Log Cabin case against DADT continues forward

Timothy Kincaid

January 29th, 2011

For decades our community has fought for our right to serve in the US Military on the same terms as anyone else. And finally, we have a timeline, a near future, in which such a scenario seems likely. And for most of us, the end to this offensive and unnecessary ban is more important than the way in which it is ended. Just so long as the long wait is over.

But the manner by which Don’t Ask, Don’t Tell – and the pre-existing ban is moderated – comes to a halt has a great deal of impact on other matters of importance to our community. There are both positives and negatives to both the judicial and the legislative solution.

If the courts strike this ban down as discriminatory, then it sets continuing precedent that anti-gay discrimination is in violation to the US Constitution. But this can have the effect of appearing to be “judicial activism” overriding the will of the people’s elected legislature and can be ammunition for the social conservatives’ attack on the US judicial system.

If the legislature provides resolution, this gives a blessing to the solution as being “of the people”, but it also leaves the matter open to future reversals. Additionally, the current projected termination of the anti-gay policy does not prohibit discrimination, it simply ceases the institutionalization of the practice. Of concern is also a threat by some Republicans in the incoming House to find a way to block implementation of the repeal.

Fortunately (and this really rarely happens) we have both legislative and judicial solutions. Congress has voted to reverse DADT and the President is projecting a short implementation. But also, the Federal Court has found that DADT – or, indeed, any arbitrary ban on gay soldiers – violates the US Constitution. And the timing of such is that they are both occurring simultaneously.

In September of last year, Judge Victoria Virginia Phillips found that DADT is unconstitutional. The government appealed, and has been actively fighting that decisions since. Even after Congress acted to reverse DADT during the lame duck session, the government requested that the proceedings be stayed until the ban was lifted and the case become moot.

As I noted above, that would not be in our best interest. And yesterday Judge Phillips the Ninth Circuit Court of Appeals denied those efforts and set a schedule for the case to continue:

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government’s opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans’ answering brief and supplemental excerpts of record are due March 28, 2011; and the government’s reply brief is due 14 days after service of the answering brief.

The best of all possible worlds would be for the courts to conclusively determine that any ban on open gay service is unconstitutional (for the appeal to be denied or dropped) but for the President’s timeline to be administered. It looks as though this is a possibility.


January 30th, 2011

The trial judge was _Virginia_ Phillips, and the most recent motion was heard by the 9th Cir. Court of Appeals, not the trial judge (which is how they set the briefing schedule).

Timothy Kincaid

January 30th, 2011


Wow. I’ve been calling her Victoria Phillips in commentary after commentary and this is the first time I’ve been corrected. How embarrassing.

And you’re also correct that it was Appeals, not Judge Phillips that denied the motion.


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