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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. 2. Civil Trial Scheduling Order (July 24, 2009)

Ex. 3. Minute Order Denying Defendants’ Request Regarding Discovery (July


24, 2009)

Ex. 4. Minute Order Denying Motion to Certify Order for Interlocutory Appeal
and for Stay (Nov. 24, 2009)

Ex. 5. Reporter’s Transcript of Proceedings (February 18, 2010)

Ex. 6. Minute Order re: Stay of Proceedings (March 4, 2010)

Ex. 7. Magistrate Judge Eick Civil Minutes (March 16, 2010)

Ex. 8. Minute Order Denying Defendants’s Motion for Review of Magistrate


Judge’s Discovery Ruling (April 6, 2010)

Ex. 9. Reporter’s Transcript of Proceedings (April 26, 2010)

Ex. 10. Order Denying in Part Motion for Summary Judgment (May 27, 2010)

Ex. 11. Reporter’s Transcript of Proceedings (June 28, 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. 16. Order Granting Permanent Injunction (Oct. 12, 2010)

Ex. 17. Judgment & Permanent Injunction (Oct. 12, 2010)

LOSANGELES 883864 (2K)


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Ex. 18. Defendants’ Ex Parte Application for the Entry of an Emergency Stay
(Oct. 14, 2010)

Ex. 19. Opposition of Log Cabin Republicans to Defendants’ Ex Parte


Application for Emergency Stay of Injunction (Oct. 15, 2010)

Ex. 20. Amended Order Denying Defendants Ex Parte Application for Entry of
an Emergency Stay (Oct. 20, 2010)

Ex. 21. Press Release (Oct. 14, 2010)

Ex. 22. Clifford L. Stanley Memorandum for Secretaries of the Military


Departments (Oct. 15, 2010)

Ex. 23. Press Release (Oct. 19, 2010)

Ex. 24. Secretary of Defense Memorandum for Secretaries of the Military


Departments; Clifford L. Stanley Memorandum for Secretaries of the
Military Departments (Oct. 21, 2010)

2 LOG CABIN REPUBLICANS


LOSANGELES 883864 (2K) INDEX OF EXHIBITS 53
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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
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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 Unless otherwise ordered by the Judge or the Magistrate Judge conducting a


2 settlement conference (whose procedures will apply if different from those set forth here),
3 the parties shall follow the "Requirements for Settlement Procedures" set forth in Local
4 Rule 16-15.5.
5 If a settlement is reached, it shall be reported immediately to this Court as required
6 by Local Rule 16-15.7. In all cases set for jury trial, the parties must notify the Court,
7 no later than the Wednesday preceding the Tuesday trial date, of any settlement, so
8 that the necessary arrangements can be made to bring in a different case for trial or
9 notify the members of the public who would otherwise be reporting for jury duty
10 that their services are not needed that date.
11 Failure to comply with this notification requirement may result in the
12 imposition of sanctions on counsel for one or more parties, or their clients, or both.
13
14 Pretrial Conference
15 The Court will conduct a Pretrial Conference in this case pursuant to Federal Rule
16 of Civil Procedure 16 and Local Rule 16-1 on the date and time listed above. Each party
17 appearing in this action shall be represented at the Pretrial Conference and at all pretrial
18 meetings by the lead trial counsel. Counsel should be prepared to discuss streamlining
19 the trial, including presentation of testimony by deposition excerpts, time limits, stipulations
20 as to undisputed facts, and qualification of experts by admitted resumes. In rare cases
21 where the Pretrial Conference is waived by the Court, counsel must follow Local Rule 16-
22 11.2.
23
24 Pretrial Filings
25 Counsel shall submit carefully prepared Memoranda of Contentions of Fact and
26 Law (which may also serve as the trial briefs) and proposed Pretrial Conference Orders in
27 accordance with the provisions of Local Rules 16-4 through 16-7. The form of the
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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 Exhibit and Witness Lists


2 Counsel are to prepare their exhibits by placing them in 3-hole notebooks which are
3 tabbed down the right side with exhibit numbers. The notebooks are to be prepared with
4 an original for the Courtroom Deputy Clerk, which shall be tagged with the appropriate
5 exhibit tags in the upper right hand corner of the first page of each exhibit, and one copy
6 for the Court. Each notebook shall contain a list of the included exhibits. The exhibits are
7 to be numbered in accordance with Local Rule 26-3. Counsel can obtain exhibit tags at
8 the Clerk’s Office, Room 134, 1st Floor, 3470 Twelfth Street, Riverside.
9 The Court requires the following to be submitted to the Courtroom Deputy Clerk on
10 the first day of trial:
11 ! The original exhibits with the Court’s exhibit tags. The parties shall
12 use yellow tags for plaintiff and blue tags for defendant, which shall be stapled to
13 the front of the exhibit on the upper right corner with the case number, case name,
14 and exhibit number placed on each tag.
15 ! One bench book with a copy of each exhibit for use by the Court,
16 tabbed with numbers as described above. (Court’s exhibit tags not necessary.)
17 ! Three (3) copies of exhibit lists.
18 The exhibit lists shall be in the form indicated by the following example:
19 Case Title: Case No.
20 No. of Exhibit Description Date Date
Identified Admitted
21
22 3 1/30/80 letter ___________ ____________
from Doe to Roe
23
24 ! Three (3) copies of witness lists in the order in which the witnesses
25 may be called to testify.
26 The witness lists shall be in the form indicated by the following example:
27
28 Case Title: Case No.

