:22, seeks [2] - 14:5, simply [6] - 24:23,
regularly [1] - 61:23 reported [1] - 37:4 11:24, 14:11, 30:3, 14:17 27:5, 28:11, 40:25,
regulation [3] - representative [3] - 61:8 seem [5] - 17:11, 41:6, 48:15
44:10, 44:13, 44:18 13:3, 31:17, 57:17 Rule [8] - 14:22, 20:7, 27:24, 28:20, SIMPSON [8] - 18:5,
regurgitation [1] - Representative [2] - 15:15, 22:9, 34:25, 50:23 22:11, 22:14, 23:20,
47:13 36:25, 37:1 39:6, 49:15, 49:22, seldom [1] - 34:9 24:1, 25:22, 26:2,
rehash [1] - 48:2 represents [1] - 49:24 sending [1] - 20:13 27:2
Rehnquist [2] - 12:14 ruled [9] - 17:20, sense [3] - 44:17, Simpson [3] - 2:14,
44:14 Republicans [3] - 18:17, 18:19, 18:23, 51:6, 51:7 4:9, 40:22
relate [1] - 9:10 4:4, 4:13, 20:4 18:24, 19:5, 19:6, separate [1] - 62:3 single [2] - 8:5, 8:9
related [3] - 21:10, request [2] - 17:21, 19:12, 27:11 series [1] - 30:3 situation [1] - 52:2
48:21, 51:16 18:24 Rules [1] - 34:22 served [2] - 58:8, six [12] - 12:18,
relates [1] - 21:3 requested [1] - 28:18 rules [5] - 29:8, 58:11 12:23, 23:2, 23:3,
relation [2] - 25:8, requesting [1] - 56:4 29:19, 29:22, 35:17 service [6] - 10:4, 24:8, 27:4, 27:23,
27:7 required [5] - 8:6, ruling [9] - 14:17, 14:16, 40:10, 48:1, 28:9, 28:11, 31:20,
relationship [2] - 21:7, 28:20, 28:23, 20:13, 20:23, 54:24, 52:13, 58:9 32:10, 32:15
13:8, 14:1 39:5 54:25, 55:3, 55:4, servicemember [2] - slightly [1] - 16:18
relatively [2] - 17:2, requirement [2] - 62:15, 62:17 13:7, 13:25 slow [2] - 34:4, 55:13
32:15 39:9, 39:15 Ryan [2] - 2:13, 4:9 servicemembers [8] slowly [1] - 55:19
relevance [3] - 8:6, requires [2] - 15:15, - 12:18, 15:4, 24:25, smoothly [1] - 60:25
23:6, 47:1 28:18 S 25:18, 27:4, 27:7, so.. [1] - 59:18
relevant [8] - 7:17, research [6] - 10:14, 27:8, 31:15 social [3] - 38:12,
16:6, 22:21, 32:19, 10:16, 10:19, 14:12, servicemen [1] - 52:1, 61:10
sake [1] - 6:16
32:24, 34:23, 42:24, 59:8, 59:13 37:23 sociologist [3] -
Salerno [1] - 46:23
46:11 resisted [1] - 26:10 serving [1] - 38:25 38:8, 38:9, 51:14
satisfied [1] - 39:9
reliability [2] - 47:24, resolve [1] - 41:11 set [8] - 4:17, 8:7, software [1] - 60:15
sausage [1] - 36:12
48:4 resolved [3] - 9:1, 8:9, 8:19, 15:22, 61:2, solely [2] - 32:21,
saw [3] - 21:13,
reliable [2] - 34:23, 19:2, 45:22 62:4, 62:6 32:22
29:20, 31:24
39:16 respect [8] - 6:16, seven [5] - 16:24, someone [1] - 13:17
10:1, 17:18, 17:23, schedule [3] - 17:5, 24:15, 30:11, 34:19,
relied [5] - 10:15, sometimes [2] -
20:18, 34:17, 45:13, 17:7, 48:22 35:2
10:19, 11:8, 47:17 13:19, 13:20
51:2 scheduled [2] - 5:6, several [3] - 31:19,
relief [1] - 28:18 son [1] - 5:7
respects [1] - 6:3 20:14 44:1, 50:6
relies [1] - 47:19 sorry [6] - 18:13,
response [4] - 29:24, scheduling [3] - sex [1] - 41:20
relieved [1] - 38:17 18:25, 19:24, 25:20,
30:1, 30:2, 56:7 4:24, 5:2, 5:6 sexual [1] - 45:25
reluctant [1] - 59:17 34:5, 40:19
responses [2] - Schiavelli [1] - 21:6
rely [6] - 12:1, 24:24, shifts [1] - 45:4 sort [3] - 36:16,
12:11, 16:15 school [2] - 50:23,
25:7, 25:10, 25:17, short [5] - 6:24, 17:2, 48:10, 59:23
responsible [1] - 50:25
52:4 32:16, 61:12, 61:14 sorts [1] - 43:11
57:24 School [1] - 38:6
relying [4] - 28:13, shorthand [1] - sources [1] - 10:16
restrictions [1] - scientific [2] - 43:21, 14:14
40:2, 40:4, 45:7 specialized [1] - 39:6
15:23 52:3 shortly [1] - 20:14
remain [2] - 46:2, specifically [1] -
return [2] - 8:14, scientist [1] - 52:2
58:3 show [12] - 23:5, 32:3
62:12 Scott [2] - 2:14, 4:9 31:17, 31:25, 33:16,
remember [6] - 10:8, specified [1] - 21:14
revealed [1] - 45:20 screen [1] - 60:16 33:17, 34:10, 43:2,
19:22, 41:7, 44:1, specifies [1] - 31:6
44:3, 57:7 reveals [3] - 37:15, scrutiny [1] - 43:20 49:25, 51:13, 55:23, spent [1] - 57:7
remind [1] - 56:2 46:23, 48:13 second [2] - 12:13, 56:18, 56:19 splitting [1] - 37:8
reversed [1] - 46:18 39:15 showing [4] - 32:22,
repeat [3] - 24:2, sponte [3] - 19:22,
30:6, 40:22 review [2] - 15:10, Second [1] - 46:18 32:24, 33:2, 33:18 20:13, 56:16
repeated [1] - 29:19 40:24 Secretary [2] - 4:8, side [11] - 5:1, 7:18, squarely [1] - 20:25
revised [5] - 48:19, 52:16 7:20, 8:13, 11:7,
repeatedly [3] - stage [2] - 62:4, 62:6
27:13, 48:4, 48:8 48:20, 49:13, 50:1, section [1] - 47:19 24:16, 57:24, 60:3, stand [3] - 9:24,
repetitive [1] - 36:3 52:22 security [1] - 61:10 60:19, 61:25, 62:19 57:19, 57:22
reply [4] - 18:6, rid [2] - 37:18, 37:25 see [9] - 7:21, 7:22, sides [4] - 12:9, standard [27] -
29:23, 43:6, 53:7 riding [1] - 59:23 9:20, 29:23, 39:3, 22:13, 55:17, 57:4 15:10, 15:20, 15:21,
report [17] - 10:10, rights [1] - 31:8 47:9, 51:10, 55:14, sign [1] - 55:14 16:7, 22:18, 31:4,
rise [1] - 38:15 61:17 significantly [3] -
22:25, 36:19, 37:6, 31:5, 31:6, 31:14,
43:7, 43:10, 47:11, Riverside [1] - 4:1 seek [3] - 9:2, 14:6, 15:24, 31:10, 33:4 31:18, 40:24, 40:25,
47:13, 48:13, 48:19, Robert [1] - 38:4 42:8 similar [1] - 60:20 44:23, 55:1, 55:2,
55:5, 55:6, 55:12, subjects [2] - 7:10, 9:6, 10:7, 18:2, 18:9, 16:17, 16:19, 17:6,
T
55:22, 56:5, 56:9, 51:16 18:12, 18:25, 19:8, 24:6, 24:8, 24:10,
56:16, 57:2, 57:4, submit [4] - 24:4, 19:14, 19:24, 20:10, 24:13, 26:20, 26:22,
57:5, 57:6, 57:9 24:11, 26:21, 29:1 table [2] - 30:12, 20:22, 21:1, 21:12, 28:22, 31:14, 38:16,
standard's [1] - 56:6 submits [1] - 49:13 45:21 21:19, 22:13, 22:15, 41:16, 45:11, 52:8,
standing [18] - 5:19, submitted [5] - task [1] - 38:12 23:25, 25:20, 25:25, 55:14, 55:25, 56:11,
6:2, 6:5, 17:16, 18:18, 17:15, 43:8, 48:23, tech [1] - 60:16 27:1, 29:2, 32:12, 56:13, 56:20, 58:9,
19:5, 19:8, 19:9, 52:24, 62:9 telephone [1] - 61:10 33:16, 34:4, 34:16, 59:18, 61:4, 61:7,
19:12, 19:15, 19:16, subparts [1] - 29:16 tend [1] - 58:12 35:23, 38:9, 40:12, 61:22, 61:24
19:20, 19:21, 20:8, subpoena [5] - 58:9, tension [1] - 45:25 40:17, 40:19, 43:25, Trial [1] - 60:12
20:17, 28:13, 28:16, 58:11, 58:12, 59:11 tentative [2] - 20:13, 50:4, 52:16, 55:2, TrialDirector [3] -
61:19 substantially [2] - 20:22 55:13, 55:17, 56:24, 60:7, 60:10, 60:14
stare [1] - 41:19 14:21, 16:11 term [2] - 14:15, 51:5 57:3, 57:20, 57:23, trials [1] - 34:12
start [3] - 4:19, 4:21, substantiate [1] - terms [9] - 16:14, 58:14, 58:17, 58:21, tried [1] - 33:8
24:6 20:8 16:16, 17:5, 33:10, 58:24, 59:16, 60:2, trier [1] - 39:7
started [1] - 30:5 succeeding [1] - 41:9, 53:20, 58:7, 60:12, 60:18, 60:22, trip [1] - 5:6
state [4] - 4:6, 35:9, 33:18 58:18, 59:3 61:22, 62:22 troop [1] - 32:5
35:18, 37:11 suffice [1] - 15:5 test [1] - 43:20 themselves [1] - troubling [1] - 36:8
statement [5] - 15:2, sufficient [2] - 25:4, testified [3] - 46:10, 31:1 true [6] - 25:13,
20:2, 61:13, 61:15, 39:11 49:3, 49:18 theory [2] - 10:5, 29:18, 38:15, 43:14,
61:20 suggest [3] - 27:5, testify [19] - 10:3, 10:6 43:17, 59:1
statements [2] - 30:9, 51:24 10:13, 12:18, 13:22, therefore [2] - 42:12, try [2] - 11:22, 26:23
36:23, 61:20 suggesting [1] - 15:4, 16:9, 17:6, 23:2, 53:13 trying [10] - 11:15,
STATES [1] - 2:11 46:14 23:4, 35:15, 35:20, thinking [2] - 10:11, 23:9, 26:21, 33:20,
States [4] - 4:5, 4:8, Suite [1] - 2:7 36:4, 36:7, 37:13, 24:9 34:6, 36:11, 44:1,
30:9, 39:22 sully [1] - 28:24 37:14, 52:6, 58:7, third [1] - 10:16 44:3, 53:9, 53:10
states [1] - 23:10 summary [8] - 17:16, 58:18, 58:25 third-party [1] - turning [1] - 30:5
stature [1] - 52:13 20:12, 21:6, 44:25, testifying [6] - 10:12, 10:16 twice [1] - 54:5
statute [21] - 7:16, 53:23, 54:24, 56:15, 18:22, 40:9, 51:14, three [12] - 7:11, two [14] - 5:12, 5:23,
12:15, 12:22, 27:19, 62:18 51:18, 51:19 12:25, 17:12, 17:14, 11:25, 12:5, 13:11,
27:20, 27:24, 28:5, supervisors [1] - testimony [75] - 23:15, 24:16, 29:14, 16:21, 17:12, 24:15,
28:10, 28:15, 33:14, 32:4 4:25, 9:10, 9:13, 9:14, 29:15, 29:16, 29:21, 27:6, 38:6, 38:7,
34:1, 34:15, 41:6, supplement [3] - 9:17, 12:7, 12:17, 29:23, 49:12 43:17, 46:9, 54:12
45:7, 45:19, 45:20, 15:6, 49:16, 50:21 12:21, 12:23, 13:1, throughout [2] - typed [1] - 35:23
46:8, 46:16, 53:20, supplemental [4] - 13:2, 13:6, 13:14, 53:14, 53:16
14:5, 14:6, 15:15, ties [1] - 27:8
53:21 44:21, 45:12, 54:1, U
stay [3] - 36:12, 57:8, 56:4 16:5, 16:14, 17:2, timing [2] - 21:1,
57:25 supplementing [1] - 21:25, 22:4, 22:7, 21:2
step [1] - 41:10 22:10, 23:6, 24:7, today [7] - 20:3, UC [1] - 58:16
53:3
stick [1] - 22:11 24:24, 25:18, 27:4, 30:11, 31:18, 34:21, ultimate [1] - 35:18
support [3] - 41:5,
still [5] - 8:6, 8:25, 27:8, 27:23, 28:14, 55:4, 56:18, 58:10 ultimately [4] -
42:11, 51:12
16:21, 20:6, 36:10 28:20, 28:22, 31:15, tomorrow [1] - 59:18 40:24, 42:21, 42:24,
supports [1] - 37:24
stipulating [1] - 8:20 32:16, 32:17, 32:19, took [3] - 24:23, 46:17
supposed [1] - 6:22
stood [1] - 37:1 32:20, 33:1, 33:7, 26:8, 44:22 unavailable [4] -
supposedly [1] -
stories [4] - 27:23, 34:20, 34:22, 35:8, topic [1] - 34:25 58:6, 59:2, 59:4, 59:9
51:10
28:6, 28:10, 31:22 36:20, 36:22, 37:7, touched [1] - 45:14 unclear [1] - 19:11
Supreme [4] - 28:17,
straight [1] - 11:15 37:17, 39:3, 39:15, traditional [1] - 52:4 unconstitutional [7]
41:8, 43:21, 44:12
39:20, 40:5, 40:8, trained [1] - 36:6 - 27:21, 31:21, 32:23,
Street [1] - 2:6 surprise [1] - 16:20
41:4, 41:9, 42:4, 42:6, transcript [2] - 33:17, 35:10, 41:21,
strike [1] - 18:24 survives [1] - 56:5
42:8, 42:20, 42:21, 13:10, 35:11 47:7
struck [1] - 48:21 susceptible [1] -
42:22, 43:11, 43:12, transmit [1] - 60:9 uncontroverted [1] -
studies [1] - 43:21 19:10
44:15, 46:11, 46:13, treated [1] - 30:23 20:2
study [1] - 33:24 suspect [1] - 47:24
47:21, 50:9, 50:11, treatment [1] - 48:1 under [17] - 8:8,
sua [3] - 19:22, suspended [1] -
50:17, 51:21, 57:14, 12:19, 14:21, 22:9,
20:13, 56:16 37:22 triable [3] - 19:5,
58:2, 58:4 34:22, 34:24, 35:16,
subconclusions [1] synthesizes [1] - 19:7, 19:12
Texas [1] - 41:19 39:6, 39:15, 43:20,
- 37:22 54:17 trial [44] - 4:17, 4:19,
text [1] - 46:15 4:21, 4:24, 5:16, 6:8, 46:23, 47:1, 47:22,
subject [4] - 6:6,
THE [61] - 4:3, 4:11, 6:9, 6:14, 6:19, 7:25, 48:17, 49:22, 58:6
13:24, 41:22, 50:8
4:15, 4:19, 5:12, 5:15, 11:15, 11:22, 13:22, underlies [1] - 38:22
subjective [2] - 9:3,
5:22, 7:11, 8:1, 8:14, 14:9, 14:18, 14:24, undermined [1] -
9:15
PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
None None
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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
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.
