No.

10A-465 In The

Supreme Court of the United States

LOG CABIN REPUBLICANS,

Applicant,
vs. UNITED STATES OF AMERICA; and ROBERT M. GATES, Secretary of Defense, in his official capacity,

Respondents.
On Application to Vacate an Order of the United States Court of Appeals for the Ninth Circuit MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE SERVICEMEMBERS UNITED IN SUPPORT OF APPLICATION TO VACATE ORDER STAYING JUDGMENT AND PERMANENT INJUNCTION Raven W. Sarnoff

rsarnoff@sarnofflaw.com David J. Sarnoff dsarnoff@sarnofflaw.com SARNOFF + SARNOFF, APLC 707 Wilshire Boulevard, Suite 4750 Los Angeles, CA 90017 Telephone: (213) 536-4236 Attorneys for Amicus Curiae Servicemembers United

Counsel of Record

1 MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Servicemembers United (SU) 1 respectfully requests leave of the Court to file this Amicus Curiae brief in support of Applicant Log Cabin Republicans Application to Vacate the Order of the United States Court of Appeals for the Ninth Circuit in Case No. 10-56634, entered November 1, 2010, which stayed pending appeal the judgment of the United States District Court for the Central District of California in Case No. 04-CV-08425, entered October 12, 2010 permanently enjoining the government respondents (the United States and the Secretary of Defense) from enforcing and applying the Don't Ask, Don't Tell Act, 10 U.S.C. section 654, and its implementing regulations (DADT). Servicemembers United, a non-profit and nonpartisan organization, is the nation's largest organization of gay and lesbian troops and veterans and their supporters. SU engages in organizing, education, and advocacy on the issues that impact

Pursuant to Rule 37.6, Amicus Curiae certifies that no counsel

for a party authored the brief in whole or in part, no such counsel made a monetary contribution intended to fund the preparation or submission of the brief, and no person other than

amicus or its counsel made such monetary contribution.

2 the gay military, veteran, and defense community. SU was founded by gay and lesbian troops and veterans in order to provide a way for those actually affected by DADT to join the movement for its repeal. SUs membership consists of active duty gay and lesbian servicememmbers, veterans, and other individuals who recognize that discrimination is not an American value. Written consent to the filing of this brief was granted by Applicants Log Cabin Republicans. SU requested consent to the filing of this brief from Respondents United States of America and the Secretary of Defense (the Government), but could not obtain such consent prior to printing despite diligent efforts. SU recognizes that there is no express authority for amicus briefs to be filed in connection with the instant Application, and therefore respectfully requests the Court to exercise its inherent authority over the docket and allow the filing of the instant brief.

3 For the foregoing reasons, Amicus Curiae SU respectfully requests that the Court grant SU leave to file the accompanying Amicus Curiae brief in the instant proceeding. Respectfully Submitted, November 9, 2010
By: s/ Raven W. Sarnoff

Raven W. Sarnoff

rsarnoff@sarnofflaw.com David J. Sarnoff dsarnoff@sarnofflaw.com SARNOFF + SARNOFF, APLC 707 Wilshire Boulevard, Suite 4750 Los Angeles, CA 90017 Telephone: (213) 536-4236 Attorneys for Amicus Curiae Servicemembers United

Counsel of Record

TABLE OF CONTENTS Page Table of Contents ......................................................... i Table of Authorities ....................................................... iii Interest of Amicus Curiae ...............................................1 Summary of Argument....................................................2 Argument .........................................................................4 A. Other Interested Parties and the Public Will Suffer Substantial and Irreparable Harm if this Court Declines to Vacate the Stay............................................................4 1. A Continued Stay Will Permanently Preclude Countless Gay and Lesbian Citizens and Veterans from Enlisting and Re-enlisting in the Military ..............5 a. Sergeant Kevin Forte..........................8 b. Sergeant Brian Fricke.........................9 c. Specialist Jarrod Chlapowski.......... 10 d. Brad Beckett ..................................... 10 e. Chris Robinson ................................. 11 2. A Continued Stay Will Substantially and Irreparably Harm SU and its Members Free Speech Rights............... 11 3. A Continued Stay Will Substantially and Irreparably Harm SUs Right of Association.............................................. 13