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1 Name of Witness Date called to testify


2 1. John Doe
3 2. Jane Roe
4
5 All counsel are to meet no later than ten (10) calendar days before trial and to
6 stipulate to the extent possible to foundation, waiver of the best evidence rule, and which
7 exhibits may be received into evidence at the start of trial. The exhibits to be received will
8 be noted on the extra copies of the exhibit lists.
9
10 Jury Instructions
11 Fourteen (14) calendar days prior to the Rule 16-2 Meeting of Counsel, counsel
12 shall exchange proposed jury instructions and special verdict forms (if applicable). Seven
13 (7) calendar days prior to the Rule 16-2 meeting, counsel shall exchange any objections to
14 the instructions and special verdict forms. Prior to, or at the time of the Rule 16-2 meeting,
15 counsel shall meet and confer with the goal of reaching agreement to one set of joint,
16 undisputed jury instructions and one special verdict form.
17 The parties must file proposed jury instructions seven (7) calendar days before the
18 Pretrial Conference. As always, the parties must submit courtesy copies directly to the
19 Court. In addition, the parties must submit electronic versions (either Word or
20 WordPerfect format) to the Court at the following electronic mail address:
21 VAP_Chambers@cacd.uscourts.gov.
22 As noted above, the parties must act jointly to submit proposed jury instructions.
23 The parties must submit one set of agreed upon jury instructions. The parties must submit
24 another set of jury instructions containing the instructions upon which the parties disagree
25 and the objections to those instructions.
26 Where the parties disagree on an instruction, the party opposing the instruction
27 must attach a short (i.e., one to two paragraphs) statement supporting the objection and
28 the party submitting the instruction must attach a short statement supporting the

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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;
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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

CIVIL MINUTES -- GENERAL

Case No. CV 04-8425-VAP (Ex) Date: July 24, 2009

Title: LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA, et al.


================================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present


Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR


PLAINTIFFS: DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER DENYING DEFENDANTS' REQUEST


REGARDING DISCOVERY (IN CHAMBERS)

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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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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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

CIVIL MINUTES -- GENERAL

Case No. CV 04-8425-VAP (Ex) Date: November 24, 2009

Title: LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED


STATES OF AMERICA, et al.
===============================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present


Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR


PLAINTIFFS: DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER DENYING MOTION TO CERTIFY ORDER


FOR INTERLOCUTORY APPEAL AND FOR STAY (IN
CHAMBERS) [Link & Term Doc. No. 93]

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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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 June 12, 2006, Defendants filed a motion to dismiss Plaintiff's First


Amended Complaint. On June 9, 2009, the Court granted in part and denied in part
Defendants' motion to dismiss. On July 24, 2009, the Court allowed Plaintiff to
proceed with discovery in this action.

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.

II. LEGAL STANDARD


The general rule is that an appellate court does not review a district court
ruling until after entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S.
463, 471 (1978). A district court may certify for appeal an otherwise non-appealable
order, however, when the "order involves a controlling question of law as to which
there is substantial ground for difference of opinion and . . . an immediate appeal
from the order may materially advance the ultimate termination of the litigation." 28
U.S.C. § 1292(b). Section 1292(b) creates an exception to the general rule that
appeals may be taken only from final judgments. See James v. Price Stern Sloan,
Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002); In re Cement Antitrust Litig., 673 F.2d
1020, 1025–26 (9th Cir. 1982). Only in rare and extraordinary cases should district
courts grant motions brought under Section 1292(b) for interlocutory appeal. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996); In re Cement Antitrust Litig., 673
F.2d at 1026.

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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.

B. Defendants' Motion is Untimely and Would Not Expedite This Action


Defendants argue the Court's June 9, 2009 Order involved controlling issues
of law as to which there is a substantial ground for difference of opinion, and an
interlocutory appeal will materially advance the ultimate resolution of this action. As
the Court finds Defendants have delayed unjustifiably in seeking certification of the
subject order and interlocutory appeal would not advance materially the resolution of
this action, the Court does not address Defendants' argument that the subject order
involved controlling issues of law as to which there is a substantial ground for
difference of opinion.

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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proper means of challenging the nature and scope of discovery requests is by


serving objections to those requests, however, not by seeking an interlocutory
appeal.1 Defendants do nothing to demonstrate that an appeal is likely to lead to a
more expedient resolution of this action than allowing it to proceed according to its
current pre-trial schedule. Standing alone, a showing that discovery may be
burdensome is insufficient to meet Defendants' burden. As Plaintiff notes, rather
than advancing the ultimate termination of this action, an appeal at this time is likely
to delay it. (Opp'n at 7:7–8:2.)

C. A Stay of This Action Is Inappropriate


Defendants separately argue that the Court should stay these proceedings
because the President of the United States has indicated he supports repeal of the
DADT Policy and because Congress intends to hold hearings concerning "the
continued wisdom" of that policy. (Mot. at 13:9–22.) Upon transfer of this case to
this Court, the Court inquired of defense counsel regarding the Defendants' position
regarding their intentions regarding the continued defense of this action; defense
counsel responded that its instructions to defend the case had not changed. Not
until served with discovery has the defense informed the Court of a change, or
potential change, in its position.

Furthermore, Defendants cite no authority for the proposition that district


courts should stay litigation concerning the constitutionality of federal laws for an
indefinite period merely because the legislative and executive branches have
expressed doubts concerning the continued wisdom of the challenged laws. Indeed,
such a rule would allow Congress effectively to insulate federal laws from
constitutional challenge merely by continually holding hearings concerning those
laws. This Court declines to adopt such a rule, and finds that Defendants have not
demonstrated that a stay of this action is appropriate.