1
Defendants have violated the Court's Standing Order
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MINUTE ORDER of July 1, 2010
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."
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.
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."
2
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.
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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.
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MINUTE ORDER of July 1, 2010
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 cross-
examination. 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.
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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1
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3
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6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP
non-profit corporation, ) (Ex)
12 )
Plaintiff, ) [Motion filed on March 29,
13 ) 2010]
v. )
14 ) ORDER DENYING DEFENDANTS'
UNITED STATES OF AMERICA ) MOTION FOR SUMMARY JUDGMENT
15 and ROBERT M. GATES, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
________________________ )
18
19 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. Defendants now move for entry of summary
4 judgment.
5
6 I. BACKGROUND
7 The Court's May 27, 2010 Order recites the statutory
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
1
26 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.
2
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP (Ex)
non-profit corporation, )
12 ) AMENDED & FINAL
Plaintiff, ) MEMORANDUM OPINION
13 )
v. ) [Filed concurrently with Findings of
14 ) Fact & Conclusions of Law]
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
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1 I. PROCEEDINGS
2 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 II. STANDING
9 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 3
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).
2
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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
3
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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
4
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1 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. Continuity of Standing
18 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
10
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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
11
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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
13
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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
15
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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. Evidence Properly Considered on a Facial Challenge
5 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 6
Defendants maintained this position in their pretrial submissions as
27 well. (See Defs.' Mem. Cont. Fact & Law at 9-10 ("the only appropriate
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 . . . .").)
16
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1 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 objective indicators as taken from the face of the statute, the effect
of the statute, comparison to prior law, facts surrounding enactment
18 of the statute, the stated purpose, and the record of the
proceedings.
19
Foley, 747 F.2d at 1297 (citations omitted). And finally, the Ninth Circuit
20
noted, "basic analysis under the First Amendment . . . has not turned on the
21
motives of the legislators, but on the effect of the regulation." Id. at 1298
22
(emphasis added).
23
24
As Defendants correctly point out, these authorities do hold that
25
isolated (and in this case, sometimes inflammatory) statements of Senators
26
and House members during the Don't Ask, Don't Tell Act legislative hearings
27
should not be considered by the Court. Nevertheless, this does not affect,
28
18
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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
19
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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. Lay Witness Testimony
13 1. Michael Almy
14 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. 726:21-
16 727:11, 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. 726:23-
24 727:2, 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. 820:6-
27 821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to
28
20
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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 7
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.)
21
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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
24
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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. 760:8-
23 761:1, 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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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. 487:20-
4 488:7, 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, force-
16 fed dog food, and left in a dog kennel covered with feces. (Trial Tr. 521:11-
17 522:1, 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. 502:12-
19 504:5, 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
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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 3. Jenny Kopfstein
7 Jenny Kopfstein joined the United States Navy in 1995 when she
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. (Trial
10 Tr. 919:12-14, 926:11-927:3, 927:12-19, July 16, 2010.) She was assigned
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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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. 974:2-
21 977:11, 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.)
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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 As noted above with respect to his testimony on the standing issue, the
15 Court observed Nicholson to be credible and forthright.
16
17 5. Anthony Loverde
18 Anthony Loverde joined the United States Air Force on February 13,
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, 1327:16-
21 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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1 time he joined the military at age twenty-one. (Trial Tr. 1327:16-17, 1330:13-
2 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.)
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1 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 [non-
23 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
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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 6. Steven Vossler
12 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. 302:19-
15 303:5, 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
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26
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1 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 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.
12
13 IV. PLAINTIFF'S CHALLENGE UNDER THE DUE PROCESS CLAUSE
14 Plaintiff claims the Don't Ask, Don't Tell Act violates its members'
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.
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1 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 The Court begins by examining the provisions of the Act in more detail.
13
14 A. The Act
15 The Act is codified at 10 U.S.C. § 654; under § 654(b), the Secretary of
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 (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 a. The Crittenden Report (Trial Ex. 4)
24 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 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 f. Testimony of Dr. David Marlowe (Trial Ex. 344 at 261)
13 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 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 c. The Act's Impact on Military Recruiting
5 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. 1028:18-
23
24 29
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 d. Admission of Lesser Qualified Enlistees
7 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 so-
13 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 30
"Moral waivers" are used to admit recruits who otherwise would not
27 have been eligible for admission because of their criminal records, i.e.,
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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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 e. Other Effects of the Policy
12 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 f. Decreased and Delayed Discharge of Suspected
23 Violators of the Act
24 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 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 2. Defendants' Contention that the Act is Necessary to Protect
14 Unit Cohesion and Privacy
15 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 semi-
14 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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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. 951:10-
18 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 [non-
24 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
31
27 The RAND Corporation is a nonpartisan private nonprofit research
corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16,
28 2010.)
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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
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1 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. The Standard of Review in First Amendment Challenges
6 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 Laws regulating speech based on its content generally must withstand
11 intense scrutiny when facing a First Amendment challenge:
12 At the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs
13 deserving of expression, consideration, and adherence. Our
political system and cultural life rest upon this ideal. Government
14 action that stifles speech on account of its message, or that requires
the utterance of a particular message favored by the Government,
15 contravenes this essential right. Laws of this sort pose the inherent
risk that the Government seeks not to advance a legitimate
16 regulatory goal, but to suppress unpopular ideas or information or
manipulate the public debate through coercion rather than
17 persuasion. These restrictions rais[e] the specter that the
Government may effectively drive certain ideas or viewpoints from
18 the marketplace. For these reasons, the First Amendment, subject
only to narrow and well-understood exceptions, does not
19 countenance governmental control over the content of messages
expressed by private individuals. Our precedents thus apply the
20 most exacting scrutiny to regulations that suppress, disadvantage,
or impose differential burdens upon speech because of its content.
21 Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis added)
22 (citations omitted).
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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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. Judicial Definitions of Content-Based Regulation
13 "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 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. The Act Does Not Survive the Level of Constitutional Scrutiny
12 Applied to Speech in a Military Context
13 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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1 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 VI. CONCLUSION
6 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
VIRGINIA A. PHILLIPS
22 United States District Judge
23
24
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP (Ex)
non-profit corporation, )
12 )
Plaintiff, ) FINDINGS OF FACT &
13 ) CONCLUSIONS OF LAW AFTER
v. ) COURT TRIAL [Fed. R. Civ. P. 52]
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 1
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
28 (continued...)
1
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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 FINDINGS OF FACT2
6 1. Plaintiff Log Cabin Republicans ("Log Cabin," "LCR," or "Plaintiff") is a
7 non-profit corporation founded in 1977 and organized under the laws of
8 the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of
9 Incorporation].)
10 2. Plaintiff's mission includes "assist[ing] in the development and
11 enactment of policies affecting the gay and lesbian community . . . by
12 [the] federal government[]. . . and advocat[ing] and support[ing] . . .
13 activities or initiatives which (i) provide equal rights under law to
14 persons who are gay or lesbian, [and] (ii) promote nondiscrimination
15 against or harassment of persons who are gay or lesbian . . . ." (Trial
16 Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief
17 sought here, i.e., the ability of homosexual servicemembers to serve
18 openly in the United States Armed Forces through repeal of the Don't
19 Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission.
20 3. Plaintiff filed its Complaint on October 12, 2004. (Doc. No. 1.) It filed a
21 First Amended Complaint ("FAC") on April 28, 2006. (Doc. No. 25.)
22
23
24
1
25 (...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.
2
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1 4. Plaintiff seeks only declaratory and injunctive relief in its First Amended
2 Complaint; neither its claims nor the relief sought require individualized
3 proof on the part of its members.
4
5 John Doe’s Standing
6 5. John Doe serves as a lieutenant colonel in the United States Army
7 Reserve. He joined Log Cabin Republicans in early September 2004
8 by completing an application form (using a pseudonym) and paying
9 annual dues through Martin Meekins, then a member of Plaintiff's
10 national board of directors. Meekins accepted the application form and
11 dues payment from Doe and forwarded them to LCR's national
12 headquarters. (Trial Ex. 38.)
13 6. Doe arranged to pay his membership dues in this manner because he
14 feared he would be discharged from the Army Reserve pursuant to the
15 Don't Ask, Don't Tell Act if he joined the organization openly, using his
16 true name. Id.
17 7. Thus, at the time the Complaint was filed on October 12, 2004, John
18 Doe was a member in good standing of Plaintiff Log Cabin
19 Republicans.
20 8. To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual
21 orientation a secret from his coworkers, his unit, and his military
22 superiors, and he may not communicate the core of his emotions and
23 identity to others in the same manner as heterosexual members of the
24 military, on pain of discharge from the Army. (Doc. No. 212 ["July 6,
25 2010, Order"] at 16; Trial Ex. 38.)
26 9. Doe paid annual membership dues shortly before this action was filed
27 in October 2004, but LCR did not introduce evidence showing Doe paid
28
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1 military service; his father retired as a colonel in the Air Force, and two
2 uncles served as career military officers as well. (Trial Tr. 728:13-22,
3 July 16, 2010.)
4 24. Almy entered active duty in 1993, after obtaining an undergraduate
5 degree in Information Technology while serving in the Army ROTC
6 program. He did not self-identify as a gay man until a few years later.
7 (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he
8 testified, the Don't Ask, Don't Tell Act created a natural barrier between
9 himself and his colleagues, as he could not reveal or discuss his
10 personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16,
11 2010.) While it was common for the officers to socialize when off duty,
12 he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of
13 this may have contributed to creating an aura of suspicion about him,
14 and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)
15 25. The Court found Almy a forthright and credible witness whose modest
16 demeanor and matter-of-fact recitation of his service record did not
17 disguise his impressive career in the Air Force. Almy was deployed to
18 Saudi Arabia three times and helped enforce the southern "no fly" zone
19 over Iraq. Almy set up new communications bases throughout military
20 theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi
21 Arabia, serving in the Communications Directorate, during the 2003
22 invasion of Iraq. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.)
23 26. In 2003, after returning from his third deployment to Saudi Arabia, Almy
24 was promoted to the rank of major and accepted a position as the Chief
25 of Maintenance for the 606th Air Control Squadron in Spangdahlem,
26 Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy
27 commanded approximately 180 men in the Maintenance Directorate.
28
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1 (Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights4 in the
2 Maintenance Directorate under his command in the 606th Air Control
3 Squadron deployed to Iraq in September 2004. His squadron was
4 responsible for maintaining and controlling the airspace during the
5 invasion of Fallujah, Iraq, and he was responsible for maintaining
6 control over the vast majority of Iraqi airspace, including Kirkuk, as well
7 as maintaining all satellite links and voice and data communications.
8 (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air
9 Base, his flight experienced frequent mortar attacks "usually several
10 times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)
11 27. After Almy completed his third deployment to Iraq in January 2005,
12 someone began using the same computer Almy had used while
13 deployed; that person searched Major Almy's private electronic mail
14 message ("e-mail") files without his knowledge or permission. The
15 search included a folder of Major Almy's personal e-mail messages,5
16 sent to his friends and family members, and read messages, including
17 at least one message to a man discussing homosexual conduct. (Trial
18 Tr. 764:23-766:6-767:2, July 16, 2010.)
19 28. Almy thought the privacy of his messages was protected; he was very
20 knowledgeable about the military's policy regarding the privacy of e-
21 mail accounts because of his responsibility for information systems.
22 (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He
23
4
24 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.)
25 5
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.)
9
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1 knew, for example, that according to Air Force policy, e-mail accounts
2 could not be searched unless authorized by proper legal authority or a
3 squadron commander or higher in the military chain of command. (Trial
4 Tr. 772:20-773:4, July 16, 2010.)
5 29. Almy only learned his private e-mail had been searched when he
6 returned to Germany and his commanding officer confronted Almy with
7 the messages, read him the Don't Ask, Don't Tell Act, and pressured
8 him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20,
9 July 16, 2010.) At the end of the meeting, Almy was relieved of his
10 duties, and his commanding officer informed the other officers in the
11 squadron of this. (Trial Tr. 774:7-15, July 16, 2010.)
12 30. Almy had attained one of the highest level security clearances available
13 for military personnel, "top secret SCI6 clearance;" approximately three
14 months after Almy was relieved of his duties, his security clearance was
15 suspended. (Trial Tr. 775:8-15, July 16, 2010.)
16 31. Initially, Almy contested his discharge, as he felt he had not violated the
17 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the
18 military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather,
19 Almy's understanding was that his discharge was based solely on the
20 e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16,
21 2010.)
22 32. Accordingly, Almy invoked his right to an administrative hearing and
23 solicited letters of support from those who had worked with him in the
24 Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone
25 he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25,
26 July 16, 2010.)
27
6
28 "SCI" stands for "Sensitive Compartmented Information."
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1 33. Colonel Paul Trahan, U.S. Army (Ret.), wrote: "My view is that Major
2 Almy has been, and will continue to be an excellent officer. As a former
3 Commander and Inspector General I am well aware of the specifics of
4 the Homosexual Conduct Policy. To my knowledge, Major Almy is not
5 in violation of any of the provisions of the policy. To the contrary, it
6 appears that in prosecuting the case against Major Almy, the USAF
7 may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic
8 Privacy Act and Presidential directives regarding the suspension of
9 security clearances." (Trial Ex. 113 [Character Reference Letter from
10 Col. Paul Trahan, U.S. Army (Ret.)].)
11 34. Captain Timothy Higgins wrote: "Of the four maintenance directorate
12 chiefs I have worked with at the 606th, Major Almy is by far the finest.