ii 4. A Continued Stay Will Substantially and Irreparably Harm SUs Right to Petition the Government for Redress of Grievances .......................................... 14 5. A Continued Stay Will Substantially and Irreparably Harm the Public......... 15 B. The Harm to Interested Parties and the Public if this Court Upholds the Stay Sharply Outweighs Any Alleged Harm to the Government if it Vacates the Stay .. 16 1. The Militarys Voluntary Increase of the Authority Required to Discharge under DADT Demonstrates the Absence of Need for a Continued Stay ................ 17 2. The Military Suffered No Irreparable Harm During DADTs Injunction Last Month ...................................................... 18 3. The Military Suffered No Irreparable Harm During Voluntary Suspensions of DADT During Periods of Heightened Conflict ............................... 20 Conclusion ..................................................................... 23

iii

TABLE OF AUTHORITIES CASES ....................................................................... Page

Golden Gate Rest. Assn v. City and County of San Francisco

512 F.3d 1112 (9th Cir. 2008) .......................... 4

Hilton v. Braunskill
481 U.S. 770 (1987) ....................................... 4-5

NAACP v. Alabama, ex rel. Patterson

357 U.S. 449 (1958) ........................................ 13 STATUTES 10 U.S.C. 654............................................................ 3

1 INTEREST OF AMICUS CURIAE Servicemembers United (SU), a non-profit and non-partisan organization, is the nation's largest organization of gay and lesbian troops and veterans and their supporters. SU engages in organizing, education, and advocacy on the issues that impact the gay military, veteran, and defense community. SU was founded by gay and lesbian troops and veterans in order to provide a way for those actually affected by the Don't Ask, Don't Tell Act, 10 U.S.C. section 654, and its implementing regulations (DADT), to join the movement for its repeal. SUs membership consists of active duty gay and lesbian servicememmbers, veterans, and other individuals who recognize that discrimination is not an American value. Based on its extensive work in support of gay and lesbian troops and veterans, including its efforts to repeal DADT, SU is uniquely qualified to assist the Court in the instant case.

2 SUMMARY OF ARGUMENT On November 1, 2010, the United States Court of Appeals for the Ninth Circuit issue a stay pending appeal of the October 12, 2010 judgment of the United States District Court for the Central District of California permanently enjoining enforcement of DADT. As a result of the Ninth Circuits ruling, the Government may continue to investigate and discharge brave and honorable service men and women solely because of their sexual orientation. SU submitted an Amicus Curiae brief in support of the Log Cabin Republicans Opposition to the Governments Emergency Motion for Stay Pending Appeal under Circuit Rule 27-3 and for Temporary Administrative Stay pending appeal of the District Courts October 12, 2010 injunction of DADT. SU set forth in its Amicus Curiae brief to the Ninth Circuit the manner in which the requested stay would cause substantial and irreparable harm to SUs individual members, the organization itself, and the public, which would sharply outweigh the harm claimed by the Government if DADT remained enjoined. It is unclear from the Ninth Circuits November 1, 2010 order staying the District Courts injunction of DADT pending appeal whether the Ninth Circuit court considered the harms outlined in

3 SUs Amicus Curiae brief that would result if the Ninth Circuit granted the requested stay. We, therefore, respectfully request that this Court consider the substantial and irreparable harm SU, its members, and the public will suffer if the stay issued by the Ninth Circuit is not vacated and DADT remains in effect pending appeal.

