SAN FRANCISCO – A federal appeals court refused last week to decide the constitutionality of the military’s now-repealed “don’t ask, don’t tell” policy banning openly gay troops, saying the issue has been resolved since Americans can enlist and serve in the armed forces without regard to sexual orientation.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco tossed out a lawsuit on Thursday that had challenged the military policy as a violation of gay service members’ civil rights. In doing so, the appeals court also dismissed a Southern California trial judge’s year-old ruling that the policy was unconstitutional.
The gay rights group Log Cabin Republicans filed the lawsuit in 2004 challenging the policy. The group’s lawyer, Dan Woods, said he would ask the full 9th Circuit to review the panel’s decision.
The group recently argued the lower court ruling, which also barred enforcement of “don’t ask, don’t tell” should remain in effect despite this month’s repeal because future administrations and lawmakers could reintroduce a ban on gay service.
The three judges strongly disagreed in their Thursday opinion, saying the case is moot because there is nothing left to challenge regarding the policy enacted as section 654.
“This suit became moot when the repeal of section 654 took effect on Sept. 20,” the ruling said. “If Log Cabin filed suit today seeking a declaration that section 654 is unconstitutional or an injunction against its application (or both), there would be no Article III controversy because there is no section 654.”
The panel specifically rejected Log Cabins’ assertion that the appeals court should decide the underlying constitutional issues to prevent future limitations or outright bans on military service by gay and lesbian Americans.
“We cannot say with virtual certainty that the Congress that passed the Repeal Act- or a future Congress whose composition, agenda, and circumstances we cannot know- will reenact don’t ask, don’t tell,” the judges said. “We can only speculate, and our speculation cannot breathe life into this case.”
Log Cabin Republicans Executive Director R. Clarke Cooper said he was disappointed, noting that the favorable ruling his group obtained in the lower court played a major role in persuading policy makers to repeal “don’t ask, don’t tell.”
“Log Cabin Republicans v. United States said more than `don’t ask, don’t tell’ should be repealed- it stood for the fundamental constitutional rights of service members not to be discriminated against by the nation they serve,” Cooper said. “This decision by the 9th Circuit denies more than 14,000 discharged gay and lesbian service members an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of service members’ rights.”
One of the three panelists, Judge Diarmuid O’Scannlain, went out of his way in a concurring opinion to dispute that either the U.S. Constitution or the Supreme Court’s interpretation of it provided “a member of the armed forces (with) a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military.”
O’Scannlain also criticized the lower court judge who invalidated “don’t ask, don’t tell” last year, U.S. District Judge Virginia Phillips. He accused Phillips of willfully failing “to apply established law” so she could issue a ruling “that invalidated a considered congressional policy and imposed a wholly novel view of constitutional liberty on the entire United States.”