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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1

1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3 EASTERN DIVISION

4 - - -

5 HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

6 - - -

7 LOG CABIN REPUBLICANS, )


)
8 Plaintiff, )
)
9 vs. ) No. CV 04-8425-VAP(Ex)
)
10 UNITED STATES OF AMERICA, ET. AL., )
) STATUS CONFERENCE
11 Defendants. )
___________________________________)
12

13
REPORTER'S TRANSCRIPT OF PROCEEDINGS
14
Riverside, California
15
Thursday, February 18, 2010
16
9:07 A.M.
17

18

19

20

21

22 THERESA A. LANZA, RPR, CSR


Federal Official Court Reporter
23 3470 12th Street, Rm. 134
Riverside, California 92501
24 (951) 274-0844
WWW.THERESALANZA.COM
25

Thursday, February 18, 2010 CV 04-8425-VAP


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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
9

10
On behalf of Defendants:
11

12 UNITED STATES DEPARTMENT OF JUSTICE


BY: Paul G. Freeborne
13 20 Massachusetts Avenue, NW
Room 6108
14 Washington, DC 20001
202-353-0543
15

16

17

18

19

20

21

22

23

24

25

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1 I N D E X

2 Page

3 Status Conference................................. 4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 Riverside, California; Thursday, February 18, 2010; 9:07 A.M.

2 -oOo-

3 THE CLERK: Calling item one, case number CV

4 04-8425-VAP, Log Cabin Republicans versus the United States of

5 America, et. al. 09:06

6 May we have counsel please come forward and state

7 your appearances for the record.

8 MR. FREEBORNE: Paul Freeborne on behalf of the

9 United States and Secretary Gates.

10 MR. WOODS: Dan Woods and Patrick Hagan, White & 09:07

11 Case, for plaintiff, Log Cabin Republicans.

12 THE COURT: Thank you. Good morning.

13 Counsel, I put this matter on the calendar for a

14 status conference to talk primarily about the issue of the

15 progress towards the trial date, which is June 14th, and also 09:07

16 just to inform you about the status of the request made on

17 behalf of the plaintiffs for participation in the Ninth

18 Circuit's pilot project. I'll take up the latter issue first,

19 because that will not require much time.

20 There was a letter request submitted by counsel on 09:07

21 behalf of the plaintiffs which I think was directed, if I

22 recall correctly, to Chief Judge Collins and I believe a copy

23 to defense counsel.

24 You've received that?

25 MR. FREEBORNE: We have, Your Honor. 09:08

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1 THE COURT: Also a copy to myself and to Chief

2 Judge Kozinski.

3 For two reasons, at least, for two reasons, although

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

6 formal response from the defense -- I don't think this case

7 is -- well, it's not that this case is or is not appropriate,

8 but there are two impediments, as I see it, for any case to

9 participate in the pilot project. The first is because of the

10 decision by the United States Supreme Court affecting I guess 09:09

11 you'd call it the mechanics of the pilot project as it stands

12 now -- that is, putting a stay on the one case in the northern

13 district of California which had been selected for

14 participation in the pilot project -- it seems to me that until

15 the issues identified by the Supreme Court are resolved by 09:09

16 further order from the Ninth Circuit resolving some of the

17 issues with respect to the changes in the local rules that were

18 required in the northern district and would be required in the

19 central district before any court could participate, because

20 our local rules, like the northern district's local rules at 09:10

21 the time, prohibiting any photographic or videotaping of

22 proceedings would have to be changed.

23 There are various other -- mechanical is not quite

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

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1 participated in it. And until, as I understand it, the Ninth

2 Circuit is trying to make some changes to resolve some of the

3 issues that came to light during the attempts to film the

4 Proposition 8 trial, and also, of course, the issues that

5 caused the Supreme Court to issue a stay, such as whether it's 09:11

6 the responsibility of the Court set up and be responsible for

7 the equipment -- that is, all the equipment that would allow

8 the taping to go forward -- or whether it's simply a matter of

9 making the courtroom accessible to any news media that wanted

10 to bring in their own equipment to unobtrusively film the 09:11

11 proceedings -- until those issues are further resolved by the

12 circuit, and then, until if and when our court changes its

13 local rules, it's not appropriate or possible to proceed with

14 the request; so that's the status of the request by the

15 plaintiff. But it has been considered. 09:12

16 Now, the second and more pressing issue is the trial

17 date.

18 I have checked the docket. Since the parties were

19 last here, I have seen no activity on the docket before

20 Judge Eick on discovery matters, so I assume that the discovery 09:12

21 has proceeded forward with the parties, the discovery that was

22 discussed at the last hearing, since I have not seen you going

23 before Judge Eick.

24 Given the public announcements from the

25 administration regarding the changes in the position about the 09:13

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1 policy that's at issue in this case, I would ask the government

2 to tell me what its position is with respect to the defense in

3 this lawsuit and whether or not it has any different position

4 with respect to the defense of the lawsuit.

5 MR. FREEBORNE: Starting with the defense, we 09:13

6 continue to defend the statute. Obviously with the testimony,

7 there are things to bring to the Court's attention.

8 First, as the Court noted, during the State of the

9 Union address, the President committed to working with Congress

10 to repeal the statute; and then on February 2nd, there was 09:14

11 testimony heard from both Secretary Gates as well as

12 Admiral Mullen on both interim measures that are being

13 undertaken as well as long-term measures that are being

14 undertaken. If I could start with the short-term measures.

15 It is anticipated within 45 days of the testimony 09:14

16 that was provided on February 2nd that revised regulations will

17 be promulgated by the Department of Defense.