4 ARGUMENT If this Court denies Log Cabin Republicans Application to vacate the Ninth Circuits order staying the District Courts injunction of DADT, SUs members, the organization, and the public will suffer substantial and irreparable harm which sharply outweighs any harm the Government will incur if the stay is vacated. A. Other Interested Parties and the Public Will Suffer Substantial and Irreparable Harm if this Court Declines to Vacate the Stay In deciding whether to grant the Governments motion to stay of DADTs injunction pending appeal, the Ninth Circuit court was to consider (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Golden Gate Rest. Assn v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776

5 (1987)). However, the Ninth Circuit seemed not to have considered the substantial and irreparable harm interested parties, particularly SU and its members, and the public will suffer as a result of the stay. As advocates and educators on issues affecting the gay military, veteran, and defense community, SU respectfully requests the opportunity to bring to the Courts attention the concrete, substantial, and irreparable harms SUs members, the association, and the public will suffer if this Court declines to vacate the stay. 1. A Continued Stay Will Permanently Preclude Countless Gay and Lesbian Citizens and Veterans from Enlisting and Re-enlisting in the Military Unless this Court grants the instant Application to vacate the stay of DADTs injunction, countless gays and lesbians who seek to enlist or reenlist in the military will suffer substantial and irreparable harm during the stay. Tens of thousands of brave and patriotic servicemembers have either been discharged or have left the military due to the emotional and psychological burdens placed on them by this unconstitutional policy. Many of these servicemembers, as well as civilians who never enlisted due to DADT, will seek to reenlist or enlist for the first time if this Court vacates

6 the stay and DADT is enjoined. However, because the military branches have strict age limitations for enlistment and re-enlistment, 2 if this Court does not vacate the stay, a significant number of these courageous individuals will age-out during the stay and forever lose the opportunity to serve their country. Because the military imposes similar age limits for becoming a commissioned officer, continued enforcement of DADT will also cause numerous gays and lesbians seeking to commission or re-commission to "age-out" of the opportunity to become commissioned officers. These individuals who will age-out during the stay will certainly suffer substantial and irreparable harm if the stay remains in effect.

2 For

example, in order to enlist in the Air Force for active duty

without prior service, an individual must be 27 years old or younger. Likewise, 28 years old is the limit for the Marines, 34 for the Navy, and 42 for the Army. Servicemembers who wish to re-enlist may have their prior service considered and may have the age limit waived. However, there is no guarantee of receiving an age waiver, and this decision is in the discretion of the person handling the enlistment application. Each military branch treats those with prior service differently with respect to enlistment and commissions.

7 The potential harm of a continued stay is even greater for enlistees and commissioned officers already discharged under DADT and those who may be discharged under DADT during the stay. Once servicemembers leave the military, it becomes harder every day to return, especially for commissioned officers. After a certain period of time, some branches will not restore servicemembers to the position they left. Returning servicemembers may also be demoted in rank, thereby losing status, pay, and benefits, and may be required to repeat basic training. Therefore, each day the stay remains in effect, it becomes more difficult for servicemembers affected by DADT to return to active duty. The substantial and irreparable harm these honorable gay and lesbian civilians and discharged servicemembers will suffer during the stay is not merely speculative. Staying the injunction pending appeal will foreclose the opportunity for many of these individuals to join the military, join the service branch of their choice, become commissioned officers, or restore military careers destroyed by DADT. When DADT is ultimately overturned on appeal, the military will have also lost the service of countless highly-skilled servicemembers who would have otherwise served their country during the stay. Many individuals ousted from their military careers

8 under DADT are highly-trained soldiers and officers whose skills the military certainly needs. Their talents, and the effort and expense put forth by the military to train them, will be for naught if this Court upholds the stay. If appeal of this case takes the typical year or more for completion, numerous individuals hoping to serve their country will age-out during the stay. The following examples of SU members who want to enlist, re-enlist, or commission, but who will likely age-out during the next year or more, represent the real and imminent harm that countless individuals will suffer if this Court declines to vacate the stay.