13 During his tenure as the [director of logistics], he had maintenance
14 training at the highest levels seen to date . . . . His troops respected him
15 because they believed he had their best interests at heart." (Trial Ex.
16 117 [Character Reference Letter from Timothy J. Higgins, Capt.
17 USAF].)
18 35. Those who served under Almy wrote equally strong praise: "I can say
19 without reservation that Maj. Almy was the best supervisor I have ever
20 had." (Trial Ex. 120 [Character Reference Letter from Rahsul J.
21 Freeman, 1st Lt., USAF].) "I was deployed with him during the NATO
22 Exercise CLEAN HUNTER 2004. His leadership was key to our
23 successful completion of the mission. He was well liked and respected
24 by the enlisted personnel in the unit." (Trial Ex. 122 [Character
25 Reference Letter from Leslie D. McElya, SMSgt. USAF (Ret.)].)
26
27
28
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1 40. Major Almy received many awards and honors during his service in the
2 Air Force. For example, while serving at Tinker Air Force Base in the
3 late 1990s with the Third Combat Communications Group, he was
4 selected as "Officer of the Year," chosen as the top performer among
5 his peers for "exemplary leadership, dedication to the mission, and
6 going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16,
7 2010.) In 2001, he was one of six Air Force officers chosen to attend
8 the residential training program for officers at the Marine Corps
9 Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005, he was
10 awarded the Lt. General Leo Marquez Award, given to the top Air Force
11 communications officer serving in Europe. (Trial Tr. 760:8-761:1, July
12 16, 2010.) Although Almy had been relieved of command during the
13 pendency of the discharge proceedings, Almy's wing commander,
14 Colonel Goldfein, recommended that Almy be promoted to lieutenant
15 colonel. (Trial Tr. 816:19-818:1, July 16, 2010.)
16 41. Almy testified that if the Act were no longer in effect, he "wouldn't
17 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.)
18
19 Joseph Rocha
20 42. Joseph Rocha enlisted in the United States Navy on April 27, 2004, his
21 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family,
22 like Major Almy's, had a tradition of military service, and the September
23 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July
24 15, 2010.) He wanted to be an officer in the United States Marine
25 Corps, but was not admitted to the Naval Academy directly out of high
26 school; so he hoped to enter Officer Training School through diligence
27 as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)
28
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1 improve his chances for admission to the Naval Academy. (Trial Tr.
2 482:16-483:6, July 15, 2010.)
3 48. As Rocha aspired to become a Marine officer, after receiving
4 permission through the Marine chain of command, he began "more
5 formal training," eventually earning martial arts, combat, and swimming
6 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)
7 49. Once assigned as kennel support to the canine unit and under Chief
8 Petty Officer Toussaint's command, Rocha was hazed and harassed
9 constantly, to an unconscionable degree and in shocking fashion.
10 When the eighteen-year-old Rocha declined to participate in the unit's
11 practice of visiting prostitutes, he was taunted, asked if he was a
12 "faggot," and told he needed to prove his heterosexuality by consorting
13 with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.)
14 Toussaint freely referred to him as "gay" to the others in the unit, who
15 then began to use derogatory language towards Rocha. (Trial Tr.
16 486:11-17, July 15, 2010.)
17 50. When Rocha refused to answer questions about his sexual orientation
18 from Toussaint and others in the unit, "it became a frenzy," in Rocha's
19 words, and his superiors in the canine unit would gather around him,
20 simulate sexual positions, and ask if U.S. Marine Corps soldiers
21 performed various sexual acts on him. (Trial Tr. 487:20-488:7, 488:8-
22 19, July 15, 2010.) Toussaint ordered all of the other men in the unit to
23 beat Rocha on the his nineteenth birthday. (Trial Tr. 485:16-486:3, July
24 15, 2010.)
25 51. On one occasion that Rocha testified was especially dehumanizing,
26 Toussaint brought a dozen dogs to the Department of Defense
27 Dependents School for a bomb threat training exercise. For the
28
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1 67. After reflecting on his experiences in the military working dog unit in
2 Bahrain, however, he decided it would be impossible for him to serve
3 under the restraints of the Act and fulfill the commitment expected of
4 him. He then decided to inform the Navy of his sexual orientation.
5 (Trial Tr. 522:12-523:15, July 15, 2010.)
6 68. He first sought permission from his immediate supervisor, Ensign
7 Reingelstein, to speak to the division commander; Ensign Reingelstein
8 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr.
9 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with
10 his commanding officer, Lt. Bonnieuto, who listened and told him to
11 return to his unit. (Trial Tr. 525:2-19, July 15, 2010.)
12 69. Eventually, he received an honorable discharge (see Trial Ex. 144),
13 although before accepting Rocha's statement, Lt. Bonnieuto tried to
14 dissuade him, telling him he was being considered for various honors
15 and leadership positions at the preparatory school, including "battalion
16 leadership." (Trial Tr. 525:21-526:6, 527:13-528:22, 530:4-25, July 15,
17 2010.)
18 70. After his discharge, Rocha was diagnosed with service-related
19 disorders including "post-traumatic stress disorder with major
20 depression." (Trial Tr. 532:11-19, July 15, 2010.)
21 71. Rocha testified he would rejoin the Navy if the Don't Ask, Don't Tell Act
22 was repealed. (Trial Tr. 533:24-534:2, July 15, 2010.)
23 72. Even when recounting the mistreatment endured under Toussaint's
24 command, Rocha testified in an understated and sincere manner. The
25 Court found him a forthright and credible witness.
26
27
28
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1 Jenny Kopfstein
2 73. Jenny Kopfstein joined the United States Navy in 1995 when she
3 entered the United States Naval Academy; after graduation and further
4 training, she began serving on the combatant ship USS Shiloh on
5 March 15, 2000. (Trial Tr. 919:12-14, 926:11-927:3, 927:12-19, July
6 16, 2010.)
7 74. Kopfstein was assigned as the ship's ordnance officer, which means
8 she "was in charge of two weapon systems and a division of [fifteen]
9 sailors." (Trial Tr. 928:22-929:6, July 16, 2010.) When assigned as
10 "officer of the deck," Kopfstein was "in charge of whatever the ship
11 happened to be doing at that time," and coordinating the ship's training
12 exercises of as many as twenty to thirty sailors. (Trial Tr. 929:7-930:4,
13 July 16, 2010.)
14 75. Once assigned to the USS Shiloh, Kopfstein discovered the Act made it
15 impossible for her to answer candidly her shipmates' everyday
16 questions about such matters as how she spent weekends or leave
17 time; to do so would place her in violation of the Act as she would
18 necessarily be revealing the existence of her lesbian partner. (Trial Tr.
19 931:22-932:11, July 16, 2010.) Having to conceal information that
20 typically was shared made her feel as though other officers might
21 distrust her, and that trust is critical, especially in emergencies or
22 crises. (Trial Tr. 957:6-22, July 20, 2010.)
23 76. The Don't Ask, Don't Tell Act's prohibition on gay and lesbian
24 servicemembers revealing their sexual orientation affects trust among
25 shipmates, as Kopfstein testified, because it causes people to "hide
26 significant parts of themselves," making it harder to establish the
27 necessary sense of teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.)
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1 81. During the abbreviated course of her service, the Navy awarded
2 Kopfstein many honors. For example, she was chosen to steer the
3 USS Shiloh in a ship steering competition; after the USS Shiloh won the
4 competition, she received a personal commendation from the Admiral
5 who also ceremonially "gave her his coin," a rare and prized tribute.
6 (Trial Tr. 952:14-953:20, July 20, 2010.) When she returned from
7 overseas deployment after the bombing of the USS Cole off the coast
8 of Yemen in February 2001, the Navy awarded her the Sea Service
9 Deployment Ribbon, another commendation not routinely awarded.
10 (Trial Tr. 949:11-22, 954:5-22, July 20, 2010.) She also was awarded
11 the Naval Expeditionary Medal after the Yemen deployment. (Trial Tr.
12 955:5-11.)
13 82. On September 11, 2001, Kopfstein was the ordnance officer on the
14 USS Shiloh, in charge of all the weapons on the ship; the captain chose
15 her to be officer of the deck as the ship was assigned to defend the
16 West Coast against possible attack in the wake of the attacks on New
17 York and the Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20,
18 2010.) In October 2001, the Navy awarded her the Surface Warfare
19 Officer pin, during a ceremony where her captain took off his pin and
20 pinned it on her chest. (Trial Tr. 968:8-970:1, July 20, 2010.)
21 83. In evaluations completed before and after Kopfstein revealed her
22 sexual orientation, her commanding officers praised her as the USS
23 Shiloh's "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted
24 ship handler," and the manager of "one of the best ship's led and
25 organized divisions," and a "[s]uperb [t]rainer" with a "great talent for
26 teaching other junior officers." (Trial Exs. 138, 139.)
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1 84. Two captains under whom she served came to the Board of Inquiry to
2 testify on her behalf during her discharge proceedings. (Trial Tr. 974:2-
3 977:11, July 20, 2010.) Captain W.E. Dewes, Kopfstein's commanding
4 officer at the time of her discharge, reported that "[h]er sexual
5 orientation has not disrupted good order and discipline onboard USS
6 SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy"
7 and "played an important role in enhancing the ship[']s strong
8 reputation . . . . She is a trusted [o]fficer of the [d]eck and best ship
9 handler among her peers. Possesses an instinctive sense of relative
10 motion – a natural Seaman." (Trial Ex. 139.)
11 85. Captain Liggett also attended her discharge proceedings, where he
12 testified that "it would be a shame for the service to lose her." (Trial Ex.
13 138.)
14 86. Kopfstein served in the Navy without concealing her sexual orientation
15 for two years and four months before her discharge. During that time,
16 to her knowledge, no one complained about the quality of her work or
17 about being assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8,
18 989:9-17, July 20, 2010.)
19 87. Kopfstein did not want to leave the Navy; she enjoyed the company of
20 her shipmates and found her work rewarding. (Trial Tr. 973:16-24, July
21 20, 2010.)
22 88. Nevertheless, Kopfstein was discharged under the Don't Ask, Don't Tell
23 Act. (Id.) Although she appealed the decision to separate her from the
24 Navy, she did not prevail, and on October 31, 2002, she received an
25 honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.)
26 89. Kopfstein testified she "absolutely" would rejoin the Navy if the Act were
27 repealed. (Trial Tr. 980:16-22, July 20, 2010.)
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1 90. The Court found Kopfstein an honest, candid, and believable witness;
2 she testified with modest understatement about her talent and
3 achievements as a naval officer and with obvious sincerity about her
4 desire to rejoin to fulfill her original commitment.
5
6 John Nicholson
7 91. 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.
10 1129:3-1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He
11 underwent testing in the military for foreign language aptitude and
12 qualified for the most difficult level of language training, Category 4.
13 (Trial Tr. 1151:25-1152:3, 1154:4-9, July 20, 2010.)
14 92. While Nicholson served, especially while in basic training at Fort
15 Benning, Georgia, he sometimes heard other soldiers make sexist or
16 homophobic slurs but was afraid to report these violations of military
17 conduct lest suspicion fall on him or he be retaliated against in a
18 manner that would lead to his discharge under the Act. (Trial Tr.
19 1138:1-1142:14, 1143:2-24, July 20, 2010.)
20 93. The Don't Ask, Don't Tell Act prevented Nicholson from being open and
21 candid with others in his unit; it kept him under a "cloud of fear," and
22 caused him to lie about and alter who he was. (Trial Tr. 1194:17-
23 1196:20, July 20, 2010.)
24 94. After completing his basic training, Nicholson was assigned to Fort
25 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr.
26 1143:25-1144:3, July 20, 2010.) While completing his intelligence
27 training at Fort Huachuca, Nicholson requested and received a
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1 the platoon sergeant, who also had been present at the meeting,
2 ordered Nicholson not to disclose why he was being discharged from
3 the Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.)
4 100. After meeting with his company commander, Nicholson was separated
5 from his platoon and placed in a wing of the barracks containing other
6 servicemembers who were being discharged for reasons such as drug
7 use and failing to disclose criminal convictions before enlistment. (Trial
8 Tr. 1184:11-1185:11, July 20, 2010.)
9 101. Two months later, Nicholson was honorably discharged under the Don't
10 Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20,
11 2010.)
12 102. Nicholson testified he "absolutely" would return to the Army if the Don't
13 Ask, Don't Tell Act were invalidated. (Trial Tr. 1209:4-5, July 21, 2010.)
14 103. As noted above with respect to his testimony on the standing issue, the
15 Court observed Nicholson to be credible and forthright.
16
17 Anthony Loverde
18 104. Anthony Loverde joined the United States Air Force on February 13,
19 2001, making a six-year commitment and hoping to use his G.I. Bill
20 benefits to obtain a post-graduate degree eventually. (Trial Tr.
21 1326:19-24, 1327:16-1328:22, July 21, 2010.)
22 105. After completing basic training, he received specialized training in
23 electronics and further training in calibrations, after which he qualified at
24 the journeyman level as a Precision Measurement Equipment
25 Laboratory ("PMEL") technician. (Trial Tr. 1329:5-24, July 21, 2010.) A
26 PMEL technician calibrates the accuracy, reliability, and traceability of
27
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1 110. Loverde testified he was raised in a religious family and his church
2 taught that homosexuality was a sin; he had not realized he was gay at
3 the time he joined the military at age twenty-one. (Trial Tr. 1327:16-17,
4 1330:13-25, July 21, 2010.) After he became aware of his sexual
5 orientation, he researched the Don't Ask, Don't Tell Act and found the
6 Servicemembers' Legal Defense Network website. (Trial Tr. 1332:13-
7 1333:4, July 21, 2010.) He understood that there were three grounds
8 for discharge under the Act – marriage, conduct, and statements. (Trial
9 Tr. 1332:17-1333:4, July 21, 2010.) He resolved to comply with the Act
10 and remain in the Air Force.