18 THE COURT: That puts us at the middle of March.

19 MR. FREEBORNE: That's right.

20 THE COURT: Forty-five days would be March 17th. 09:14

21 MR. FREEBORNE: That's right, Your Honor.

22 I will cut to the chase. We believe that a stay of

23 this case is appropriate to see what changes are effectuated

24 through those regulations.

25 I would remind the Court that plaintiff's case is the 09:14

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1 facial challenge, not only to the statute but to the underlying

2 regulations. If those regulations are altered, it will

3 fundamentally change the nature of this case.

4 To give you one concrete example, Mr. Nicholson,

5 who's the one member that plaintiff has identified, he alleges 09:15

6 in his declaration that he was outed by a third party. In the

7 testimony heard on February 2nd, Secretary Gates noted that

8 issue is being examined, among others, and the revised

9 regulations; so if we have those regulations, it could alter

10 both the standing and it could also alter whether or not even 09:15

11 there's a viable case here; so it seems prudent at this

12 juncture to stay the case to see what comes of the regulations

13 in the review that's being undertaken by the Secretary.

14 In the long term, as both Admiral Mullen and

15 Secretary Gates noted at the February 2nd hearing before the 09:16

16 Senate Armed Services Committee, a working group has been

17 instituted within the Department of Defense to look at issues

18 that should be ironed out if a repeal is implemented by

19 Congress, to look at those issues and attempt to effectuate a

20 smooth transition. 09:16

21 But again, I want to highlight the regulations, that

22 they -- that's within 45 days of the February 2nd hearing.

23 Your Honor, I would also note, just to speak to

24 discovery, for example, on Friday we just received deposition

25 notices for both Secretary Gates and Admiral Mullen. There 09:16

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1 have been, now, discovery requests for documents that relate to

2 the deliberative processes of the DOD as it relates to their

3 attempts to repeal the statute; so there's now a bleeding in of

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

7 political process long-term.

8 Again, short-term, we think a 60-day stay is

9 appropriate in light of the regulations which could

10 fundamentally alter the nature of this facial challenge. 09:17

11 THE COURT: Are those the only two depositions that

12 have been noticed?

13 MR. FREEBORNE: There are some 30(b)(6) notices that,

14 again, as to their -- we have objected to the 30(b)(6) notices.

15 We will have motions practice on that. 09:17

16 They ask, among other things -- well, a lot of the

17 issues that are now being considered by this task force, for

18 example, the experience of foreign nations that DOD to-date has

19 not formally studied, that will be looked at by the task force

20 to see what has been the experience of foreign nations in 09:17

21 incorporating gay and lesbian service members into their armed

22 services and allowing them to openly serve.

23 That's one of the issues that is, again, the subject

24 of the 30(B)6 notice that we've objected to; that's now being

25 considered by the task force that's been established by -- 09:18

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1 THE COURT: And it's a 30(b)(6) notice to the

2 Department of Defense?

3 MR. FREEBORNE: It is.

4 It's to the United States, but DOD would be the

5 responding agency. 09:18

6 So those are the things that we were glad to see that

7 the Court called this status conference, particularly after the

8 statements.

9 There has been a lot of movement, both in terms of

10 the State of the Union remarks by the President, and, as I 09:18

11 noted at the February 2nd hearing, that could fundamentally

12 alter this case, if not moot it.

13 THE COURT: All right. Thank you.

14 Mr. Woods?

15 MR. WOODS: Thank you, your Honor. 09:19

16 Since we were here in November, we have been working

17 very hard to comply with the Court's scheduling order and to

18 get this case ready for trial in June; so, yes, we have served

19 discovery on the defendants, as we would be expected to do, and

20 we are in the middle of discovery disputes with the defense on 09:19

21 some of these things.

22 We have also complied with the Court's order by

23 designating expert witnesses.

24 THE COURT: And I noted that the parties submitted a

25 stipulation to continue the deadline for that, which I 09:19

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1 approved, back in January.

2 MR. WOODS: And we timely, after the brief extension,

3 submitted expert materials to the government, and the

4 government has scheduled the depositions of all of the experts

5 that we designated. 09:19

6 THE COURT: And when are those depositions scheduled

7 for?

8 MR. WOODS: The first one is next Friday in New York;

9 they follow the week after that in the Bay Area, and the week

10 after that in the District of Columbia. 09:20

11 THE COURT: And how many experts have you designated?

12 MR. WOODS: Seven.

13 THE COURT: How many has the government designated?

14 MR. FREEBORNE: As we indicated at, I believe, the

15 July status conference, we intend to rely upon the statute and 09:20

16 legislative history in response to the facial challenges.

17 THE COURT: So none.

18 MR. FREEBORNE: So none.

19 MR. WOODS: Let me also, your Honor, talk about our

20 perspective on the recent State of the Union address and Senate 09:20

21 hearing.

22 Despite what you read in the newspapers about those

23 positions taken by the government, the government in our

24 lawsuit continues to fight the lawsuit vigorously. For

25 example, your Honor, the State of the Union address occurred on 09:20

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1 January 27th. One day later, January 28th, we were served with

2 objections to a set of requests for admissions that we had

3 served on the government. One day after the State of the Union

4 address, the government served us, plaintiff, Log Cabin

5 Republicans, with a set of interrogatories, a set of document 09:21

6 requests, and a set of requests for admissions. Two days after

7 the State of the Union address, i.e. January 29th, the

8 government served us with objections to the 30(b)(6) deposition

9 notice we had served on the defendant. I note in that regard,

10 Your Honor, that the defendant has refused to produce any 09:21

11 witness in response a 30(b)(6) deposition notice on any subject

12 listed in the notice, and we expect to have cross-motions about

13 that to be filed soon.