a. Sergeant Kevin Forte

Sergeant Kevin Forte, a current SU member, is a decorated veteran who left the Marines due to the enormous psychological toll exacted upon him serving under DADT. During his service, he received the Navy and Marine Corps Achievement Medal, Marine Corps Good Conduct Medal, Combat Action Ribbon for his service in Iraq, Marine Corps Overseas Ribbon, Marine Security Guard Ribbon, Global War On Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Ribbon, Navy Meritorious Unit Commendation Medal, Presidential Unit Citation Navy, Meritorious Mast, and

9 Certificate of Appreciation. Sergeant Forte would undoubtedly still be a Marine but for the distress he suffered as a result of being forced to hide his sexual identity to avoid discharge under DADT. If the Court declines to vacate the stay, Sergeant Forte will likely never have the opportunity to rejoin his ranks, as he is currently 27 years old and will soon become ineligible to re-enlist or be commissioned in either the Marines or the Air Force.

b. Sergeant Brian Fricke

Sergeant Brian Fricke, an SU member, served in the Marines for five years before leaving the service because of DADT. As a Marine, Sergeant Fricke received the Meritorious Mast, Letter of Achievement, two Navy Marine Corps Achievement Medals, Good Conduct Medal, Global War on Terror Service Medal, Global War on Terror Expeditionary Medal, National Defense Medal, and the Iraq Campaign Medal. Sergeant Fricke is interested in returning to the service if DADT is enjoined. However, because he turns 28 years old this month, Sergeant Fricke will likely be forever barred from becoming a commissioned Marine officer. Therefore, if the stay is upheld, not only will Sergeant Fricke lose the opportunity to serve his country, the military and the American public will lose the services of a highly skilled, trained, and decorated soldier.

10

c. Specialist Jarrod Chlapowski

Specialist Jarrod Chlapowski, a 28-year-old SU member, served in the Army for five years before leaving the service because of DADT. Specialist Chlapowski received numerous awards, medals, and commendations for his service including the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Korea Defense Service Medal, Non Commissioned Officer Professional Development Ribbon, Army Service Ribbon, and Global War on Terrorism Service Medal. Specialist Chlapowski wants to return to the service in the Marines, but he will soon exceed the age limitation to be commissioned as a Marine officer. Specialist Chlapowski, therefore, will likely suffer irreparable harm if the stay is upheld.

d. Brad Beckett
Brad Beckett, a 26-year-old gay civilian and SU member, wants to join the Air Force, but cannot because of DADT. If the stay remains in effect beyond the next 12 months, Beckett will lose the opportunity to ever join the Air Force because the Air Force requires enlistees to be no older than 27 years of age. Thus, a lengthy stay will effectively preclude Beckett from ever serving in the Air Force.

11

e. Chris Robinson
Chris Robinson, a 33-year-old gay civilian and SU member, also wants to join the military, but is barred from doing so by DADT. Robinson, who will be 34 years old this month (November 2010), will very likely be prohibited from enlisting in the Navy, and will be ineligible to become a commissioned officer in the Army, Navy, or Air Force if this Court upholds the stay. As demonstrated by these examples of SU members, a continued stay of DADTs enforcement will cause substantial and irreparable harm to many the gay and lesbian individuals who want to serve their country and defend it from the many challenges we will likely face, but who will likely age-out during the stay if it is upheld. 2. A Continued Stay Will Substantially and Irreparably Harm SU and its Members Free Speech Rights If this Court declines to vacate the stay, DADT will continue to infringe upon SU and its members First Amendment free speech rights every day that it remains in effect. Approximately one-third of SUs members are active duty gay and lesbian servicemembers forced by DADT to conceal their sexual orientation. Not only does DADT silence these servicemembers daily speech regarding their

12 personal lives, identity, and feelings, it also prevents the very people affected by DADT from speaking out against the policy. Every day that DADT remains in effect is another day that the voices of the very people injured by the policy remain silenced and unable to advocate on their own behalf. Not only does this diminish SUs effectiveness, it also squelches public discourse by active duty gay and lesbian servicemembers regarding all aspects of gay rights (e.g. gay marriage, adoption, etc.) for fear of discharge under DADT. SU was founded to give a voice to gay and lesbian servicemembers affected by DADT and provide a way for them to join the movement for DADTs repeal. However, it is not a perfect solution. SUs very existence is only necessary because DADT prevents self-advocacy by the individuals actually affected by the policy. If this Court upholds the stay of DADTs injunction, these servicemembers will suffer substantial and irreparable harm due to continued exclusion from the public discourse regarding DADTs constitutionally while this very issue is on appeal.