11 111. The Air Force's core values are "Integrity First, Service Before Self, and
12 Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:20-
13 25, July 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act
14 effectively made it impossible to honor the "Integrity First" value of the
15 credo, because on occasion, he felt forced to lie rather than violate the
16 Act. Once, when with other servicemembers in a bar off base in
17 Germany, he refused the sexual advances of a German civilian woman,
18 and his colleagues asked him if he was gay; on another occasion, a
19 subordinate airman asked Loverde about his sexual orientation. (Trial
20 Tr. 1333:5-1334:16, 1349:24-1350:24, July 21, 2010.)
21 112. During the time he served as a loadmaster at Ramstein Air Base in
22 Germany, Loverde’s flight chief often used offensive epithets to refer to
23 homosexuals, as well as racist and sexist slurs. (Trial Tr. 1364:16-
24 1365:25, July 21, 2010.) Although Loverde was disturbed by this, he
25 felt he had no recourse and could not report it lest he draw attention to
26 his sexual orientation. Therefore, during the year he served under this
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1 officer, he never made any formal or informal complaint about it. (Id.;
2 Trial Tr. 1366:13-15, July 21, 2010.)
3 113. Loverde also testified that during his combat deployments and during
4 his assignments to bases in Germany and California, he faced the
5 difficulty of having to hide his personal life from his colleagues and
6 avoiding conversations with them about everyday life over meals, for
7 example. (Trial Tr. 1360:1-1361:17, July 21, 2010.) He became so
8 skilled at avoiding his fellow airmen that they nicknamed him "Vapor" in
9 recognition of his ability to vanish when off duty. (Id.)
10 114. In April 2008, Loverde decided he was no longer willing to conceal his
11 sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time,
12 he was deployed at Ali Al Saleem Air Base in Kuwait, and he delayed
13 formally telling his commanding officer of his decision until his return to
14 Germany, lest his entire flight's mission be disrupted and their return
15 from deployment delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July
16 21, 2010.)
17 115. When Loverde returned to Germany from his deployment, he wrote to
18 his first sergeant, requesting to speak to his commanding officer about
19 continuing to serve under the Don't Ask, Don't Tell Act, and stating that
20 while he wanted to continue serving in the Air Force, he could not do so
21 under that law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.)
22 116. Loverde's superiors recommended the Air Force retain him and
23 commended him for being "nothing less than an outstanding [non-
24 commissioned officer]" and "a strong asset" to the Air Force. (Trial Exs.
25 136, 137.) They praised him for demonstrating an "exceptional work
26 ethic" and "the highest level of military bearing, honest, and
27 trustworthiness." (Id.) One wrote: "If I ever had the opportunity to build
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1 my 'dream team' for work, I would take an entire crew of SSgt. Loverde
2 over most other workers. . . ." (Trial Ex. 137.)
3 117. Nevertheless, in July 2008 the Air Force gave Loverde an honorable
4 discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134,
5 136, 137; Trial Tr. 1372:20-1377:20, July 21, 2010.)
6 118. Loverde testified he would join the Air Force again "without a doubt" if
7 the Don't Ask, Don't Tell Act were repealed. (Trial Tr. 1389:12-18, July
8 21, 2010.) The Court found Loverde a candid and credible witness.
9
10 Steven Vossler
11 119. Steven Vossler's family has a tradition of service in the Army extending
12 back to the Spanish-American War, and he enlisted in the United
13 States Army in November 2000, before graduating high school. (Trial
14 Tr. 302:19-303:5, July 14, 2010.) After basic training, the Army sent
15 him to the Defense Language Institute in Monterey, California, because
16 of his exceptional aptitude for foreign languages. (Trial Tr. 305:5-306:6,
17 July 14, 2010.)
18 120. Vossler developed close friendships with other students at the
19 Language Institute, and testified that in general it is important to have
20 "good, open relationships" and to discuss one's personal experiences
21 and life with one's colleagues in the military, and if one does not, it is
22 perceived as an attempt to distance one's self. (Trial Tr. 316:7-317:17,
23 July 14, 2010.)
24 121. Vossler met Jerrod Chaplowski, another soldier and Korean language
25 student at the Monterey Language Institute, and became friends with
26 him. (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually
27 Vossler heard a rumor that Chaplowski was gay. (Trial Tr. 318:22-
28
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1 320:24, July 14, 2010.) Vossler was initially surprised at this, because
2 "up until that point, [he] still held some very stereotyping beliefs about
3 gays and lesbians," but as a heterosexual, he had no difficulty sharing
4 living quarters with Chaplowski at any of the several Army bases where
5 they were quartered together; in fact, Chaplowski was a considerate
6 roommate and it was always a "great living situation." (Trial Tr. 319:16-
7 17, 321:2-10, 327:1-11, 329:20-25, July 14, 2010.)
8 122. The difficulty Vossler encountered was that when he and Chaplowski
9 were with other servicemembers and the conversation turned to
10 general subjects, Vossler had to be excessively cautious lest he
11 inadvertently cast suspicion on Chaplowski and trigger an investigation
12 under the Don't Ask, Don't Tell Act. (See Trial Tr. 327:12-328:20, July
13 14, 2010.) For example, if a group of soldiers was discussing their
14 respective social activities over the previous weekend, Vossler had to
15 refer to Chaplowski's dinner companion as "Stephanie" rather than
16 "Steven;" even this small deception pained Vossler as it violated the
17 Army's code of honor. (Id.)
18 123. Vossler also observed that the Don't Ask, Don't Tell Act infringed
19 Chaplowski's ability or willingness to enforce the Army's policy banning
20 offensive and discriminatory language. (Trial Tr. 328:22-329:4, July 14,
21 2010.) Homophobic slurs, epithets, and "humor" were commonplace
22 and made Vossler uncomfortable; he noticed that Chaplowski did not
23 confront those who employed them, although Vossler eventually did at
24 times. (Trial Tr. 329:5-19, July 14, 2010.)
25 124. Vossler chose not to reenlist in the active-duty Army after his tour of
26 service expired, instead enlisting in the Army National Guard, which he
27 left in June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.)
28
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1 125. After leaving the military, Vossler became a vocal advocate for the
2 repeal of the Don't Ask, Don't Tell Act because he believes the Act
3 "doesn't seem in line with American values" and he "do[es]n't
4 understand how it's a law in [this] country" because he perceives the
5 Act to be discriminatory. (Trial Tr. 337:14-338:20, July 14, 2010.)
6 126. The Court found Vossler, in common with the other former military men
7 and women who testified at trial, a credible, candid, and compelling
8 witness.
9
10 The Don't Ask, Don't Tell Act
11 127. After taking office in 1992, President Clinton directed Secretary of
12 Defense Les Aspin to review his department's policy regarding
13 homosexuals serving in the military.
14 128. Congress undertook its own review and, in 1993, enacted the Don't
15 Ask, Don't Tell Act, which regulated the service of homosexual
16 personnel in the United States military. See National Defense
17 Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat.
18 1547 § 571, 10 U.S.C. § 654.
19 129. The Act contains a series of findings that mirror the concerns of then-
20 chairman of the Joint Chiefs of Staff Colin Powell's testimony before
21 Congress: "military life is fundamentally different from civilian life;"
22 "[s]uccess in combat requires military units that are characterized by
23 high morale, good order and discipline, and unit cohesion;" and "the
24 presence in the [A]rmed [F]orces of persons who demonstrate a
25 propensity of intent to engage in homosexual acts would create an
26 unacceptable risk to the high standards of morale, good order and
27
28
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1 discipline and unit cohesion that are the essence of military capability."
2 See 10 U.S.C. § 654(a); cf. S. Rep. No. 103-112 at 283 (1993).
3 130. The Act is codified at 10 U.S.C. § 654; under § 654(b), the Secretary of
4 Defense is authorized to formulate the implementing regulations, which
5 are comprised of Department of Defense Directives 1332.14 (1993),
6 1332.30 (1997), and 1304.26 (1993). The Secretary of Defense
7 recently changed the implementing regulations. See Department of
8 Defense Instruction ("DoDI") 1332.14 (2008) (incorporating March 29,
9 2010, changes); DoDI 1332.30 (2008) (incorporating March 29, 2010,
10 changes).
11 131. The statute provides that a member of the Armed Forces "shall be
12 separated" from military service under one or more of the following
13 circumstances.
14 a. First, a servicemember shall be discharged if he or she "has
15 engaged in, attempted to engage in, or solicited another to
16 engage in a homosexual act or acts." 10 U.S.C. § 654(b)(1).
17 b. Second, a servicemember shall be discharged if he or she "has
18 stated that he or she is a homosexual8 or bisexual,9 or words to
19 that effect . . . ." 10 U.S.C. § 654 (b)(2).
20 c. Third, a servicemember shall be discharged if he or she has
21 married or attempted to marry a person "known to be of the same
22 biological sex." 10 U.S.C. § 654 (b)(3).
23
24 8
"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).
9
27 "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).
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1 132. The first two routes to discharge have escape clauses; that is,
2 discharges via either subsection (b)(1) or (b)(2) create a rebuttable
3 presumption which the servicemember may attempt to overcome.
4 Through this exception, a servicemember may rebut the presumption
5 by demonstrating the homosexual conduct which otherwise forms the
6 basis for the discharge under the Act meets five criteria, including inter
7 alia, that it is a "departure" from the servicemember's "usual and
8 customary behavior," is unlikely to recur, and was not accomplished by
9 use of force, coercion or intimidation. 10 U.S.C. § 654 (b)(1)(A)-(E).
10 133. An escape route also applies to the second basis for discharge under
11 the Act, the making of a statement that one is a homosexual. It allows
12 the servicemember to rebut the presumption thus created by
13 demonstrating that "he or she is not a person who engages in, attempts
14 to engage, or has a propensity to engage in, or intends to engage in
15 homosexual acts." 10 U.S.C. § 654 (2).
16
17 Defendants' Evidence
18 134. Defendants specifically identified only the following items of legislative
19 history as those upon which they rely in support of their contentions that
20 the Act significantly furthers governmental interests in military readiness
21 or troop cohesion, or that discharge is necessary to those interests: (1)
22 the Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report;
23 and the testimony of the following witnesses during hearings on the
24 proposed Policy: (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr.
25 William Henderson; and (7) General Colin Powell. Defendants did not
26 include precise citations to any portion of the above-referenced
27 materials to support the constitutionality of the Policy.
28
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1 Dr. Marlowe also opined that a homosexual servicemember who did not
2 "flaunt" his or her homosexuality, acted as a soldier first and foremost,
3 and did not openly discuss his or her homosexuality would not
4 undermine unit cohesion. Dr. Marlowe foresaw no problem with such a
5 person serving in the Armed Forces.
6
7 g. Testimony of General Colin Powell (Trial Ex. 344 at 707)
8 General Colin Powell testified before the Senate Armed Services
9 Committee on July 20, 1993. General Powell expressed his general
10 support for the Policy as then proposed by President Clinton. General
11 Powell testified that in his opinion open homosexuality was
12 incompatible with military service and would undermine unit cohesion.
13 General Powell opined that "behavior too far away from the norm
14 undercuts the cohesion of the group." He testified to his belief that
15 military training on tolerance could not overcome the innate prejudices
16 of heterosexual servicemembers. He also testified that the Policy
17 would improve military readiness, but only in that it settled the question
18 of whether or not homosexuals could serve in the military, as the public
19 debate had been a recent distraction to the military. His testimony
20 implied that any final resolution of the issue, regardless of substance,
21 would improve military readiness.
22 General Powell testified that despite the official position of
23 nondiscrimination towards homosexuals in the militaries of countries
24 such as Canada, Germany, Israel, and Sweden, practice does not
25 always match policy, and homosexuals often are subjected to
26 discrimination in those militaries. General Powell also rejected
27 attempts to draw parallels between exclusion of homosexuals and
28
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1 137. The combined branches of the Armed Forces discharged the following
2 numbers of servicemembers from 1994, the first full year after adoption
3 of the Don't Ask, Don't Tell Act, through the calendar year 2001:
4
5 Number of Servicemembers
6 Year
Discharged
7 1994 61610
8 1995 75711
9 1996 85812
10 1997 99713
1998 1,14514
11
1999 1,04315
12
2000 1,21316
13 2001 1,22717
14
Total discharged 1994 2001 7,856
15
16
17
18 10
(Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers
19 discharged).)
11
20 (Trial Ex. 9, at 8.)
12
21 (Id.)
13
22 (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.)
23 14
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
24 15
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42
25 (showing 1,034 servicemembers discharged).)
16
26 (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42
(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 the number of servicemembers discharged under the Act fell sharply,
3 despite the greater raw number of military personnel. As but one
4 example, in 2001, Defendants discharged at least 1,217
5 servicemembers pursuant to the Don't Ask, Don't Tell Act. In 2002, the
6 number discharged under the Act fell to 885.
7 Year Number of Servicemembers
8 Discharged
9 2002 88518
10 2003 77019
11 2004 65320
12 2005 72621
2006 61222
13
2007 62723
14
2008 61924
15 2009 27525
16
Total discharged 2002-2009 5,167
17
18
19
18
20 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing
884 servicemembers discharged).)
21 19
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing
22 769 servicemembers discharged).)
20
23 (Trial Ex. 85, RFA Resp. No. 40.)
21
24 (Trial Ex. 85, RFA Resp. No. 41.)
22
25 (Trial Ex. 85, RFA Resp. No. 42.)
23
26 (Trial Ex. 85, RFA Resp. No. 43.)
24
27 (Trial Ex. 85, RFA Resp. No. 44.)
25
28 (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 illustrates that during wartime the military retains servicemembers
3 known to be homosexual, despite the Don't Ask, Don't Tell Act requiring
4 discharge, because of the heightened need for troops. (Trial Tr. 196:5-
5 198:6, 257:21-258:6, July 13, 2010.)
6
7 Discharge of Servicemembers with Critically Needed Skills and Training
8 140. Among those discharged pursuant to the Act were many
9 servicemembers with critically needed skills. According to the
10 Government's own data, many of those discharged pursuant to the Act
11 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.
14 (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from
15 furthering the military's readiness, the discharge of these service men
16 and women had a direct and deleterious effect on this governmental
17 interest.
18 141. 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
20 Policy" (Trial Ex. 9), Professor Frank pointed out that through fiscal year
21 2003, several hundred medical professionals had been discharged
22 pursuant to the Act, yet a 2003 Senate report described a lack of
23 medical care for wounded troops returning from the Arabian Gulf and
24 the resulting negative impact on physical health and troop morale.
25 (Trial Tr. 258:10-259:2, July 15, 2010.) At the same time that more
26 than one-hundred thousand U.S. troops were deployed to serve in
27 combat in Iraq and Afghanistan, several hundred servicemembers with
28
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1 the Navy, Air Force, and Army estimated that the cost to train
2 replacements for separated service members by occupation was
3 approximately $48.8 million, $16.6 million, and $29.7 million,
4 respectively." (Trial Ex. 85, RFA Resp. No. 21.)
