Tuesday, November 30, 2010

Don't Ask, Don't Tell Report: Recommendations for Repeal of Military Policy

The Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell" has just been issued by the Department of Defense.   Department-of-Defense-logo1

In its 250plus pages, the report concludes that the overall effect of a repeal of the "don't ask don't tell" policy on military effectiveness is low. 

The Report has a number of recommendations necessary - - - or unnecessary - - - to effectuate the repeal:

  • Leadership - strong leadership, a clear message, and proactive training and education are necessary  ("In our view, the starting point for this message should be a written communication
    from the leaders of the Department of Defense, to include the Secretary of Defense and the
    senior military leaders of each Service, that deliver their expectations in clear and forceful
  • Standards of Conduct - revised regarding dating and public displays of affection
  • Moral and Religious Concerns - recognition of pluralism, but not necessary to change policies to guarentee religious freedom or chaplain's regulations.
  • Equal Opportunity -  the Department of Defense should NOT place sexual orientation alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs, tracking initiatives, and the Military Equal Opportunity program complaint resolution processes.
  • Collection and Retention of Sexual Orientation Data - the Department of Defense should continue to NOT seek such data
  • The Uniform Code of Military Justice - the Congressional repeal of Article 125 which criminalizes sodomy, and amend Article 120 of the UCMJ362 to include forcible sodomy and sodomy offenses against children. 
  • Privacy and Cohabitation - the Department of Defense should expressly prohibit berthing or billeting assignments or bathroom facilities assignments based on sexual orientation, except that commanders should retain the authority to alter berthing or billeting assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission.
  • Benefits - many benefits to same-sex partners are prohibited under the Defense of Marriage Act, however for some benefits, such as housing and legal services, the Department of Defense and the Services should review the benefits in this category and assess whether they can be extended to same-sex partners
    in accordance with  “member-designated” benefits rather than spousal benefits.
  • Duty Assignments - the Department of Defense and the Services should not, at this time, rewrite their
    regulations to specifically accommodate same-sex committed relationships for purposes of duty assignments. However, gay and lesbian Service members in committed relationships— with either a civilian or a military partner—should be able to make an individualized, hardship-based request for accommodation in assignment.
  •  Medical - there need not be any change in policies regarding HIV
  • Re-Accession - Service members previously separated on the basis of homosexual conduct to be should be considered for re-entry, assuming they qualify in all other respects.
  • Release from Service Commitments - For those who object to serving with gay and lesbian servicemembers, this shall not constitute a ground for voluntary discharge.

The much anticipated Report occurs against a backdrop of federal courts finding the Don't Ask, Don't Tell policy unconsitutional.


November 30, 2010 in Congressional Authority, Current Affairs, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Saturday, November 13, 2010

DADT: The Supreme Court and the Status Quo

Navy_Nurse As expected, in a brief order on Friday the United States Supreme Court has refused to vacate the Ninth's Circuit's Stay of District Judge Virginia Phillips' injunction against enforcement of the military's "don't ask don't tell" (DADT) policy regarding "homosexuality" in the military on the grounds that it is unconstitutional.

Justice Kagan did not participate in the Supreme Court's deliberations.

Meanwhile, initial descriptions by WaPo regarding a soon-to-be released 370 page report by a Pentagon study group support a conclusion that eliminating DADT would not impede government interests:  "More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent."  


[image "Navy Nurse" circa WWII via]

November 13, 2010 in Current Affairs, Equal Protection, First Amendment, News, Sexual Orientation, Speech | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 9, 2010

Two (more) challenges to DOMA

As the two decisions by Judge Joseph Tauro declaring section 3 of the Defense of Marriage Act (DOMA) are on appeal and being defended by the Obama DOJ, two more challenges were filed today. 

The complaint in Pedersen v. Office of Personnel Management is filed in the District of Connecticut on behalf of five same-sex couples and one survivor of a same-sex couple in Connecticut, New Hamshire and Vermont. The injuries include denials of federal employees and retirees benefits, Social Security benefits, survivor benefits under federal pension laws, and work leave to care for a spouse under the Family Medical Leave Act.  

The complaint in Windsor v. United States is filed in the Southern District of New York on behalf of the survivor of a same-sex couple in New York who were married in Canada.  Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government. 