13 3. A Continued Stay Will Substantially and Irreparably Harm SUs Right of Association If this Court declines to vacate the stay, DADT will also continue to infringe upon SU and its members constitutional right of association. The freedom of association is an essential part of the freedom of speech because, as noted by the United States Supreme Court in NAACP v. Alabama, ex rel.

Patterson, 357 U.S. 449, 460 (1958), in many cases,

effective speech can only happen when people join together. In Patterson, the Supreme Court overturned a state law compelling disclosure of the NAACPs membership because it found it to be an unconstitutional restraint on association that may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. Id. at 463. DADT similarly restrains SUs right of association by dissuading active duty gay and lesbian servicemembers from joining and publicly participating in SU for fear that doing so will arouse suspicion about their sexual orientation. For example, many gay and lesbian servicemembers choose not to join or actively participate in SU

14 because of the risk doing so could pose to their military careers. By dissuading servicemembers from joining or publically participating in SU, DADTs continued enforcement compromises SUs mission to educate and advocate on behalf of gay and lesbian servicemembers. For every servicemember who chooses not to join or actively participate in SU for fear of reprisal under DADT, not only is the size and efficacy of SUs membership diminished, so too is the diversity of ideas and perspectives that might otherwise flourish. Every day that DADT remains in effect, the gay and lesbian servicemembers who choose not to join or actively participate in SU, as well as the organization itself, suffer substantial and irreparable harm. 4. A Continued Stay Will Substantially and Irreparably Harm SUs Right to Petition the Government for Redress of Grievances Every day that DADTs injunction is stayed, active duty gay and lesbian servicemembers will suffer substantial and irreparable harm because they are precluded from exercising their First Amendment right to Petition the Government for redress of grievances. One-third of SUs membership, the gay and lesbian troops actively serving in the military, is precluded from petitioning

15 the government to seek changes regarding its policies toward gays and lesbians, including DADT and all other aspects of gay rights (e.g. gay marriage, etc.). Moreover, countless gay and lesbian servicemembers never join organizations such as SU that promote gay rights for fear of career-ending dismissal under DADT. Thus, if this Court upholds the stay pending appeal, the voices of those oppressed by DADT will be silenced from petitioning the government for redress of their grievances regarding the very policy that silences them, at the very time the policys constitutionality is on appeal. 5. A Continued Stay Will Substantially and Irreparably Harm the Public The continued stay of DADTs injunction will also inflict substantial and irreparable harm on the public. DADT infringes upon the First Amendment rights of speech and association of every person who is a family member, friend, spouse, or partner of a gay or lesbian servicemember. Every person close to a gay or lesbian servicemember is involuntarily enlisted in hiding the truth about the servicemembers sexual orientation. They must censor their written and public communications, avoid associating with certain people or in certain places, and repress behavior that may arouse suspicion about the servicemembers sexual

16 orientation. As recognized by SUs civilian and/or heterosexual membership, DADT substantially and irreparably harms the public every day that it remains in effect by enforcing and condoning unconstitutional discrimination that is wholly inconsistent both with the militarys mission to safeguard and advance freedom, as well as the American publics interest in freedom and equality under the law. B. The Harm to Interested Parties and the Public if this Court Upholds the Stay Sharply Outweighs Any Alleged Harm to the Government if it Vacates the Stay In its Ninth Circuit motion for a stay of DADTs injunction pending appeal (Ninth Circuit Motion for Stay), the Government speculated that the military would sustain irreparable harm absent the requested stay because it would interfere with the militarys efforts to devise an orderly end to DADT. However, the militarys own voluntary response to the District Courts October 12, 2010 injunction of DADT, as well its historical willingness to suspend DADT during periods of heightened conflict, belies the Governments argument. Moreover, any negligible harm the military might sustain from DADTs immediate injunction is clearly outweighed by the continued deprivation of