5
6 Admission of Lesser Qualified Enlistees
7 147. Defendants discharged over 13,000 members of the Armed Forces
8 under the Don't Ask, Don't Tell Act since 1993. (Trial Tr. 195:5-8,
9 203:21-204:5.) Plaintiff introduced evidence that while Defendants
10 continued to enforce the Act by discharging servicemembers under it –
11 albeit in dramatically reduced numbers – after 2001, they also began to
12 admit more convicted felons and misdemeanants into the Armed
13 Forces, by granting so-called "moral waivers"27 to the policy against
14 such admissions. (Trial Tr. 199:1-17, July 13, 2010; see supra notes
15 10-25 and accompanying text.)
16 148. In addition to the increased numbers of convicted felons and
17 misdemeanants allowed to join the ranks of the military forces,
18 Professor Frank testified that increased numbers of recruits lacking the
19 required level of education and physical fitness were allowed to enlist
20 because of troop shortages during the years following 2001. (Trial Tr.
21 199:1-11, July 13, 2010.) Log Cabin's evidence went uncontradicted
22 that those who are allowed to enlist under a "moral waiver" are more
23 likely to leave the service because of misconduct and more likely to
24
25
26 27
"Moral waivers" are used to admit recruits who otherwise would not
27 have been eligible for admission because of their criminal records, i.e.,
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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1 leave without fulfilling their service commitment than others who joined
2 the Armed Forces. (Trial Tr. 209:2-13, July 13, 2010.)
3 149. Dr. Korb testified that eventually the troop shortages after 2001 caused
4 the U.S. Armed Forces to lower educational and physical fitness entry
5 standards as well as increase the number of "moral waivers" to such an
6 extent that, in his opinion, it became difficult for the military to carry out
7 its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same
8 time, discharging qualified servicemembers under the Don't Ask, Don't
9 Tell Act simply "does not make sense" in terms of military preparedness
10 because, in his words, the military is "getting rid of those who are
11 qualified to serve and admitting those who aren't." (Trial Tr. 1025:15-
12 20, July 20, 2010.)
13
14 Other Effects of the Policy
15 150. Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has
16 on military preparedness. He opined that in order for the military to
17 perform its mission successfully, it must mold persons from vastly
18 different backgrounds who join it into a united and task-oriented
19 organization. He described the military as a meritocracy, but testified
20 that the Don't Ask, Don't Tell Act detracts from the merit-based nature
21 of the organization, because discharges under the Act are not based on
22 the servicemember's failure to perform his or her duties properly, or on
23 the effect of the soldier's presence on the unit's morale or cohesion.
24 (Trial Tr. 1031:2-1033:10, July 20, 2010.)
25
26
27
28
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1 153. Taken as a whole, the evidence introduced at trial shows that the effect
2 of the Act has been, not to advance the Government's interests of
3 military readiness and unit cohesion, much less to do so significantly,
4 but to harm that interest. The testimony demonstrated that since its
5 enactment in 1993, the Act has harmed efforts of the all-volunteer
6 military to recruit during wartime.
7 154. The Act has caused the discharge of servicemembers in occupations
8 identified as "critical" by the military, including medical professionals
9 and Arabic, Korean, and Farsi linguists.
10 155. At the same time that the Act has caused the discharge of over 13,000
11 members of the military, including hundreds in critical occupations, the
12 shortage of troops has caused the military to permit enlistment of those
13 who earlier would have been denied entry because of their criminal
14 records, their lack of education, or their lack of physical fitness.
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 significantly the Government's interest in military readiness, the Don't
20 Ask, Don't Tell Act actually undermines that interest. President Obama,
21 the Commander-in-Chief of the Armed Forces, stated on June 29,
22 2009:
23 "Don't Ask, Don't Tell" doesn't contribute to our national
security . . . preventing patriotic Americans from serving their
24 country weakens our national security . . . . [R]eversing this
policy [is] the right thing to do [and] is essential for our national
25 security.
(Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.)
26
27
28
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1 157. President Obama also stated regarding the Act on October 10, 2009,
2 "We cannot afford to cut from our ranks people with the critical skills we
3 need to fight any more than we can afford – for our military's integrity –
4 to force those willing to do so into careers encumbered and
5 compromised by having to live a lie." (Trial Ex. 306; Trial Ex. 85, RFA
6 Resp. No. 12.)
7 158. Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed
8 these sentiments through a verified Twitter account, posted to the Joint
9 Chiefs of Staff website: "Stand by what I said [testifying in the U.S.
10 Senate Armed Services Committee on February 2, 2010]: Allowing
11 homosexuals to serve openly is the right thing to do. Comes down to
12 integrity." (Trial Ex. 330.)
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 as evidence that the Policy is necessary to protect unit cohesion and
18 heterosexual servicemembers' privacy. In particular, they quote and
19 rely on General Colin Powell's statements in his testimony before
20 Congress in 1993.
21 160. General Powell expressed his qualified support for the continued
22 service of gays and lesbians in the Armed Forces and the narrow
23 nature of his concerns. (Trial Ex. 344 [Policy Concerning
24 Homosexuality in the Armed Forces: Hearings Before the S. Comm. on
25 Armed Servs., 103rd Cong. (statement of General Colin Powell,
26 Chairman, Joint Chiefs of Staff)] at 709). He emphasized his concern
27 that "active military service is not an everyday job in an ordinary
28
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1 164. In his deployments to Saudi Arabia and Iraq, Almy was never quartered
2 in housing that had open bay showers, nor did he ever see such
3 housing for enlisted members or officers. (Trial Tr. 748:3-750:25, July
4 16, 2010.) The typical arrangement in Saudi Arabia was for enlisted
5 servicemembers and officers to have the same type of facilities,
6 including bathroom and shower facilities; officers typically did not have
7 to share rooms, and enlisted personnel usually shared a bedroom and
8 bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Open bay showers are
9 the exception in military quarters; most service members only use them
10 during basic training. (Trial Tr. 759:12-19, July 16, 2010.)
11 165. 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
13 beds and shared a large communal bathroom with toilets in individual
14 stalls and semi-private showers. (Trial Tr. 1154:25-1155:15, July 20,
15 2010.) Anthony Loverde testified that only during basic training was he
16 housed in barracks where open bay showers were the only option; he
17 had access to single stall shower facilities even when stationed at
18 Bagram Air Base in Afghanistan and at Balad Air Base in Iraq. (Trial
19 Tr. 1378:3-15, 1385:18-1386:12, July 21, 2010.)
20 166. Other servicemembers confirmed this testimony. Stephen Vossler
21 testified regarding his living quarters while he served as an enlisted
22 man in the Army; he shared a "not spacious" bedroom and also a
23 bathroom with a roommate. (Trial Tr. 330:4-11, July 14, 2010.)
24 Although Vossler learned his roommate was gay, Vossler had no
25 problems sharing quarters with him and thought he was a good
26 roommate. (Trial Tr. 329:20-330:21, July 14, 2010.)
27
28
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1 167. Professor Aaron Belkin confirmed this evidence in his testimony; his
2 research into military architecture revealed that apart from basic
3 training sites and service academies where there are open showers,
4 servicemembers usually have access to single stall showers. (Trial Tr.
5 617:21-619:1, July 15, 2010.) According to Professor Belkin, "the army,
6 in recent years, has implemented something called the one-plus-one
7 barracks design standard. What that means is that servicemembers
8 are housed in an arrangement where they each have their own
9 bedroom and there is a bathroom between the two bedrooms that they
10 share." (Trial Tr. 618:8-13, July 15, 2010.) Three-fourths of the troops
11 quartered in combat zones in Afghanistan and Iraq had access to single
12 stall showers, according to his research. (Trial Tr. 626:3-8, July 15,
13 2010.)
14 168. Plaintiff's evidence regarding unit cohesion was equally plentiful and
15 persuasive. The testimony of both its lay and expert witnesses
16 revealed that the Act not only is unnecessary to further unit cohesion,
17 but also harms the Government's interest.
18 169. After Michael Almy was relieved of his command abruptly under the
19 Act, he witnessed firsthand what occurred when an unprepared junior
20 officer was forced to take over. He testified that "[t]he maintenance of
21 the equipment, the mission overall, the availability – the up time of the
22 equipment, the availability of the equipment to meet the mission
23 suffered" and there was "a huge detrimental effect to the morale" of the
24 troops he commanded after he was relieved of his command. (Trial Tr.
25 813:21-25, 814: 1-6, July 16, 2010.) Almy testified, "Virtually every day
26 on my base on Spangdahlem, I would encounter one of my former
27 troops who wanted me back on the job as their officer and leader."
28
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1 (Trial Tr. 814:2-6, July 16, 2010.) His assessment was confirmed by
2 another officer in the squadron, who wrote that the squadron "fell apart"
3 after Major Almy was relieved of his duties, illustrating "how important
4 Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex.
5 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt.,
6 USAF, 606th Air Control Squadron].)
7 170. Jenny Kopfstein's commanding officer wrote that she was a "hard
8 working and dedicated junior officer who excelled as an [o]fficer of the
9 [d]eck" who "played an important role in enhancing the ship's strong
10 reputation." (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and
11 Counseling Record]; Trial Tr. 966:14-17.) He specifically noted that
12 "[h]er sexual orientation has not disrupted good order and discipline on
13 board USS SHILOH." (Trial Ex. 139; Trial Tr. 966:23-24.) Kopfstein
14 testified that after she stopped concealing her homosexuality while
15 serving on the USS Shiloh, she had many positive responses, and the
16 ability of her fellow crew members to trust her improved, thus aiding the
17 establishment of teamwork. (Trial Tr. 951:10-11, 979:8-21, 25, 980:1,
18 July 20, 2010.)
19 171. Anthony Loverde's superiors unquestionably felt that his discharge
20 pursuant to the Don't Ask, Don't Tell Act did not further the
21 Government's interest in unit cohesion. In recommending the Air Force
22 retain Loverde, they commended him for being "nothing less than an
23 outstanding [non-commissioned officer]" and "a strong asset" with "an
24 exceptional work ethic" and "the highest level of military bearing,
25 honesty, and trustworthiness." (Trial Exs. 136 [Letter from Michael
26 Yakowenko, CM Sgt.], 137 Letter from Richard Horn, SM Sgt.].) One
27 wrote: "If I ever had the opportunity to build my 'dream team' for work, I
28
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1 would take an entire crew of SSgt. Loverde over most other workers . . .
2 ." (Trial Ex. 137.)
3 172. Robert MacCoun, Professor of Law and Public Policy at the University
4 of California, Berkeley, and one of the contributors to the 1993 Rand
5 Report on the Don't Ask, Don't Tell Act, testified regarding social and
6 task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.)
7 Professor MacCoun holds a Ph.D. in psychology from Michigan State
8 University, was a post-doctoral fellow in psychology and law at
9 Northwestern University, spent seven years as a behavioral scientist at
10 the RAND Corporation,28 and has a distinguished research and
11 publication record. (Trial Tr. 856:16-864:7, July 16, 2010.) The Court
12 found his testimony cogent and persuasive.
13 173. According to Professor MacCoun, the RAND working group concluded
14 that task cohesion was paramount; it was a more important predictor of
15 military performance than social cohesion, and service in the Armed
16 Forces by openly homosexual members was not seen as a serious
17 threat to task cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:21-
18 25, 876:13-21, July 16, 2010.) Therefore, the recommendation to
19 Secretary of Defense Les Aspin from the RAND Corporation in the1993
20 Report was that sexual orientation should not be viewed as germane to
21 service in the military; the 1993 Report made various recommendations
22 regarding the implementation of this change. (Trial Ex. 8 [Sexual
23 Orientation and U.S. Military Personnel Policy: Options and
24 Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16, 2010.)
25
26
28
27 The RAND Corporation is a nonpartisan, private, nonprofit research
corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16,
28 2010.)
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1 174. Thus, the evidence at trial demonstrated that the Act does not further
2 significantly the Government's important interests in military readiness
3 or unit cohesion, nor is it necessary to further those interests.
4 Defendants' discharge of homosexual servicemembers pursuant to the
5 Act not only has declined precipitously since the United States began
6 combat in Afghanistan in 2001, but Defendants also delay individual
7 enforcement of the Act while a servicemember is deployed in a combat
8 zone. If the presence of a homosexual soldier in the Armed Forces
9 were a threat to military readiness or unit cohesion, it surely follows that
10 in times of war it would be more urgent, not less, to discharge him or
11 her, and to do so with dispatch.
12 175. The abrupt and marked decline – 50% from 2001 to 2002 and steadily
13 thereafter – in Defendants' enforcement of the Act following the onset of
14 combat in Afghanistan and Iraq, and Defendants' practice of delaying
15 investigation and discharge until after combat deployment, demonstrate
16 that the Act is not necessary to further the Government's interest in
17 military readiness.
18 176. In summary, Defendants have failed to show the Don't Ask, Don't Tell
19 Policy "significantly furthers" the Government's interests or that it is
20 "necessary" in order to achieve those goals. Plaintiff has relied not just
21 on the admissions described above that the Act does not further military
22 readiness, but also has shown the following:
23 • by impeding the efforts to recruit and retain an all-volunteer
24 military force, the Act contributes to critical troop shortages and
25 thus harms rather than furthers the Government's interest in
26 military readiness;
27
28
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1 178. The Act denies them the right to speak about their loved ones while
2 serving their country in uniform; it punishes them with discharge for
3 writing a personal letter, in a foreign language, to a person of the same
4 sex with whom they shared an intimate relationship before entering
5 military service.
6 179. The Act discharges them for including information in a personal
7 communication from which an unauthorized reader might discern their
8 homosexuality.
9 180. Michael Almy, Anthony Loverde, and Jenny Kopfstein all testified that
10 the Act prevented them from talking openly with their fellow
11 servicemembers about everyday personal matters or from soliciting
12 after hours with their colleagues. (Trial Tr. 821:19-822:9, July 16, 2010
13 (Almy); Trial Tr. 1360:1-1361:17, July 21, 2010 (Loverde); Trial Tr.
14 931:22-932:11, July 16, 2010; Trial Tr. 957:6-22, July 20, 2010
15 (Kopfstein).) This testimony, as well as that from Steven Vossler (Trial
16 Tr. 327:12-328:20, July 14, 2010), demonstrates that the Act's
17 restrictions on speech not only are broader than reasonably necessary
18 to protect the Government's substantial interests, but also actually
19 impede military readiness and unit cohesion rather than further these
20 goals.
21 181. Many of the lay witnesses also spoke of the chilling effect the Act had
22 on their ability to bring violations of military policy or codes of conduct to
23 the attention of the proper authorities. Joseph Rocha, eighteen- years-
24 old and stationed in Bahrain, felt restrained from complaining about the
25 extreme harassment and hazing he suffered because he feared that he
26 would be targeted for investigation under the Act if he did so. (Trial Tr.