Both complaints argue DOMA section 3 is a denial of equal protection.  In Judge Tauro's decision in Gill v. Office of Personnel Management, he applied rational basis and found that the government interests - - - the interests used to support the original 1996 DOMA statute and the interest of maintaining the status quo used by the OBAMA DOJ to support the litigation - - - were problematic.  

Two additional judges will be deciding whether or not they agree. 

And, as the NYT reports, the Obama DOJ will have to decide whether to continue its support of DOMA despite some indications to the contrary. 



November 9, 2010 in Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, October 31, 2010

Federalism, Marriage, Perry and DOMA: Sanders on States Amicus Brief

Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.

Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers.   He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."  

The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.


October 31, 2010 in Family, Federalism, Sexual Orientation, Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 27, 2010

Court Conclusions of Unconstitutionality and Government Decisions to Appeal

The Obama DOJ's footnote one in the Emergency Motion appealing the district judge's injunction of the military's "don't ask, don't tell" policy states the DOJ has a "longstanding practice of defending the constitutionality of federal statutes."   But is that really true? 

120px-Doj In an excellent column published today, Tony Mauro thinks not.  He contends that the DOJ has declined to defend the constitutionality of a federal statute "at least 13 times" since 2004.   Indeed, Mauro relates that as recently as June, the Obama DOJ decided not to appeal the D.C. Circuit's opinion in SpeechNow.org v. FEC that declared unconstitutional two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees.   Mauro also provides some other examples that are staples of ConLaw: Buckley v. Valeo (1973) and INS v. Chadha (1983).

Additionally, the stated (if untrue) DOJ policy to defend is in contrast with recent decisions in some states not to defend a statute.  Florida, for example, recently chose not to appeal a decision that its homosexual adoption ban was unconstitutional.   In California, the Governor and the Attorney General both chose not to defend Proposition 8 in a challenge to its constitutionality, and then chose not to appeal the judge's decision.

Meanwhile, the Obama DOJ has filed its notice of appeal of the district judge's ruling that section 3 of the Defense of Marriage Act, DOMA, is unconstitutional. 


October 27, 2010 in Courts and Judging, Current Affairs, History, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Ninth Circuit Grants Stay in Don't Ask Don't Tell

The Ninth Circuit has granted the DOJ Motion and issued an Order staying the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional:

This court has received appellant’s emergency motion to stay the district
court’s October 12, 2010 order pending appeal. The order is stayed temporarily in
order to provide this court with an opportunity to consider fully the issues

Appellee may file an opposition to the motion for a stay pending appeal by
October 25, 2010. To expedite consideration of the motion, no reply shall be filed.


October 20, 2010 in Current Affairs, Due Process (Substantive), First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Obama DOJ Appeals Denial of "Don't Ask Don't Tell" Stay to Ninth Circuit

Judge Phillips denial of the DOJ's motion to stay her injunction of the military's "don't ask don't tell" policy in Log Cabin Republicans v. US is being appealed by the DOJ in an Emergency Motion (with memo) to the Ninth Circuit filed today.  District Judge Phillips original declaration of unconstitutionality is here.

The DOJ memo includes rather cursory constitutional arguments, mainly arguing the doctrine regarding granting a stay.  One argument, however, rests upon the Ninth Circuit's opinion in Witt, essentially that the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), remanded for the district court to determine whether the statute had been validly applied to the plaintiff, which "makes no sense if the Act is unconstitutional on its face."   Thus the "district court’s decision is thus inconsistent with controlling precedent, as well as with numerous appellate decisions upholding various applications of the statute."  The district court in Witt recently ruled that Witt should be reinstated.

Footnote one on the DOJ Emergency Motion, as in the district court pleadings, seeks to distance the Obama Administration from "Don't Ask, Don't Tell," even as it seeks to have the policy reinstated by the Ninth Circuit:

The Administration does not support § 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their

[UPDATE here]


October 20, 2010 in Current Affairs, Fifth Amendment, First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Judge Phillips Denies Motion to Stay Order on "Don't Ask, Don't Tell"

In the latest round of Log Cabin Republicans v. United States, in which Federal District Judge has held the military's policy regarding "homosexuality" in the military unconstitutional, Judge Phillips has issued an Order denying the Government's Request to Stay.

Lt_Dan_Choi_March_on_Washington_2009  Highlights from the Judge's six page Order include an implicit admonishment to the Government attorneys:

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") . . . .  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.