14 You may recall when we were here in November, we also

15 had discussions about our document requests to the government 09:21

16 and the government's lack of a timely response to those

17 document requests. Following the November hearing, we have met

18 and conferred with the government about narrowing the requests;

19 we have narrowed them to the extent we thought was appropriate.

20 Despite the government's untimely objections, the 09:22

21 government has produced some documents, but the government

22 continues to withhold responsive relevant documents; so we have

23 anticipated a motion to compel further responses to the

24 government about that.

25 Since the State of the Union address, the government 09:22

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1 has noticed the depositions of our expert witnesses and has

2 noticed the deposition of Mr. Nicholson as well.

3 So the government, Your Honor, despite the State of

4 the Union address and whatever comments were made at the Senate

5 hearing on February 2nd, is continuing to defend the lawsuit 09:22

6 vigorously.

7 We also are well aware of what the Department of

8 Defense and the Chairman of the Joint Chief of Staff said at

9 the Senate hearing. And yes, counsel is right that there is an

10 interim review being done and a longer-term review being done. 09:22

11 Neither of these things should have any impact on our case,

12 Your Honor.

13 The long-term analysis of this, your Honor, by our

14 calculations, will take at least two years more, probably two

15 and a half years more. Let me explain why I say that. At the 09:23

16 February 2nd hearing, Secretary Defense Gates said that he

17 wanted this study about "Don't Ask, Don't Tell" to be completed

18 by the end of this calendar year; so by the end of 2010, the

19 military working group will have produced a study.

20 Now, that's a study. 09:23

21 Congress has to decide whether to repeal the statute

22 or not.

23 There's no doubt about that, because, again,

24 Secretary Gates said to the Senate hearing that "the ultimate

25 decision rests with you, the Congress." 09:23

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1 So we don't know, of course, how long it would take

2 the Senate to analyze whatever report is produced by the end of

3 the calendar year 2010. But if we assume, for example, that it

4 takes six months, that takes us to June 2011.

5 THE COURT: I'm sorry. 09:24

6 The study could be completed by December 2010, as a

7 timeline.

8 MR. WOODS: Right.

9 THE COURT: And then it goes to Congress.

10 So what are you saying happens in the six months? 09:24

11 MR. WOODS: That maybe Congress will --

12 THE COURT: -- will act in six months.

13 MR. WOODS: Maybe. That's optimistic, I would say.

14 And then, according to Secretary Gates again, it

15 would take at least a year to implement any change that 09:24

16 Congress made.

17 So even if you assume that Congress can act in six

18 months, we're not talking about any fundamental change until,

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

21 statute, which, of course, is very iffy. As you may have read

22 in the Senate hearing, there was opposition to the President's

23 new position from various senators.

24 As you know, there's an election in November that

25 could change, fundamentally, the composition of the Senate, and 09:25

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1 that could change how Congress views any effort by the

2 President to repeal the statute; so this is all very iffy in

3 the long-term basis.

4 But even if there was any repeal to the statute, it

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

7 trial. In the meantime, during that period, there is no

8 moratorium on discharges of gays and lesbians serving. They

9 will continue to be discharged. There is also no effort to do

10 anything about that underway now. 09:25

11 When Counsel and I talked about possibly a stay of

12 this case, I asked about a moratorium. That has been rejected.

13 I asked about the possibility that during any stay period,

14 there might be a slightly different standard applied. In other

15 words, what I suggested to Counsel was the following: That 09:26

16 before any gay or lesbian member of our armed forces be

17 discharged during any stay period, the government be required

18 to prove that that person's homosexuality had a negative impact

19 on unit cohesion or troop morale. It would be similar to the

20 standard adopted by the Ninth Circuit in the Witt case with 09:26

21 which you are familiar; so that before anybody could be

22 discharged, there actually had to be some showing of a negative

23 impact on unit cohesion or troop morale in any stay period.

24 The government is not agreeable to that either.

25 So in this period of time when the government is 09:27

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1 thinking about changing the policy, your Honor, gay and lesbian

2 soldiers, sailors and others will continue to be discharged and

3 harmed by what we believe to be this unconstitutional policy.

4 Now, yes, there is some opportunity here for the case

5 and politics to bleed together, and that is because, among 09:27

6 other things, the Chairman of the Joint Chief of Staff said to

7 the Senate on February 2nd that there was no evidence of which

8 he is aware to support the proposition that the policy protects

9 unit cohesion or troop morale, the stated purpose of the policy

10 in the statute. The government's own leading enforcer of this 09:27

11 policy admits that there is no evidence to support it, and we

12 believe that is a damning admission to the government's

13 position that we can use at the trial.

14 Now, we can't help that the politicians are involved

15 in this at the same time that we're preparing a case for trial. 09:28

16 We didn't do that, they did that; so that really should not

17 matter.

18 With regard to this notion of a short-term stay of

19 60 days, I'm opposed to that for all of the reasons that I just

20 mentioned. There is no indication of what is going to change 09:28

21 in these regulations. We don't know yet. The only thing that

22 was discussed was that discharges would have to be approved by

23 somebody at a higher level of authority, and investigations

24 could be started only by somebody at a higher level of

25 authority. That's the only change that is being discussed in 09:28

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1 this 45-day period. It doesn't alter the fact that patriotic

2 gay and lesbian members of our armed forces, who are fighting

3 and dying in two wars today, will continue to be negatively

4 impacted by this policy while the government continues to study

5 it. 09:29

6 Your Honor, we had the same discussion back in

7 November when the government was trying to stay the case then.

8 Your order denying the stay at that time made perfect sense,

9 and it continues to make perfect sense, even putting aside the

10 fact that the government has not moved for a stay, which it 09:29

11 really ought to do if it thinks a stay is appropriate. But

12 back in November, you pointed out that the defendants, quote,

13 "Cite no authority for the proposition that district courts

14 should stay litigation concerning the constitutionality of

15 federal laws for an indefinite period merely because 09:29

16 legislative and executive branches have expressed doubts

17 concerning the continued wisdom of the challenged laws.