27 488:20-489:14, July 15, 2010.) His fear was so great, if fact, that he
28
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1 still serving and subject to discharge under it;29 Nicholson already has
2 been discharged under it and cannot re-enlist as he wishes to do.
3 Finally, the dispute over the constitutionality of the Act has not been
4 resolved.
5 17. Likewise, the redressability aspect of constitutional standing remains
6 alive despite the lapse in Doe's dues-paying membership status. Doe's
7 imminent injury – the mandatory nature of his discharge under the
8 policy – would be addressed through a favorable ruling in this action.
9 18. Even if Defendants were correct that Log Cabin Republicans failed to
10 prove standing through Doe based on the lack of evidence he paid
11 dues after 2005, it does not follow that Plaintiff could not maintain its
12 claims. Plaintiff had standing to file suit based on the undisputed
13 evidence of Doe's membership as of October 12, 2004, the date Log
14 Cabin Republicans filed this action. (See supra Findings of Fact No. 7.)
15 19. Assuming Doe's membership lapsed a year later, in early September
16 2005, Plaintiff lacked standing temporarily from that time until April 28,
17 2006, when Nicholson became a member of Log Cabin Republicans.
18 Courts have recognized that a plaintiff who possesses standing when it
19 brings suit, later loses it, and then regains standing before entry of
20 judgment, may still maintain its claims. See, e.g., Schreiber Foods, Inc.
21 v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005) (finding
22 plaintiff that owned patent at outset of litigation, assigned it to
23 subsidiary, then reacquired it before judgment may maintain an
24 infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64,
25 70, 73 (2005).
26
29
27 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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1 20. Thus, assuming that Log Cabin Republicans lacked standing at some
2 point between early September 2005 and April 28, 2006, it still may
3 maintain its claims now.
4 21. Defendants' suggestion that LCR "manufactured" its standing for
5 purposes of this lawsuit lacks merit. (See Doc. No. 188 [Defs.'
6 Proposed Findings of Fact & Conclusions of Law] at 3.) The only
7 authority Defendants cite on this point is Washington Legal Foundation
8 v. Leavitt, 477 F. Supp. 2d 202, 211 (D.D.C. 2007), holding the
9 manufacture of standing "weakens" an association's ability to maintain
10 a lawsuit on behalf of its members.
11 22. Washington Legal Foundation was based on facts not present in the
12 record here, however. As that court explained, the Washington Legal
13 Foundation's board of directors explicitly decided to bring suit, and then
14 set about to find and recruit persons who would confer standing on it.
15 By contrast, the initiative for filing the present action came from the rank
16 and file of the LCR membership. See supra Findings of Fact No. 22.
17 23. Washington Legal Foundation is not binding authority on this Court, but
18 to the extent it provides guidance, it only holds that "manufacture" of
19 standing weakens but does not destroy an association's ability to
20 maintain its suit. Furthermore, there is no evidence here that LCR
21 manufactured standing, so Washington Legal Foundation is factually
22 dissimilar as well.
23
24 Evidence Considered by the Court
25 Plaintiff's Burden on a Facial Challenge
26 24. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court
27 held a plaintiff challenging the validity of a law on its face must establish
28
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1 that "no set of circumstances exists under which the Act would be
2 valid." Id. at 745. The defendants in Salerno were detained pending
3 trial under the provisions of the Bail Reform Act; they challenged the
4 Act, on its face, claiming it unconstitutionally violated the Fifth and
5 Eighth Amendments.
6 25. More recently, in Washington State Grange v. Washington State
7 Republican Party, 552 U.S. 442 (2008), the Supreme Court noted the
8 criticisms leveled at the Salerno standard and recognized an alternative
9 the test as follows: "a facial challenge must fail where the statute has a
10 'plainly legitimate sweep.'" Id. at 449 (citing Washington v. Glucksberg,
11 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)); see also
12 United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, 1587
13 (2010) (citing Glucksberg and noting the existence of two standards for
14 facial challenges outside the First Amendment context).
15 26. The Court considers the evidence presented at trial in this facial
16 challenge not for the purpose of considering any particular application
17 of the Don't Ask, Don't Tell Act, but rather for the permissible purposes
18 described in Conclusions of Law No.36-41, infra.
19 27. Plaintiff's evidence, as described above, amply illustrates that the Act
20 does not have a "plainly legitimate sweep." Rather, Plaintiff has proven
21 that the Act captures within its overreaching grasp such activities as
22 private correspondence between servicemembers and their family
23 members and friends, and conversations between servicemembers
24 about their daily off-duty activities. (See supra Findings of Fact Nos.
25 27, 28, 75, 93, 96-99, 113.)
26
27
28
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1 28. Plaintiff also has proven that the Act prevents servicemembers from
2 reporting violations of military ethical and conduct codes, even in
3 outrageous instances, for fear of retaliatory discharge. All of these
4 examples, as well as others contained in the evidence described
5 above, reveal that Plaintiff has met its burden of showing that the Act
6 does not have a "plainly legitimate sweep." (See supra Findings of
7 Fact Nos. 53, 76, 92, 112.)
8 29. Defendants rely on Salerno and its progeny, particularly Cook v. Gates,
9 528 F.3d 42 (1st Cir. 2008), in urging the Court to reject Log Cabin's
10 facial challenge. (Defs.' Mem. Cont. Fact & Law at 5; Trial Tr. 1670:14-
11 21-1671:23, 1684:12-14, July 23, 2010.) This reliance is misplaced.
12 30. In Cook, the First Circuit reasoned a facial challenge the Don't Ask,
13 Don't Tell Act failed because Lawrence "made abundantly clear that
14 there are many types of sexual activity that are beyond the reach of that
15 opinion," and "the Act includes such other types of sexual activity"
16 because it "provides for the [discharge] of a service person who
17 engages in a public homosexual act or who coerces another person to
18 engage in a homosexual act." 528 F.3d at 56 (citing Lawrence, 539
19 U.S. at 578).
20 31. The Court is not bound by this out-of-Circuit authority, and furthermore
21 finds the logic of Cook unpersuasive. First, Cook employed the
22 formulation from Salerno rather than the Supreme Court's more recent
23 articulation of the test for facial challenges set forth in Washington State
24 Grange. Moreover, the examples the Cook court cited as grounds for
25 discharge "under the Act" actually are bases for discharge of any
26 servicemember, whether the conduct in question is homosexual or
27 heterosexual. In fact, the Cook decision provides no citation to any
28
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1 provision of the Don't Ask, Don't Tell Act specifically listing either of its
2 examples as grounds for discharge under that legislation.
3
4 Evidence Properly Considered on a Facial Challenge
5 32. The Court finds meritless Defendants' contention that because Plaintiff
6 challenges the constitutionality of the statute on its face, rather than
7 challenging its application, the only evidence the Court should – indeed
8 may – consider, is the statute itself and the bare legislative history.
9 33. In United States v. O'Brien, 391 U.S. 367 (1968), the government
10 charged and convicted the defendant for burning his draft card; the
11 defendant contended the law under which he was prosecuted was
12 unconstitutional because Congress enacted it for the unlawful purpose
13 of suppressing speech. Id. at 383. The Supreme Court rejected this
14 argument, holding "under settled principles the purpose of Congress,
15 as O'Brien uses that term, is not a basis for declaring this legislation
16 unconstitutional. It is a familiar principle of constitutional law that this
17 Court will not strike down an otherwise constitutional statute on the
18 basis of an alleged illicit legislative motive." Id.
19 34. In part, the O'Brien Court founded its reasoning on the difficulty of
20 discerning a unified legislative "motive" underlying any given
21 enactment: "What motivates one legislator to make a speech about a
22 statute is not necessarily what motivates scores of others to enact it . . .
23 ." Id. at 384. Thus, O'Brien instructs that when "a statute . . . is, under
24 well-settled criteria, constitutional on its face," a court should not void
25 the law based on statements by individual legislators. Id. Thus, while
26 examining the legislative record, the Court must not pay heed to any
27 illegitimate motivations on the part of the enacting lawmakers.
28
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1 35. O'Brien does not stand for the proposition urged by Defendants,
2 however, that when deciding whether a challenged law "is, under well-
3 settled criteria, constitutional on its face," this Court should limit itself to
4 examining only the statute's legislative history. In fact, in the O'Brien
5 decision the Supreme Court specifically pointed to two cases, Grosjean
6 v. American Press Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot,
7 364 U.S. 339 (1960), noting that they "stand, not for the proposition that
8 legislative motive is a proper basis for declaring a statute
9 unconstitutional, but that the inevitable effect of a statute on its face
10 may render it unconstitutional." O'Brien, 391 U.S. at 394 (emphasis
11 added).
12 36. In both Grosjean and Gomillion, the Court noted, the purpose of the law
13 was irrelevant "because [of] the inevitable effect – the necessary scope
14 and operation." Id. at 385 (citations omitted).
15 37. Therefore, under O'Brien, Grosjean, and Gomillion, the court may admit
16 and examine evidence to determine the "scope and operation" of a
17 challenged statute; nothing in any of these authorities limits the Court's
18 discretion to consider evidence beyond the legislative history.
19 38. Defendants rely in vain on City of Las Vegas v. Foley, 747 F.2d 1294
20 (9th Cir. 1984), as support for their position regarding the inadmissibility
21 of Plaintiff's evidence. Foley arose out of a discovery dispute in a facial
22 constitutional challenge to a Las Vegas zoning ordinance restricting the
23 location of "sexually oriented businesses." Id. at 1296. One of the
24 affected businesses sought to depose city officials regarding their
25 motives in enacting the ordinance; after the city failed in its efforts to
26 obtain a protective order from the District Court, it sought mandamus
27 relief from the Ninth Circuit Court of Appeals. Id.
28
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1 39. The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged
2 illicit legislative motive," and relying on O'Brien, granted the writ,
3 directing the district court to issue a protective order. Id. at 1299. In
4 rejecting the arguments of the party seeking to depose the legislators,
5 the Foley court described the following types of evidence appropriately
6 considered by a court asked to determine a First Amendment
7 challenge: "objective indicators as taken from the face of the statute,
8 the effect of the statute, comparison to prior law, facts surrounding
9 enactment of the statute, the stated purpose, and the record of the
10 proceedings." Foley, 747 F.2d at 1297 (citations omitted).
11 40. The Ninth Circuit also noted in Foley that "basic analysis under the First
12 Amendment . . . has not turned on the motives of the legislators, but on
13 the effect of the regulation." Id. at 1298 (emphasis added).
14 41. Defendants correctly point out that the authorities discussed above hold
15 that isolated (and in this case, sometimes inflammatory) statements of
16 Senators and House members during the Don't Ask, Don't Tell Act
17 legislative hearings should not be considered by the Court.
18 42. Nevertheless, this does not affect, much less eviscerate, the language
19 in the authorities cited above that Defendants would have the Court
20 ignore, holding that a court deciding a facial challenge can and should
21 consider evidence beyond the legislative history, including evidence
22 regarding the effect of the challenged statute.
23 43. As this case includes a facial challenge on substantive due process as
24 well as First Amendment grounds, the Court notes that although the
25 authorities discussed above dealt with evidence properly considered by
26 courts in resolving First Amendment facial challenges, their holdings
27 regarding the admissibility of broad categories of testimonial and
28
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1 support for this conclusion that the Act harms, rather than furthers, the
2 Government's important interests.
3
4 The Act Is Not Necessary to Further the Government's Interests in
5 Military Readiness and Unit Cohesion
6 53. The Witt court held that to justify the infringement on the fundamental
7 rights identified in Lawrence, a defendant must satisfy both the
8 requirement that the Act "significantly furthers" the Government's
9 interests and the requirement that it is "necessary" to achieve them. To
10 the extent that Defendants have made a distinct argument here that the
11 Act is necessary to achieve the Government's significant interests, they
12 have not met their burden as to this prong of the Witt test, either.
13 54. In order to justify the encroachment on the fundamental rights
14 described above, Defendants faced the burden at trial of showing the
15 Don't Ask, Don't Tell Act was necessary to significantly further the
16 Government's important interests in military readiness and unit
17 cohesion. Defendants failed to meet that burden.
18 55. Thus, Plaintiff is entitled to judgment in its favor on the first claim in its
19 First Amended Complaint for violation of the substantive due process
20 rights guaranteed under the Fifth Amendment.
21
22 Plaintiff's First Amendment Challenge to the Act
23 56. "Congress shall make no law . . . abridging the freedom of speech, . . .
24 or the right of the people peaceably to assemble, and to petition the
25 Government for a redress of grievances." (U.S. Const. amend. I.)
26
27
28
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1 57. 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
3 Mem. Cont. Fact & Law at 32-33.)
4
5 The Standard of Review in First Amendment Challenges
6 58. 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.) Laws regulating speech based on its content
9 generally must withstand intense scrutiny when facing a First
10 Amendment challenge:
11 At the heart of the First Amendment lies the principle that
each person should decide for himself or herself the ideas and
12 beliefs deserving of expression, consideration, and
adherence. Our political system and cultural life rest upon this
13 ideal. Government action that stifles speech on account of its
message, or that requires the utterance of a particular
14 message favored by the Government, contravenes this
essential right. Laws of this sort pose the inherent risk that
15 the Government seeks not to advance a legitimate regulatory
goal, but to suppress unpopular ideas or information or
16 manipulate the public debate through coercion rather than
persuasion. These restrictions rais[e] the specter that the
17 Government may effectively drive certain ideas or viewpoints
from the marketplace. For these reasons, the First
18 Amendment, subject only to narrow and well-understood
exceptions, does not countenance governmental control over
19 the content of messages expressed by private individuals.
Our precedents thus apply the most exacting scrutiny to
20 regulations that suppress, disadvantage, or impose differential
burdens upon speech because of its content.
21 Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis
22 added) (citations omitted).
23 59. In Simon & Schuster, Inc. v. Members of New York State Crime Victims
24 Board, 502 U.S. 105 (1991), the Supreme Court considered whether
25 New York's "Son of Sam" law purporting to strip authors of profits
26 gained from books or other publications depicting their own criminal
27 activities constituted content-based regulation. Holding the law was not
28
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1 content neutral, the Court ruled that "[i]n order to justify such differential
2 treatment, 'the State must show that its regulation is necessary to serve
3 a compelling state interest and is narrowly drawn to achieve that end.'"
4 Id. at 118 (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S.
5 221, 231 (1987)).