17 constitutional rights interested parties such as SU, its membership, and the public will suffer if the stay is granted. 1. The Militarys Voluntary Increase of the Authority Required to Discharge under DADT Demonstrates the Absence of Need for a Continued Stay The Government also surmised in its Ninth Circuit Motion for Stay that the military would fall into administrative disarray if the Ninth Circuit court denied the requested stay. Quite to the contrary, however, the military has responded to DADTs inevitable demise efficiently and cooperatively. As early as March 25, 2010, the military raised the authority to initiate investigations and approve discharges under DADT to the one-star general level. 3 On October 21, 2010, Defense Secretary Robert Gates raised the level of authority required to approve DADT discharges to the armed services secretaries under consultation with the Under Secretary of Defense for Personnel and Readiness and the General Counsel of the

Before March 25, 2010, the authority to initiate an

investigation under DADT was usually vested in a company commander, and the authority to sign-off on a DADT discharge generally rested with a brigade commander.

18 Department of Defense. By raising this authority to such a high level, Gates directive effectively requires the military to comply with District Court injunctions order to suspend discharges under DADT. The higher in the chain of command approval of discharges lies, the fewer discharges will be referred up the chain and the longer the discharge process will be. 4 The militarys voluntary compliance with at least half of the District Courts injunction makes it clear that a stay pending appeal is not necessary to effectuate an orderly end to DADT. 2. The Military Suffered No Irreparable Harm During DADTs Injunction Last Month The Government further failed in its Ninth Circuit Motion for Stay to identify any harm suffered by the military during the approximately one-week period DADT was enjoined. On October 12, 2010, all service branches ordered immediate cessation of all discharges and investigations under DADT in compliance with the District Courts injunction.

Prior to Gates October 12, 2010 memorandum, discharging an

officer, which required approval at the service secretary level, typically took 12 to 16 months. Discharging an enlistee, which did not require service secretary approval prior to the memorandum, typically took only one week to two months.

19 Contrary to predictions by DADT defenders, six days after the injunctions issuance, a Pentagon spokesman admitted that no disciplinary problems or mass-resignations were reported. 5 Similarly, when asked on October 26, 2010 whether the flip flop of rulings regarding DADT had caused any disruption or confusion in the war zone, Brigadier General Joseph Osterman, the Marine Corps general in command of the 1st Marine Division Forward and Task Force Leatherneck, stated uncategorically that it had not. Osterman said, down on the ground level here in Afghanistan, there is no impact at all. . . . They understand that, as Marines, well follow whatever laws are in place, and also whatever policies are promulgated by the Secretary of Defense. 6 The fact that the military immediately

Michael Bowman, Judicial Battle Continues Over Repeal of

Openly-Gay Military Service Ban, Voice of America,

http://www.voanews.com/english/news/usa/Judicial-BattleContinues-Over-Repeal-of-Openly-Gay-Military-Service-Ban105281723.html.
6

Jeanette Steele & Gretel C. Kovach, Survey Leak Could Alter

Debate of Dont Ask, Don't Tell, SAN DIEGO UNION TRIB.,

October 29, 2010, available at http://www.signonsandiego.com/news/2010/oct/29/survey-leakcould-alter-dont-ask-debate/; see also Bill Gertz, Inside the

20 complied with the District Courts injunction without suffering any harm, let alone irreparable harm, further supports vacating the stay. 3. The Military Suffered No Irreparable Harm During Voluntary Suspensions of DADT During Periods of Heightened Conflict Although the military has maintained an official policy of excluding gays and lesbians since World War II, enforcement has fluctuated relative to the personnel needs of the military. 7 The military relaxes restrictions on gays serving in the military during periods of heightened conflict pursuant to stop-loss orders issued by the president.8 During