18 Indeed, such a rule would allow Congress effectively to

19 insulate federal laws from constitutional challenge merely by

20 continually holding hearings concerning those laws. This Court 09:30

21 declines to adopt such a rule."

22 Your Honor, that's what you said in November. I

23 think it's right. I think it still applies.

24 THE COURT: Well, first of all, I think there are two

25 important things to discuss based on what you have both just 09:30

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1 argued. And let's start with the -- of course it's a very

2 effective technique -- and by 'technique,' I don't mean that --

3 it's a very effective way to argue to quote back the judge's

4 own words, because you put me in a position of having to, if

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

7 point a 60-day stay, which is different from an indefinite stay

8 which is the language in the language that you just quoted, I

9 think the first thing to consider is whether a stay of 60 days

10 makes any sense. 09:31

11 So the first thing I'm wondering, as I listen to both

12 of you, is whether anything -- I'm not inclined to issue an

13 indefinite stay. If there is a stay, it should be for a

14 definite term; and that's not to say that I have decided that

15 there should be one. 09:32

16 In terms of thinking about whether a stay for a

17 definite period of time would be appropriate or would make

18 sense, looking back at the timeline that you just argued about

19 how long it would take before a decision is made by Congress,

20 the defense's argument is that in the long-term we're talking 09:32

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

23 predict is this: I think it's a conservative timeline. That

24 is, I think it's optimistic.

25 I agree with you that the study would be completed by 09:32

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1 December of this year; a decision by Congress, say, in six

2 months, which puts us at June 2011; and then a year to

3 implement. It's that last year part that's...

4 If this case goes to trial in June -- and there's

5 every reason to believe you'll start on the date that I have 09:33

6 given you, or very shortly -- there's no reason to think you

7 will not start on June 14th, because this is an old case and

8 you should get priority on my calendar -- and then it will take

9 me some time to do a decision after the trial -- but just

10 assuming, for the purposes of argument alone, the decision is 09:33

11 in the plaintiff's favor, it's still going to take time to

12 implement.

13 Your assumption here is that the time to implement,

14 if Congress changed the regulations and abolished the statute,

15 is somehow longer than it would take if the Court's ruling had 09:34

16 a similar effect, and I think that's a false proposition.

17 MR. WOODS: I don't agree with that, your Honor.

18 I think at the end of a court trial in this case, we

19 will ask you to issue a permanent injunction; that's part of

20 the remedy we'll ask you for. We will ask you to enjoin the 09:34

21 government from enforcing its unconstitutional "Don't Ask,

22 Don't Tell" policy immediately. That's what we're asking for.

23 THE COURT: I understand that.

24 I understand the relief you're seeking in this case,

25 and I hesitate to draw this analogy, so I'm trying to think of 09:34

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1 a different one, but whenever a policy of large proportion is

2 changed, I think it's overly optimistic to think that one order

3 issued from one court means that enforcement is unambiguous and

4 occurs overnight.

5 Certainly, I have no idea yet even if, of course, the 09:35

6 plaintiffs will prevail, but the words that come to mind are

7 'all deliberate speed.' And I don't think that enforcement or

8 nonenforcement of this policy would be as complex as what's

9 faced other courts in other contexts.

10 But if you're predicting that it would take one year 09:35

11 to implement a change if Congress repeals the regulations, then

12 I don't see why it would be an overnight change if it's a court

13 order.

14 MR. WOODS: Your Honor, with respect, I think you're

15 underestimating your own powers. I mean, I do recall from 09:36

16 personal experience as a law clerk to another federal judge

17 some years ago, my first day on the job, the judge declared an

18 act of Congress unconstitutional, and it stopped that very day.

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

21 that's what we're asking this Court to do in a very different

22 context.

23 I don't think that there is any possible way of

24 resolving this without causing the continued harm to Americans

25 in the position that we're representing. 09:37

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1 I would have been accommodating to the government if

2 the government had been willing to agree to stay discharges

3 pending a stay period or even if they had adopted the Witt

4 standard from the Ninth Circuit on a national basis. That

5 would make sense, Your Honor, because in the meantime, people 09:37

6 -- if the President is really interested in repealing the

7 law -- would have the opportunity to study it, implement it;

8 but in the meantime, no one would be harmed by the current law.

9 So that, I thought, made sense. But the government is not

10 interested. So in the meantime, people are harmed. 09:37

11 THE COURT: Which brings me to the next question

12 which is that if there is a stay for a finite period of time,

13 and the government's request is 60 days, if in that 60-day

14 period, there is a change in the -- and I don't mean 'the

15 government' meaning the defendant in this case or the defense 09:38

16 in this case, but the government in the sense of the Department

17 of Defense's implementation of the policy -- if there's a

18 moratorium that is adopted, not as a part of this litigation,

19 but then it seems to me that, to me, is the most compelling

20 reason for a short stay over a finite period of, say, 30 to 09:38

21 60 days to see if in that period the Department of Defense, in

22 connection with the study that it's undertaking, enacts a

23 moratorium.

24 MR. WOODS: I'm sorry, your Honor, but

25 Secretary Gates at the very second hearing said that there 09:39

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1 would be no moratorium. And I suggested this to Mr. Freeborne,

2 who agreed that there would be no moratorium during this 45-day

3 stay period and that that is not something the government is

4 thinking about.