Order at 2-3.

On the "public interest" prong of the stay analysis, the Judge rejected the Government's argument regarding the status quo:

The Court's analysis of the public interest is not so narrow . . .  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 preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.

Order at 6.

For the moment, the military's "don't ask don't tell" policy cannot be enforced.   News outlets, such as SF Chronicle, WaPo, WSJ, USA Today, and CNN report that recruiting offices are refraining from asking about sexual orientation and discharges on the basis of sexuality have ceased.

[UPDATE here]


[image: Lt. Dan Choi advocating for repeal of military policy, via]

October 19, 2010 in Current Affairs, Fifth Amendment, Fundamental Rights, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 12, 2010

Florida will NOT appeal unconstitutionality of "homosexual adoption" ban

The Secretary of the Florida's Department of Families and Children has reportedly stated that it will not appeal the Florida appellate court's ruling declaring unconstitutional the state law banning "homosexuals" from adopting. 

While the intermediate appellate court opinion noted that its ruling was "unlikely to be the last word," it may be.  Under Florida constitutional interpretations, the appellate court ruling would bind all courts unless and until there was another ruling.  However, the state attorney general could possibly file a notice of appeal, despite the Secretary's decision (presumably made in consultation with the governor).

However, as of today, the homosexual ban remains on the state agency's website:




October 12, 2010 in Equal Protection, Family, Fundamental Rights, Recent Cases, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Obama DOJ Appeals Decision that DOMA Section 3 is Unconstitutional


Recall the two decisions of United States District Judge Joseph Tauro holding section 3 of the Defense of Mariage Act (DOMA) unconstitutional: Commonwealth of Massachusetts v. HHS  and Gill v. Office of Personnel Management. 

The Obama Department of Justice has filed its notices of appeal to the First Circuit today.

DOMA Section3


October 12, 2010 in Family, Federalism, Fourteenth Amendment, Sexual Orientation, Sexuality, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Don't Ask, Don't Tell Military Policy Enjoined by Federal Judge

In a brief order today, federal district judge Virginia Phillips, Central District of California, has permanently enjoined the military's "don't ask, don't tell" policy.  The judge had previously ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment.

In today's order, the judge:   421px-USarmydefineshomosexuality

(1) DECLARES that the act known as "Don't Ask, Don't Tell" 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) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

The judge also allows the Plaintiff, Log Cabin Republicans, attorneys fees.





image via

October 12, 2010 in Due Process (Substantive), First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 6, 2010

Snyder v. Phelps, the military funeral protest case: Background

Background on Snyder v. Phelps, the oral argument discussed above

Phelps achieved notoriety with his protests at the funerals of military persons.  Under the organization of the Westboro Baptist Church, consisting of Phelps and his family, the message of Phelps' protests is "godhatesfags" (which is the name of the website and the motto on the signage).  Earlier in his career, Phelps protested lesbian and gay events (full disclosure: a lecture I gave was once picketed by Phelps), including most notably the funeral of Matthew Shepard.  More recently, Phelps has directed his protests at funerals of military persons, despite the military's "don't ask, don't tell policy" with regard to homosexuality.  Phelps' Brief on the merits argues that the "purpose of picketing in connection with funerals is to use an available public platform, when the living contemplate death, to deliver the message that there is a consequence for sin," and military funerals are appropriate because “when soldiers die in the Iraq and Afghanistan wars, their funerals are highly publicized events, with extensive media coverage of their lives, deaths and funerals.”   (Brief at 3-4).   As a result of Phelps' picketing, numerous states and localities have passed laws that seek to regulate funeral protests consistent with time, place and manner doctrine under the First Amendment.  The case before the Court, however, does not involve a direct application of such a law, but a suit for intentional infliction of emotional distress by Albert Snyder, the father of a soldier who died in Iraq.  The jury awarded Snyder over $10 million in damages, the district judge remitted the bulk of the punitive damges for a total award of $5 million, and the Fourth Circuit reversed in an opinion available here.

The case is undoubtedly controversial, as Lyle Dennison at SCOTUSblog discusses.  It has attracted a wide array of amicus briefs; an interesting analysis of the amicus briefs in the case (including bestowal of the "Mugwump" award and the "Wait a Minute" award) is from ConLawProf Wilson Huhn.