Ring; Dont Ask in Afghanistan, WASH. TIMES, October 27, 2010,

at 4 5, available at http://www.washingtontimes.com/news/2010/oct/27/inside-thering-379165238/.
7

Rhonda Evans, Center for the Study of Sexual Minorities in

the Military, Institute for Social, Behavioral, and Economic Research, UC Santa Barbara, U.S. Military Policies Concerning Homosexuals: Development, Implementation and Outcomes 1516, 22 (2001).
8

Id. Discharge statistics corroborate a pattern of rising

expulsions during peacetime and plummeting rates during military conflicts, and Pentagon statistics confirm that, as has

21 the first Gulf War, President George H. W. Bush invoked a stop-loss order allowing suspension of discharge proceedings, including those under DADT. 9 Similarly, three days after the terrorist attacks of 9/11, President George W. Bush signed an executive order that authorized the service branches to initiate a stop-loss allowing (but not ordering)

been the case in every war since World War II, gay discharges have declined during the current conflict in the Middle East. Press Release, Geoffrey Bateman, Center for the Study of Sexual Minorities in the Military, University of California, Santa Barbara, Researchers Locate Army Document Ordering Commanders Not to Fire Gays (September 13, 2005), http://www.palmcenter.org/press/dadt/releases/researchers_loca te_army_document_ordering_commanders_not_to_fire_gays; DADT Discharges by Fiscal Year 1994-2009 from Servicemembers United (based on data from the Office of the Secretary of Defense, the Department of Homeland Security, and the Army National Guard Bureau), http://dadtarchive.org/ (2010) (charting the decline in discharges of gay and lesbian troops by approximately one-third after 9/11, and the same after the U.S. invasion of Iraq).
9

Nathaniel Frank, Ph.D., Palm Center, Research Note on

Pentagon Practice of Sending Known Gays to War 2 (July 1, 2007).

22 the military to suspend laws relating to separation of military personnel, presumably including DADT. 10 Not surprisingly, given that DADT itself requires gays and lesbians to be discharged regardless of whether the country is at war, the military has consistently denied that it suspends DADT during periods of heightened conflict. However, the military could no longer deny this practice when, in 2005, researchers discovered a regulation in the "Reserve Component Unit Commander's Handbook" which stated that if a discharge for homosexual conduct is requested "prior to the unit's receipt of alert notification, discharge isn't authorized. Member will enter AD [active duty] with the unit." 11 In light of the fact that the military voluntarily suspends DADTs enforcement where

10 11

Id. at 2.
Press Release, Geoffrey Bateman, Center for the Study of

Sexual Minorities in the Military, University of California, Santa Barbara, Researchers Locate Army Document Ordering Commanders Not to Fire Gays (September 13, 2005), www.palmcenter.org/press/press-releases; FORSCOM Regulation 500-3-3 Volume III, Reserve Component Unit Commanders Handbook, 15 July 1999, available at http://www.palmcenter.org/files/active/0/200509_forscomReport.pdf.

23 there is a practical need for increased manpower, the Government can hardly demonstrate that vacating the stay will cause the military irreparable harm, since the military itself voluntarily suspends DADT without any deleterious effects. CONCLUSION For all the reasons stated above, Servicemembers United respectfully requests that this Court vacate the stay and reinstate the District Courts judgment immediately and permanently enjoining DADT. Respectfully Submitted, November 9, 2010 By: s/ Raven W. Sarnoff Raven W. Sarnoff

rsarnoff@sarnofflaw.com David J. Sarnoff dsarnoff@sarnofflaw.com SARNOFF + SARNOFF, APLC 707 Wilshire Boulevard, Suite 4750 Los Angeles, CA 90017 Telephone: (213) 536-4236 Attorneys for Amicus Curiae Servicemembers United

Counsel of Record