6 60. "Deciding whether a particular regulation is content-based or content-
7 neutral is not always a simple task. We have said that the principal
8 inquiry in determining content-neutrality . . . is whether the government
9 has adopted a regulation of speech because of [agreement or]
10 disagreement with the message it conveys." Turner, 512 U.S. at 642
11 (citations omitted).
12 61. The Supreme Court in Turner distilled the rule as follows: a law that by
13 its terms "distinguish[es] favored speech from disfavored speech on the
14 basis of the ideas or views expressed [is] content-based." Id. at 643
15 (citing Burson v. Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry,
16 485 U.S. 312, 318-19 (1988)).
17 62. Defendants did not address directly the question of content neutrality,
18 but relied instead on authorities that, for various reasons, fail to counter
19 the clear weight of the case law discussed above. Defendants
20 repeatedly cited the Ninth Circuit's decisions in Witt v. Department of
21 Air Force, 527 F.3d 806 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420
22 (9th Cir. 1997), and Holmes v. California National Guard, 124 F.3d
23 1126 (9th Cir. 1997), although the plaintiff in Witt brought no First
24 Amendment claim and the Court in Philips expressly declined to reach
25 the First Amendment issue, noting the district court also had stopped
26 short of resolving it.
27
28
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1 63. In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech
2 claims in summary manner, holding because the plaintiffs "were
3 discharged for their conduct and not for speech, the First Amendment is
4 not implicated." 124 F.3d at 1136 (citations omitted).
5 64. Holmes relied on the Fourth Circuit's decision in Thomasson v. Perry,
6 80 F.3d 915 (4th Cir. 1996), which rejected a First Amendment
7 challenge to the Don't Ask, Don't Tell Act on the basis that it
8 "permissibly uses the speech as evidence," and "[t]he use of speech as
9 evidence in this manner does not raise a constitutional issue – the First
10 Amendment does not prohibit the evidentiary use of speech to establish
11 the elements of a crime, or, as is the case here, to prove motive or
12 intent." Id. at 931 (citations omitted).
13 65. Holmes also relied on Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991),
14 although acknowledging that decision was based not on the Don't Ask,
15 Don't Tell Act but a superseded policy. See Holmes, 124 F.3d at 1136
16 (citing Pruitt, 963 F.2d at 1164). In other words, Holmes and the cases
17 from other circuits have found the Don't Ask, Don't Tell Act does not
18 raise a First Amendment issue to be analyzed under a content-neutral
19 versus content-based framework.
20 66. None of these authorities, however, considered whether there might be
21 any speech, other than admissions of homosexuality subject to being
22 used as evidence in discharge proceedings, affected by the Act.
23 Furthermore, Holmes was decided before Lawrence and was
24 "necessarily rooted" in Bowers v. Hardwick, 478 U.S. 186 (1986), which
25 Lawrence overruled. See Holmes, 124 F.3d at 1137 (Reinhardt, J.,
26 dissenting).
27
28
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1 67. Lawrence struck down a Texas statute making felonious certain sexual
2 acts between two persons of the same sex; the Supreme Court held in
3 part that the Constitution recognized certain substantive due process
4 rights, associated with the "autonomy of self that includes freedom of
5 thought, belief, expression, and certain intimate conduct." Lawrence,
6 539 U.S. at 562 (emphasis added).
7 68. The Holmes decision, finding the Act did not implicate the First
8 Amendment, and the Act's provisions, appear at odds with the Supreme
9 Court's decision in Lawrence. As Holmes explains:
10 "Homosexual conduct is grounds for separation from the Military
11 Services under the terms set forth [in the DOD Directives.]
12 Homosexual conduct includes homosexual acts, a statement by a
13 member that demonstrates a propensity or intent to engage in
14 homosexual acts, or a homosexual marriage or attempted marriage. A
15 statement by a member that demonstrates a propensity or intent to
16 engage in homosexual acts is grounds for separation not because it
17 reflects the member's sexual orientation, but because the statement
18 indicates a likelihood that the member engages in or will engage in
19 homosexual acts." 124 F.3d at 1129 (quoting DOD Directive 1332.30
20 at 2-1(c) (emphasis added)).
21 69. The Holmes court found the Act does not punish status, despite the
22 presumption embodied within it that declared homosexual
23 servicemembers will engage in proscribed homosexual conduct, finding
24 the assumption was "imperfect" but "sufficiently rational to survive
25 scrutiny . . . ." 124 F.3d at 1135.
26
27
28
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1 77. The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S.
2 57 (1981), oft-cited for the principle that "judicial deference . . . is at its
3 apogee when legislative action under the congressional authority to
4 raise and support armies and make rules and regulations for their
5 governance is challenged." Id. at 70.
6 78. In keeping with this well-established rule of deference, regulations of
7 speech in a military context will survive Constitutional scrutiny if they
8 "restrict speech no more than is reasonably necessary to protect the
9 substantial government interest." Brown v. Glines, 444 U.S. 348, 348,
10 355 (1980) (citing Greer v. Spock, 424 U.S. 828 (1976); Procunier v.
11 Martinez, 416 U.S. 396 (1974)).
12 79. The Don't Ask, Don't Tell Act fails this test of constitutional validity.
13 Unlike the regulations on speech upheld in Brown and Spock, for
14 example, the sweeping reach of the restrictions on speech in the Don't
15 Ask, Don't Tell Act is far broader than is reasonably necessary to
16 protect the substantial government interest at stake here.
17 80. In Brown, the Supreme Court upheld an Air Force regulation that
18 required Air Force personnel first to obtain permission from the base
19 commander before distributing or posting petitions on Air Force bases,
20 444 U.S. at 348; in Greer, the Court upheld a similar regulation on Army
21 bases, banning speeches, demonstrations, and distribution of literature,
22 without prior approval from post headquarters. 424 U.S. at 828.
23 81. In both cases, the Court rejected facial challenges to the regulations,
24 holding they protected substantial Governmental interests unrelated to
25 the suppression of free expression, i.e., maintaining the respect for duty
26 and discipline, and restricted speech no more than was reasonably
27 necessary to protect that interest.
28
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
None None
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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
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
1
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.).
513
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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
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.
514
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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
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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).
516
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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
517
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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.
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. §
518
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519
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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
520
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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,
521
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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:
522
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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.
523
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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.
524
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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.
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
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).
525
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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;
(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.
526
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1
2
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4 JS-6
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP (Ex)
non-profit corporation, )
12 ) JUDGMENT AND PERMANENT
Plaintiff, ) INJUNCTION
13 )
v. )
14 )
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
________________________ )
18 )
19
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20
This action was tried by Judge Virginia A. Phillips without a jury on July
21
13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on
22
September 9, 2010 (Doc. 232), and an Amended & Final Memorandum
23
Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010.
24
For all the reasons set forth therein, the Court:
25
26
27
28
527
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1 (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
1
26 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).
2
528
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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 IT IS SO ORDERED.
6
7
8 Dated: October 12, 2010
VIRGINIA A. PHILLIPS
9 United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
529
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1 TONY WEST
Assistant Attorney General
2 ANDRÉ 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 UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
13 EASTERN DIVISION
14 LOG CABIN REPUBLICANS, ) No. CV04-8425 VAP (Ex)
)
15 Plaintiff, ) DEFENDANTS’
)
16 v. ) (1) EX PARTE APPLICATION
) FOR THE ENTRY OF AN
17 UNITED STATES OF AMERICA AND) EMERGENCY STAY;
ROBERT M. GATES, Secretary of Defense,)
18 ) (2) MEMORANDUM OF POINTS
Defendants. ) AND AUTHORITIES IN
19 ) SUPPORT OF EX PARTE
) APPLICATION;
20 )
) (3) DECLARATION OF
21 ) CLIFFORD L. STANLEY
22 (4) DECLARATION OF PAUL G.
FREEBORNE; AND
23
(5) PROPOSED ORDER
24
BEFORE: Judge Phillips
25
26
27
28
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. BOX 883, BEN FRANKLIN STATION
DEFENDANTS’ EX PARTE APPLICATION WASHINGTON, D.C. 20044
FOR A STAY OF JUDGMENT (202) 353-0543
530
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1 TABLE OF CONTENTS
2
I. INTRODUCTION .......................................................................................... 1
3
II. DEFENDANTS DO NOT MEET THE STANDARDS FOR A STAY
4 UNDER RULE 62(c) ...................................................................................... 2
5
A. Defendants Are Not Likely to Succeed on the Merits. .................... 3
6
B. Defendants Will Not Be Irreparably Injured Absent a Stay.......... 5
7
C. Issuance of a Stay Will Substantially Injure Log Cabin’s
8
Members, and All Homosexual Servicemembers, by
9 Perpetuating the Denial of Their Constitutional Rights................. 7
10 D. The Public Interest Favors Denial of a Stay of the Injunction. ..... 8
11
III. THE GOVERNMENT’S CLAIMED HARDSHIP IS A RED HERRING10
12
IV. CONCLUSION ............................................................................................. 12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-i-
OPPOSITION TO EX PARTE APPLICATION
LOSANGELES 882425 (2K) FOR EMERGENCY STAY OF INJUNCTION534
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1 TABLE OF AUTHORITIES
2
Page(s)
3
4
FEDERAL CASES
5
Able v. United States,
6 155 F.3d 628 (2d Cir. 1998) ................................................................................. 4
7 Alliance for the Wild Rockies v. Cottrell,
___ F.3d ___, No. 09-35756, 2010 WL 3665149 (9th Cir. Sept. 22, 2010) ........ 3
8
Bowen v. Kendrick,
9 483 U.S. 1304, 97 L. Ed. 2d 787, 108 S. Ct. 1 (1987)
(Rehnquist, J., in chambers) ............................................................................... 10
10
Coalition for Econ. Equity v. Wilson,
11 122 F.3d 718 (9th Cir. 1997) .............................................................................. 10
12 Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) .................................................................................. 4
13
Elrod v. Burns,
14 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ....................................... 7
15 Gay Lesbian Bisexual Alliance v. Sessions,
917 F. Supp. 1558 (M.D. Ala. 1996).................................................................... 3
16
Golden Gate Rest. Ass’n v. City and County of San Francisco,
17 512 F.3d 1112 (9th Cir. 2008) .....................................................................passim
18 Hilton v. Braunskill,
481 U.S. 770, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987) ..................................... 2
19
Lawrence v. Texas,
20 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003) ................................... 4
21 Lopez v. Heckler,
713 F.2d 1432 (9th Cir. 1983) .............................................................................. 3
22
Nelson v. Nat’l Aeronautics & Space Admin. (Nelson II),
23 530 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
24
New Motor Vehicle Bd. v. Orrin W. Fox Co.,
25 434 U.S. 1345, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977)
(Rehnquist, J., in chambers) ................................................................................. 9
26
Philips v. Perry,
27 106 F.3d 1420 (9th Cir. 1997) .............................................................................. 4
28
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1 Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996) .................................................................................. 4
2
Thomasson v. Perry,
3 80 F.3d 915 (4th Cir. 1996) (en banc).................................................................. 4
4 Tucker v. City of Fairfield,
398 F.3d 457 (6th Cir. 2005) ................................................................................ 7
5
Weiss v. United States,
6 510 U.S. 163, 127 L. Ed. 2d 1, 114 S. Ct. 752 (1994) ......................................... 9
7 Winston-Salem/Forsyth County Bd. of Educ. v. Scott,
404 U.S. 1221, 31 L. Ed. 2d 441, 92 S. Ct. 1236 (1971) ..................................... 2
8
Winter v. Natural Resources Defense Council,
9 ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365 (2008) ................................. 2, 3
10 Witt v. Department of the Air Force,
527 F.3d 806 (9th Cir. 2008) .......................................................................... 4, 10
11
12
FEDERAL CONSTITUTION
13
Fourteenth Amendment ........................................................................................... 10
14
First Amendment ................................................................................................... 7, 9
15
16
FEDERAL RULES
17
Rule 62(c) .................................................................................................................. 2
18
19
20
21
22
23
24
25
26
27
28
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1 I.
2 INTRODUCTION
3 This is at least the government’s fifth request for a stay in this case, following
4 the stay it requested in its Objections to plaintiff’s proposed judgment (Doc. 235)
5 and the three prior requests identified in plaintiff’s Response to those Objections
6 (Doc. 236). See Minute Order of October 12, 2010 (Doc. 249), at 13-14. The
7 government does not even discuss, let alone call into question, any of the reasons
8 for the injunction that were set forth in that Minute Order or in the Court’s 85-page
9 Memorandum Opinion (Doc. 250) or its 84-page Findings of Fact and Conclusions
10 of Law (Doc. 251). Instead, it supports the request first with a belated declaration
11 from an Undersecretary of Defense ominously recounting the bureaucratic
12 nightmare that the injunction will supposedly create for his Department, and
13 second, unbelievably, with an Internet printout of an interview of President Obama
14 in Rolling Stone magazine – the rankest of hearsay and unsworn, self-serving
15 statements which the Court should disregard. Defendants make nowhere near the
16 showing required to sustain an application for a stay of injunction pending appeal.
17 The government rushes to appeal the Court’s judgment that DADT is
18 unconstitutional, even as the President states repeatedly in public pronouncements
19 that the policy weakens and undermines our national security and will “end on [his]
20 watch”.1 The government is evidently uncomfortable with the fact that it is arguing
21 that this case should not proceed to the inevitable invalidation of Don't Ask, Don't
22 1
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
23 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
24 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
25 made it clear that he agrees with the principles underlying the Court’s judgment:
“we recently had a Supreme Court -- a district court case that said, ‘don’t ask, don’t
26 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
27 national security, anybody should be able to serve. And they shouldn’t have to lie
about who they are in order to serve.” See http://www.whitehouse.gov/the-press-
28 office/2010/10/14/remarks-president-a-youth-town-hall.
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1 Tell at the same time as the senior civilian and military command professes to wish
2 for the end of that policy. That discomfort is well justified. But the fact that the
3 government’s continued defense of the case bespeaks hypocrisy at its highest levels
4 should reinforce, not deter, the Court from maintaining the injunction it correctly
5 entered based on the evidence presented at trial, and thereby safeguarding the
6 Constitutional rights of our servicemembers.
7 Every day that the government remains free to implement the Don’t Ask,
8 Don’t Tell policy, American citizens’ Constitutional rights are violated. The
9 emergency stay of injunction that the government requests would perpetuate this
10 unconstitutional state of affairs with no countervailing benefit to the government
11 that outweighs the deprivation of rights such a stay would entail. The request for
12 stay must be denied.