October 6, 2010 in First Amendment, Fourteenth Amendment, Fundamental Rights, Recent Cases, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 29, 2010

First Amendment Protects Michigan Assistant AG's "Political Campaign" Against University Student President?

UPDATE: The Michigan Assistant AG has been terminated.

UPDATE: The Michigan Assistant AG has apparently taken a "leave of absence."


The CNN report by Anderson Cooper is worth watching:



The blog "Chris Armstrong Watch,"  by the Assistant AG is entirely devoted to Chris Armstrong, the student body president.  The Michigan student newspaper has quoted the statement of Michigan AG Mike Cox:

“All state employees have a right to free speech outside working hours,” Cox said in a statement yesterday, according to the Free Press. “But Mr. Shirvell’s immaturity and lack of judgment outside the office are clear.”

For ConLawProfs looking for an in-class exercise testing the limits of Pickering as well as discussing Garcetti v. Ceballos this would make good material.

RR   (h/t Steve Sanders)

September 29, 2010 in Current Affairs, First Amendment, Sexual Orientation, Speech, Teaching Tips, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, September 24, 2010

Don't Ask, Don't Tell: Unconstitutional as Applied to Major Margaret Witt

In an opinion today, Judge Ronald Leighton of the Western District of Washington, concluded:

The application of “Don't Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.

Opinion at 14-15.  The Judge entered his opinion after the case on remand from the Ninth Circuit on the plaintiff’s substantive and procedural due process claims.  Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008).  "On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest." Witt, 527 F.3d at 821. 

401px-Margaret_Witt_01 The standard to be applied was "something more than traditional rational basis review."  Opinion at 2. As the Court understood the Ninth Circuit standard, to  "survive plaintiff’s constitutional challenge, the statute must (1) advance an important governmental interest, (2) the intrusion must significantly further that interest, and (3) the intrusion must be necessary to further that interest." Opinion at 7.

Regarding the first requirement, the Court noted that the parties agree "that the important government interest is directed at unit morale, good order, discipline, and cohesion."  Opinion at 9.  But the Court found that the Don't Ask, Don't Tell (DADT) policy's application to Witt  did not advance a government interest, but indeed, to "the contrary, the actions taken against Major Witt had the opposite effect."  Opinion at 11.

This finding - - - that the government interest that the DADT policy is intended to serve is actually undermined by the DADT policy - - - is similar to the finding by Judge Virginia Phillips earlier this month in her opinion concluding the DADT policy is unconstitutional.

The Seattle Times has the comments of Judge Leighton after he delivered his opinion - - - a statement that acknowledges that Margaret Witt will face additional obstacles.


[image: Margaret Witt, via]

September 24, 2010 in Due Process (Substantive), Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 22, 2010

Florida appellate court: homosexual adoption ban unconstitutional

A Florida appellate court has declared Florida's ban of adoption of children by "homosexuals" unconstitutional.  The 42 page  opinion by the Third District Court of Appeal, affirms the finding of a trial court in late 2008, which we discussed here.

The appellate court relied upon the equality clause of the state constitution, Art. I, § 2, Fla. Const. ("All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property...").  


The court used a rational basis level of scrutiny, noting that the Florida Department of Children and Families "has argued that evidence produced by its experts and F.G.’s experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department’s position. We conclude that there is no rational basis for the statute."  Opinion at 26.

The appellate court observed that Florida was the only state to have such a ban.  [Recall the Arkansas attempt which we discussed here].    And in footnote 1, the court stated:

We note that our ruling is unlikely to be the last word. The Florida Constitution states that a party may appeal to the Supreme Court of Florida when there is a
decision of a district court of appeal “declaring invalid a state statute.” Art. V, §
3(b)(1), Fla. Const.

Presumably, the state will appeal.


[image: Porträt des Bildhauers Aubé mit seinem Sohn, by Paul Gauguin, via]

September 22, 2010 in Equal Protection, Family, Fundamental Rights, Opinion Analysis, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, September 9, 2010

Don't Ask Don't Tell Unconstitutional: California Federal Judge Rules

In an 86 page opinion issued today, federal district judge Virginia Phillips, Central District of California, ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment. 