5 THE COURT: Well, that 45-day period, that's the 09:39

6 45-day period that ends on March 17th.

7 MR. WOODS: Right. But they are not thinking about a

8 moratorium in this 45-day period. The only thing, according to

9 the testimony before the Senate, that is under consideration is

10 elevating the level, the rank, if you will, of an officer who 09:39

11 considers discharge proceedings and whether a higher level of

12 officer or a higher-ranked person is required to initiate an

13 investigation; so these are very, very minor changes that do

14 not impact the status of the thousands of gay and lesbian

15 members of our armed forces fighting for our country today. 09:40

16 MR. FREEBORNE: Your Honor, could I be heard on that

17 issue, because I'd like to read in, actually, the testimony of

18 Secretary Gates. This was in response to a question from

19 Senator Levin, and he outlined what issues are being

20 considered. And just so I'm clear, these issues are being 09:40

21 considered, just so we're all on the same page about things

22 that are being considered.

23 He was asked the question of what would be undertaken

24 during this 45-day review period, and he said "We can raise the

25 level of the officer who was authorized to initiate an 09:40

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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

3 raise the bar of what constitutes credible information to

4 initiate an inquiry; we can raise the bar on what constitutes a

5 reliable person on whose words and inquiry can be initiated." 09:40

6 And it goes on: "Overall, we can reduce the instances in which

7 a service member who is trying to serve the country honorably

8 is outed by a third person with a motive to harm the

9 serviceman." Then he goes on to talk about Witt, and states

10 "We also have to devise new rules and procedures in light of 09:41

11 the Appeals court decision in Witt versus the Department of Air

12 Force for the areas of the country covered by the Appellate

13 court."

14 That is what's being considered. Those are the

15 issues that are being considered. Whether any of those will 09:41

16 ultimately be implemented, we don't know. But that, just so

17 we're all on the same page about the breadth of the issues, is

18 not what Mr. Woods just stated; it's much broader.

19 Which, again, their challenge is a facial challenge

20 to the statute and regulations. One needs only to look at the 09:41

21 complaint. They draw, in large part, from the regulations. If

22 those regulations change, I would argue they have to amend

23 their complaint and file a new lawsuit.

24 THE COURT: The other issue that is of grave concern

25 if we move towards a trial date in June is the extent to which 09:42

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1 the discovery, not so much of the expert witnesses that the

2 plaintiff has designated, but -- and let me just stop for a

3 moment there and say, given that there is a discovery cutoff in

4 this case, I cannot really fault the government for propounding

5 discovery and continuing to defend the case vigorously, as the 09:42

6 plaintiff has characterized it, at this point.

7 The real issue and the real concern is that the

8 discovery that the plaintiff seeks to do, including the

9 depositions of Secretary Gates and Admiral Mullen and so forth,

10 to a certain extent, is going to call into question not just 09:43

11 whether a protective order would issue to quash the deposition

12 notices, but whether the jurisdiction of the Court over this

13 case would be affected because of the constitutional limitation

14 based on the political question.

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 events, but it seems to me it's another reason why I might want

18 to extend the trial date for a brief period of time. And I do

19 mean brief, like 30 to 60 days, to allow the parties to brief

20 that issue about any limitations on the Court's jurisdiction 09:44

21 because of the impingement of a political question, and see if

22 there's a way to fashion discovery so the plaintiff can take

23 the discovery that it feels it's entitled to do of elected

24 officials, especially if they have made a statement, but yet

25 does preserve the deliberative process which also exists. 09:45

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1 Because those are not issues that are going to be easily

2 resolved in a 30-minute discovery motion hearing.

3 MR. WOODS: Your Honor, this is one of the reasons

4 why I suggested it; that if there was going to be any request

5 by the government for a stay, that it not come up verbally in 09:45

6 the middle of a status conference but, instead, be made by a

7 traditional, formal motion, which the government has not made.

8 Because then we would be able to respond adequately to the

9 points that may come up.

10 THE COURT: I'm going to give both sides -- if I'm 09:46

11 inclined to do this, both sides will have a full opportunity,

12 but the earliest that this question is addressed, the better,

13 for both sides.

14 MR. WOODS: I agree.

15 And I would also suggest, Your Honor, that if there's 09:46

16 any stay under consideration, that it only be a postponement of

17 the trial date, not a stay of the entire case, so that we have

18 time to finish all of the discovery. It needs to be done

19 before we ever get to a trial.

20 MR. FREEBORNE: May I be heard on that issue? 09:46

21 THE COURT: Let him finish, and then I'll let you be

22 heard.

23 MR. WOODS: And I would also suggest that if there's

24 going to be any stay considered, that the Court condition any

25 stay on preserving the position of people represented by our 09:46

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1 client.

2 Now, he just read to you part of Secretary Gates'

3 testimony in front of the Senate, but he missed or did not want

4 to read another part of it, which was about moratoriums.

5 Senator Levin asked him whether he would support a moratorium 09:47

6 pending this period on discharges, and Secretary Gates said "We

7 will look at it, Mr. Chairman."