13 II.
14 DEFENDANTS DO NOT MEET
15 THE STANDARDS FOR A STAY UNDER RULE 62(C)
16 A stay of injunction under Fed. R. Civ. P. 62(c) is considered “extraordinary
17 relief” for which the moving party bears a “heavy burden.” Winston-Salem/Forsyth
18 County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231, 31 L. Ed. 2d 441, 92 S. Ct.
19 1236 (1971). Four factors regulate the issuance of a stay of a district court order,
20 including stay of injunction, pending appeal: (1) whether the stay applicant has
21 made a strong showing that he is likely to succeed on the merits; (2) whether the
22 applicant will be irreparably injured absent a stay; (3) whether issuance of the stay
23 will substantially injure the other parties interested in the proceeding; and (4) where
24 the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724,
25 107 S. Ct. 2113 (1987). These are the same four factors that must be shown by a
26 party moving for an injunction in the first place, see Winter v. Natural Resources
27 Defense Council, ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365, 374 (2008), and
28 analysis of the factors in the one situation informs the analysis in the other. See
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1 Golden Gate Rest. Ass’n v. City and County of San Francisco, 512 F.3d 1112,
2 1115-16 (9th Cir. 2008).
3 The moving party must show the existence of all four factors; and the moving
4 party must show not merely the “possibility” of irreparable injury absent a stay, as
5 defendants contend, but the likelihood of irreparable injury. Winter, 129 S.Ct. at
6 375 (rejecting the Ninth Circuit’s earlier “possibility” standard as articulated in,
7 e.g., Golden Gate Rest. Ass’n, 512 F.3d at 1115, and Lopez v. Heckler, 713 F.2d
8 1432, 1435 (9th Cir. 1983), cited by defendants); Alliance for the Wild Rockies v.
9 Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149, at *5, 8 (9th Cir. Sept.
10 22, 2010). The government’s showing here fails all four factors.
11 A. Defendants Are Not Likely to Succeed on the Merits.
12 Defendants’ application completely fails to argue that defendants are likely
13 to succeed on the merits of their appeal, the first necessary prong of the test for a
14 stay. There is an excellent reason for that omission: defendants are not at all likely
15 to succeed on the merits, and they know it.2 Log Cabin’s evidence at trial was
16 overwhelming and showed conclusively that Don't Ask, Don't Tell does not
17 significantly further an important governmental interest, is not necessary to that
18 interest, and in fact impairs that interest. The government presented no evidence to
19 the contrary and will be restricted on appeal to the record it made – the legislative
20 history of the statute. Under the circumstances, it cannot show any likelihood of
21 success on the merits. See Gay Lesbian Bisexual Alliance v. Sessions, 917 F.
22 Supp. 1558, 1563 (M.D. Ala. 1996) (denying stay of declaration of facial
23 unconstitutionality of state statute because the state could identify no single
24 prospective application of the statute that would be constitutional).
25 A moving party that cannot make a showing of likely success on the merits
26 may substitute a showing that the appeal presents a serious legal question. See
27 Golden Gate Rest. Ass’n, 512 F.3d at 1115-16. That fallback argument is
28 2
The application’s apologetic footnote 1 acknowledges as much.
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1 apparently what the government relies on here, in the very cursory Part B of its
2 Argument at page 4 of its application. But defendants cannot show the existence of
3 a serious legal question here.
4 First of all, they do not even identify what the supposed “serious question” is.
5 Is it Log Cabin’s standing? Is it the fact that this case presented a facial challenge?
6 Is it the admission of some particular evidence? Is it the Court’s application of the
7 Witt standard? The Court and Log Cabin are left to guess.
8 For their claim that such a serious question exists, defendants again rely
9 solely, as they have throughout this case, on five previous Circuit Court cases that
10 did not invalidate DADT: Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Cook v.
11 Gates, 528 F.3d 42 (1st Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir.
12 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry,
13 80 F.3d 915 (4th Cir. 1996) (en banc). As we have pointed out more than once
14 before, all of these cases except Cook predate the Supreme Court’s decision in
15 Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), and
16 therefore, as the Court has recognized (See Minute Order of October 12, 2010
17 (Doc. 249), at 9-10), are not relevant here. As for Cook, it does not control in this
18 Circuit, where the rule of Witt v. Department of the Air Force, 527 F.3d 806 (9th
19 Cir. 2008) – a decision the government elected not to appeal –governs.3 The
20 injunction here was specifically based on Witt, and there can be no serious legal
21 question of its validity under the controlling law.
22 Moreover, following remand from the Ninth Circuit, Witt is also the only
23 other case to have gone to a full trial on the merits of DADT. That trial resulted in
24 the same finding this Court reached, that DADT was unconstitutional, in its as-
25
3
The government continues to falsely assert that Witt “rejected as inappropriate a
26 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
27 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.
28
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1 applied setting. To our knowledge, the government has not moved to stay the trial
2 court’s decision of reinstatement. These facts show further that no “serious legal
3 question,” as defined in stay jurisprudence, is presented here.
4 Finally, though the defendants’ application ignores this requirement, a
5 movant relying on the “serious legal question” alternative must show that the
6 second and third factors, collectively the balance of hardships, tips “sharply” in its
7 favor. Golden Gate Rest. Ass’n, 512 F.3d at 1115-16; Nelson v. Nat’l Aeronautics
8 & Space Admin. (Nelson II), 530 F.3d 865, 872-73 (9th Cir. 2008), cert. granted on
9 other grounds, ___U.S. ___, 176 L. Ed. 2d 211, 130 S. Ct. 1755 (March 8, 2010)
10 (No. 09-530). As shown below, the balance of hardships in this case in fact tips
11 sharply toward the plaintiff, so defendants cannot rely on the “serious legal
12 question” avenue.
13 B. Defendants Will Not Be Irreparably Injured Absent a Stay.
14 The great bulk of the defendants’ application for stay is devoted to their
15 claim that the military will be harmed if the Court’s injunction remains in place
16 while the government pursues an appeal.4 But the injunction does not require the
17 military to do anything affirmatively: it does not order the military to redesign its
18 barracks, to retool its pay scales, to re-ordain its chaplains, or any of the other
19 specters raised in the application. The Court’s injunction requires only one thing:
20 to cease investigating and discharging honorable, patriotic, brave fighting men and
21 women for reasons unrelated to their performance and military ability.
22 With the injunction in place, nothing will change with regard to the
23 composition of the military, the recruitment, training, promotion, demotion, and
24 deployment of servicemembers, the mission and operations of the armed forces, or
25 4
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
26 identified in the moving papers are all to the military’s institutional interests and its
bureaucratic needs. Though the military ultimately serves the public, its interests
27 are not the “public interest” and conflating the two, as the government’s application
attempts to do, is misleading. As discussed in Part D below, the true public interest
28 is served by ensuring that the military is held to Constitutional standards.
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1 anything else that pertains to the important governmental interest that the military
2 serves. The evidence at trial showed that homosexual men and women already
3 serve today; they are deployed to theaters of combat when needed – indeed,
4 retained overall in greater numbers when needed – even if they are openly
5 homosexual; it is their discharge, not their presence, that if anything impacts morale
6 and good order. As the Court held (Am. Memo. Opinion (Doc. 250), at 59), “[f]ar
7 from furthering the military's readiness, the discharge of these service men and
8 women had a direct and deleterious effect on this governmental interest.” The
9 evidence at trial “directly undermine[d] any contention that the Act furthers the
10 Government’s purpose of military readiness,” id. at 64; and defendants admitted –
11 in public statements of the President and the Chairman of the Joint Chiefs of Staff –
12 that “far from being necessary to further significantly the Government’s interest in
13 military readiness, the Don't Ask, Don't Tell Act actually undermines that interest.”
14 Id. at 65. Enjoining the enforcement of DADT, far from injuring defendants, will
15 actually improve morale, readiness, cohesion, and overall military effectiveness.
16 Neither should the government be heard to argue, as it does in Part D of its
17 Argument at page 12, that a stay of the injunction is necessary to preserve the status
18 quo. “Maintaining the status quo is not a talisman.” Golden Gate Rest. Ass’n, 512
19 F.3d at 1116. The focus is on prevention of injury: “[i]t often happens that this
20 purpose is furthered by preservation of the status quo, but not always. If the
21 currently existing status quo itself is causing one of the parties irreparable injury, it
22 is necessary to alter the situation so as to prevent the injury. … The focus always
23 must be on prevention of injury by a proper order, not merely on preservation of the
24 status quo.” Id., quoting Canal Auth. of Florida v. Callaway, 489 F.2d 567, 576
25 (5th Cir. 1974).
26 The supposed “injury” to the military that the government claims would
27 result from the Court’s order invalidating DADT is, by the government’s own
28 account, entirely a matter of rewriting handbooks and personnel manuals,
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1 pursues its appeal preserves servicemembers’ Constitutional rights and allows them
2 to continue serving in the military just as they do today. They will continue to be
3 held to the military standards applicable to all servicemembers, and subject to the
4 same discipline and regulations that apply to all. In the unlikely event that the
5 Court’s judgment is ultimately reversed and the Don't Ask, Don't Tell Act is
6 reinstated, the government may resume investigations and discharges with no ill
7 effects beyond the hiatus it will have experienced. But the ill effects to homosexual
8 servicemembers of the inverse scenario – disruption and termination of their
9 military careers, with merely the hollow satisfaction of abstract vindication when
10 the Court’s judgment is ultimately upheld – are irreparable. These individuals will
11 not be reinstated, even if reinstatement could make them whole for the deprivation
12 of Constitutional rights they would have suffered. The concrete injury to them
13 from an ill-advised stay of the injunction far outweighs the theoretical harm to the
14 government that might result from maintaining the injunction in place during the
15 appeal process, and tips the balance of hardships “sharply” in favor of plaintiff.
16 Witnesses at trial – men and women, officers and enlisted personnel, from
17 multiple branches of the service – presented powerful, unforgettable testimony of
18 the effects of DADT on their personal lives and on the lives of their unit comrades.
19 Compelled by DADT to lie and dissemble about their human nature, subjected to
20 unredressable humiliations, forced out of careers in which they were commended
21 and decorated: these individuals proved that DADT causes, every day that it
22 remains in force, irreparable injury to American servicemembers. “‘Faced with …
23 a conflict between financial concerns and preventable human suffering, we have
24 little difficulty concluding that the balance of hardships tips decidedly’ in favor of
25 the latter.” Golden Gate Rest. Ass’n, 512 F.3d at 1126, quoting Lopez, 713 F.2d at
26 1437.
27 D. The Public Interest Favors Denial of a Stay of the Injunction.
28 The analysis of where the public interest lies is a separate and additional
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1 consideration from that of irreparable injury. Golden Gate Rest. Ass’n, 512 F.3d at
2 1116. The public interest is not identical to the government’s interest; if it were,
3 this factor would always count in favor of sustaining a statute or granting a stay of
4 an injunction invalidating a statute, and there would be no need to include it as one
5 of several factors to be considered. Here, the public interest is in safeguarding the
6 Constitutional rights that define us as a nation. The public interest is not served by
7 merely giving blind deference to military judgment. Rather, the clear public
8 interest is in ensuring that the military, like every other institution of our society,
9 conforms to Constitutional requirements. “Congress, of course, is subject to the
10 requirements of the Due Process Clause when legislating in the area of military
11 affairs....” Weiss v. United States, 510 U.S. 163, 176, 127 L. Ed. 2d 1, 114 S. Ct.
12 752 (1994).
13 It must not be overlooked that it is not only servicemembers who are affected
14 by DADT. Servicemembers’ family and friends – third party members of the
15 public – are affected also, as their own First Amendment rights are impaired when a
16 servicemember cannot write them a private letter or express affection to them in
17 public. Their interests militate against the granting of a stay of injunction as well.
18 The moving papers attempt to transform the “presumptive constitutional
19 validity of an act of Congress” into an ipso facto conclusive declaration of the
20 public interest; the application goes so far as to claim (at pages 5-6) that the
21 “interim” invalidation of a statute by itself “constitutes sufficient grounds to enter a
22 stay.” Leaving aside the question of whether this Court’s permanent injunction
23 following a full trial on the merits is in any sense “interim,” it is simply not the case
24 that a stay is required whenever a statute is held unconstitutional. The cases cited
25 by the government do not support that proposition.
26 The language the government cites from New Motor Vehicle Bd. v. Orrin W.
27 Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977) (Rehnquist,
28 J., in chambers) (“[A]ny time a State is enjoined by a Court from effectuating
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1 fulfilling their constitutional function.6 The Court should reject these arguments,
2 because they do not establish good cause for a stay of the injunction.
3 First, not only is the timing of the working group’s research arbitrary, but its
4 result is uncertain. As the Court has recognized when the government has
5 requested previous stays based on the working group’s process, that group’s report
6 could be negative; its conclusions could be rejected, by the Executive or the
7 military; and the Congress could disagree. Indeed, there is significant opposition
8 today in the Congress to a legislative repeal of DADT even if the working group’s
9 report supports repeal. Homosexual servicemembers are fighting and dying today
10 in two wars for their fellow Americans’ Constitutional rights; their own
11 Constitutional rights should not be held hostage to an uncertain bureaucratic
12 process that wants time to develop educational and training materials.
13 Secondly, the government has known since July 24, 2009, when this case
14 was set for trial, that there was a possibility that DADT would be declared
15 unconstitutional and that it might have to prepare for that eventuality. If it chose
16 not to do so with sufficient time, and not to start the Working Group review until a
17 time when its work would overlap with this trial, that is not reason to stay this
18 injunction now. And, critically, nothing in the injunction prevents the military from
19 developing all the policies and educational programs it needs to; its ability to do so
20 does not depend on the DADT policy remaining in place.
21 Finally, the military has announced that it is now complying with the
22 injunction and has stopped enforcing DADT pending these stay proceedings. See
23 6
The ten-page Declaration of Clifford L. Stanley – who, it now appears, should
have been the government’s 30(b)(6) witness on the topic of “the compatibility or
24 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
25 unit cohesion, combat effectiveness, unit morale, good order, discipline, and
readiness to fight” – goes into excruciating detail of the minutiae of the military’s
26 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
27 the military were forced to adjust to changing conditions “on-the-fly,” while
completely ignoring the Constitutional rights of tens of thousands of homosexual
28 servicemembers.
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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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 20, 2010
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.)
553
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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, re-
accession, 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 1115-
1
Defendants 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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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 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
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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. Ass’n, 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.
557
10/24/2010 Defense.gov Page:
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WASHINGTON, Oct. 14, 2010 – Pending an appeal, the military services have halted discharges
under the “Don’t Ask, Don’t 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 Don’t Ask, Don’t 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 court’s ruling, effective as of the time and
date of the ruling,” he said.
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