The don't ask, don't tell policy, codified at 10 U.S.C. § 654 requires that a member of the Armed Forces "shall be separated" from military service under one or more of the following circumstances.  421px-Dontaskdonttellcredible

  • First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." 
  • Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . .
  • Finally, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex."
It has been a controversial policy, with a recent attempt by Senator Lieberman to "repeal" it, previous litigation including a denial of a petition for a writ of certiorari by the Supreme Court, special impact on women in the military, and unfulfilled expectations that Obama would advocate for repeal. 

In Judge Phillips' opinion in Log Cabin Republicans v. United States, she found that the plaintiff organization, Log Cabin Republicans, met the standing requirements.  Judge Phillips also repeatedly noted that "Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act."   The judge carefully recited the extensive testimony from the Plaintiff. 

Interestingly, the judge found not only that the government's articulated interest in military readiness and unit cohesion was not served by the policy, but that the policy actually undermined the government interests:

Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness.

In her consideration of the substantive due process claim, the judge articulates the standard as a heightened one appropriate to government action "implicating fundamental rights."  She writes that the United States Supreme Court's decision in Lawrence v. Texas, recognized the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

On the First Amendment claim, the judge found that don't ask, don't tell is a content-based restriction on speech: it "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted."  Notwithstanding this conclusion, she notes that military speech is subject to a lesser standard: it must ""restrict speech no more than is reasonably necessary to protect the substantial government interest."  She concluded that the don't ask, don't tell policy are broader than necessary to protect the government's interest, reasoning that the policy reaches private e-mail messages, private letters in a "foreign language." 

The judge has given the Plaintiff until September 16 to submit a proposed judgment with a permanent injunction.  It may be a safe assumption that the government will request a stay.


[image via]

September 9, 2010 in Congressional Authority, Current Affairs, Fifth Amendment, First Amendment, Opinion Analysis, Sexual Orientation, Sexuality, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 1, 2010

Petition to Mandate California Governor File an Appeal in Perry v. Schwarzenegger (Proposition 8) Decision


The possibility that the "proponents" of Proposition 8 who participated in the trial but may nevertheless lack standing to appeal has provoked a petition in state court to require the  Governor or the Attorney General to appeal.

490px-Arnold_Schwarzenegger The petition and supporting memorandum in Beckley v. Schwarzenegger, filed in a California state appellate court, seeks an alternative writ of mandamus to compel Governor Schwarzenegger (pictured right) and State Attorney General Jerry Brown to file a notice of appeal by the deadline of September 11, 2010.  

The petition argues that under state law and the state constitution, the defendants have a duty to defend Proposition 8.  The petition argues that defending a law challenged on the basis of its constitutionality is required, unlike the decision whether or not to enforce a law.  The petition also contends that filing a notice of appeal is a "ministerial" duty that cannot be evaded and is subject to a writ of mandamus.

The memorandum argues that the failure to perform the "minimal acts necessary" to ensure jurisdiction in the Ninth Circuit Court of Appeals is tantamount to a "constructive pocket veto" of a constitutional amendment, which "does violence to the State's constitutional form of government."   This, the petition alleges, is "taking on a power which violates the social contract between the people and the governed, memorialized in the Constitution."  (Petition and Memo, at 27). 


September 1, 2010 in Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (2) | TrackBack (0)

Monday, August 16, 2010

Ninth Circuit Stays Perry v. Schwarzenegger, Proposition 8's Unconstitutionality

A panel of the Ninth Circuit. has stayed Judge Walker's decision finding Proposition 8 unconstitutional, thus vacating Walker's decision lifting the district judge's own stay.  In other words, Proposition 8, prohibiting same-sex marriages, is again the law of California.

The very brief opinion states in full:

Appellants’ motion for a stay of the district court’s order of August 4, 2010
pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of
Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not
apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010.The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).


Recall that the district judge raised the issue of lack of standing by the "proponents."  The Ninth Circuit panel seems to be taking the issue of standing - - - or lack thereof - - - quite seriously. 


August 16, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)

Sunday, August 15, 2010

Trial Court Issues TRO in Second Round of Doe v. Reed

Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court can schedule a hearing and rule on the merits.  Washington's domestic partnership law extends the benefits of marriage to state-registered domestic partners, including same-sex domestic partners.

The case is a continuation of the Supreme Court case Doe v. Reed issued earlier this summer.  In that case, the R-71 petition sponsor and certain signers argued that the Washington Public Records Act, which compelled disclosure of signers' names and addresses, violated the First Amendment for all referendum petitions (and not just the R-71 petition).  Plaintiffs alleged that petition signers would be subject to threats and harassment from supporters of Washington's domestic partnership law if their names and address were released.  The Supreme Court treated the claim as a facial challenge and rejected it.  The Court held that Washington had a sufficient interest in preserving the integrity of the electoral process, and that disclosure was sufficiently related to that interest because it complemented the Secretary's own signature verification process and thus helped to root out fraud and mistakes.  The Washington PRA thus satisfied the "exacting scrutiny" standard, requiring a substantial relation between the disclosure requirement and a sufficiently important government interest, in general.

The Court declined to rule on a second issue, whether the disclosure requirement violated the First Amendment as applied in this case.  (Plaintiffs raised this second issue in their original complaint, but the lower courts did not rule on it.)  The Supreme Court expressly noted that its ruling in Doe v. Reed did not foreclose success on this "as applied" challenge still pending at the district court.

After the district court reopened the plaintiffs' "as applied" challenge, plaintiffs moved for a TRO, alleging that threats and harassment directed toward supporters of Prop 8 in California would spill over into Washington and that some R-71 supporters received threats because of their opposition to Washington's domestic partnership law.  After briefing and argument, the district court granted the TRO, restraining the Secretary of State from releasing names and addresses of R-71 signers.

While the case still has to go to hearing, it's quite likely that the district court will rule in favor of the plaintiffs on the merits and bar the release of their personal information under the PRA: Judge Settle had to conclude that plaintiffs were likely to succeed on the merits as part of his TRO ruling (although the 2-page ruling doesn't contain this analysis), and he previously ruled that disclosure likely violated the First Amendment for all petitions in his preliminary injunction ruling that ultimately led to Doe v. Reed at the Supreme Court.

But however the case comes out on the merits, look for it to head next to the Ninth Circuit and perhaps again to the Supreme Court.

The Washington Secretary of State collects all the documents in this case, going back to the original complaint, here.


August 15, 2010 in Association, Due Process (Substantive), Equal Protection, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, August 12, 2010

Perry v. Schwarzenegger, Proposition 8, the Stay, and Standing to Appeal

Judge Walker has lifted the stay of Perry v. Schwarzenegger finding Proposition 8 unconstitutional, or, more precisely, in an Order issued today, he has ordered that the previous "judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8."

One of the more interesting aspects of the Order is the discussion of whether the Proponents have satisfied the "likelihood of success on the merits" prong of a stay analysis.  This prong is always a difficult one, especially when it is being decided by the same judge who issued the original order: in essence, it requires the judge to conclude that it is likely the decision will be reversed.  However, Perry introduces another wrinkle given the uncommon procedural posture of the case.  Recall that the named defendants, Governor Schwarzenegger and other California officials, are not defending the case.  Instead, Proposition 8 was defended by the "proponents" of Proposition 8.

Judge Walker writes:

If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.  

Proponents’ intervention in the district court does not provide them with standing to appeal.

Order at 5.  Walker cites Arizonans for Official English v Arizona, 520 US 43, 67 (1997), in which a unanimous Supreme Court held that the organization, Arizonans for Official English (AOE) that had sponsored the English-only constitutional amendment passed by ballot initiative and AOE's chairperson, Robert Park, did not have standing. The Supreme Court wrote:

Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of [the state constitutional amendment].  We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests.  AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated.

520 US at 67.

In his Order, Walker continues, 

Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.

Order at 6. 

Certainly, Perry v. Schwarzenegger has tremendous import for same-sex marriage in California and elsewhere. 

However given the burgeoning number of ballot initiatives about a vast array of subjects, Perry v. Schwarzenegger raises potential issues about judicial review of all such laws. 

What happens when the state does not approve and therefore does not defend a law adopted by ballot initiative?  At trial in Perry, the judge allowed "Proponents" of the ballot initiative to defend the law.  And, according to the judge, their performance was not very exemplary: "Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8."  Order at 6.  

What if the Proponents lack Article III standing to appeal the decision finding the law unconstitutional?  This could essentially insulate the judge from being appealed. 

On the other hand, what if the Proponents are granted Article III standing?  This might dilute Article III standing or allow private parties - - - or certain private parties - - - to assume the mantle of government and articulate its interests.


August 12, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Standing | Permalink | Comments (0) | TrackBack (0)