8 I will tell you that the advice I have been given is

9 that the current law would not permit that; so they are not

10 going to do a moratorium. 09:47

11 If you're going to stay anything in this case,

12 Your Honor, we would ask you to stay it on the condition that

13 either there be a moratorium on discharges or that the Witt

14 standard be applied nationally so that no one could be

15 discharged unless and until there was an actual showing that 09:47

16 there was an impact negatively an unit cohesion or troop morale

17 as a result of the service member's homosexuality. Otherwise,

18 a stay in this case continues to damage the interests of those

19 people fighting for our country today who have been delayed in

20 this unfortunate case for so long already. 09:48

21 THE COURT: All right.

22 Mr. Freeborne?

23 MR. FREEBORNE: With regard to the last point, this

24 Court's jurisdiction would only extend to this district. They

25 are asking for nationwide relief, which this Court would not 09:48

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1 even have the power to effectuate a nationwide injunction.

2 This is not a class action; this is a case brought within this

3 district.

4 THE COURT: But how in the world could -- if the

5 plaintiffs succeed in this case on the relief that they are 09:48

6 seeking, are you suggesting that an injunction would be only

7 directed to service members serving within the Ninth Circuit?

8 MR. FREEBORNE: Your Honor, this Court does not have

9 nationwide jurisdiction to issue an injunction.

10 THE COURT: Are you suggesting that, theoretically, 09:49

11 if a district court orders that any regulation or federal law

12 is unconstitutional, it only applies in the district where the

13 Court sits?

14 MR. FREEBORNE: Well, Your Honor, we can put that

15 issue aside. I just note that I think that -- 09:49

16 THE COURT: That's because I think you are incorrect.

17 MR. FREEBORNE: Your Honor, with respect to the

18 discovery, as the Court noted, that discovery runs headlong

19 into the political question. They want to depose

20 Secretary Gates and Admiral Mullen about their deliberative 09:49

21 processes as it relates to their efforts to potentially repeal

22 the statute, which, as the Court indicated, freezes any type of

23 discussion. They want us to designate a 30(b)(6) witness to

24 testify about matters that, again, are being considered by the

25 task force. 09:50

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1 Mr. Woods is correct, Secretary Gates said that DOD

2 does not have the authority to effectuate a moratorium. But I

3 noted the areas that are being examined in the regulatory

4 review process that is being undertaken, and it is anticipated

5 that within 45 days, or shortly thereafter, we will have new 09:50

6 regs on the books that could fundamentally alter this case and,

7 as I noted before, plaintiffs' standing to bring the case or

8 whether or not the case is moot.

9 THE COURT: Well, maybe I misunderstood you when you

10 earlier said that 45-day period, which ends roughly on 09:50

11 March 17th -- are you predicting that there will be new

12 regulations?

13 MR. FREEBORNE: Your Honor, that's the Secretary's

14 testimony; that's what's anticipated to happen on that date.

15 Which, as I note, it's reasonable to have a stay now so we can 09:51

16 see what those regulations are and see how they affect this

17 case, this very case that the Court has before it.

18 THE COURT: But this case and the complaint in this

19 case does not challenge only the regulations.

20 MR. FREEBORNE: No. Without a doubt, it challenges 09:51

21 both the statute and the regulations; and the regulations, if

22 changes are implemented, will effectuate a change in how it's

23 administered, which affects their --

24 THE COURT: It may, but it may not necessarily moot

25 the case. 09:51

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1 MR. FREEBORNE: It may not moot it, but it may

2 actually moot some of the discovery issues that the Court would

3 otherwise have to address.

4 And I also note the standing issue of Mr. Nicholson,

5 which, again, I'm not here to commit to any regulatory changes 09:51

6 but --

7 THE COURT: I understand that.

8 And we don't need to get into it, because it may or

9 may not occur. I'm not sure I agree with you about how the

10 changes in the regulations could moot the standing of 09:52

11 Mr. Nicholson. But we don't need to argue that today.

12 MR. FREEBORNE: I should note, I think the political

13 question or some type of a -- the Court deserves to know how it

14 should be able to operate in this environment and also the

15 overarching issues of how this case will ultimately be 09:52

16 governed.

17 We had an argument back in July on whether or not we

18 should be looking at continued rationality. Our view, as you

19 know, is you look at the type of enactment and you look at the

20 basis upon which Congress and the then-President looked to in 09:52

21 enacting this statute, namely privacy and sexual tension. And

22 perhaps in conjunction with that briefing, the parties would be

23 aided by knowing exactly what the target is here.

24 We don't believe it's continued rationality, for the

25 legal reasons we set forth in July, but also we run into the 09:53

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1 difficulties that we have today, where now you have efforts

2 afoot to potentially repeal a statute. This case has the

3 potential of freezing those types of discussions through the

4 discovery and, ultimately, perhaps thwarting the efforts that

5 plaintiff actually wants to achieve here. That's the issue. 09:53

6 THE COURT: Well, I don't view the issue quite that

7 broadly. I think there are issues that could come up in this

8 case in the context of the discovery that the plaintiff wishes

9 to take that may be subject to either the deliberative process

10 privilege or the political question issue. But the more I hear 09:54

11 from both sides -- and I appreciate what both of you have

12 argued -- what I'm inclined to do -- and I'm going to take it

13 under submission, and I may ask for briefing from both sides --

14 what I'm inclined to do is probably to continue the trial date

15 for a short period of time and continue the discovery cutoff 09:54

16 date, because I foresee that what's probably really necessary

17 here is more time to resolve the issues that I have identified

18 about discovery, but not necessarily to issue a stay at this

19 time.

20 So I will issue a written order. 09:54

21 And, as I said, if I'm inclined to order a stay

22 rather than continuing the trial date, I'll ask for further

23 briefing. Or I guess, alternatively, if you want to submit

24 something in writing, both sides, I'll allow you to do that.

25 I'll give both sides ten days in which to submit briefing on 09:55

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1 those issues.

2 Is that preferable?

3 MR. FREEBORNE: So you're not inclined to issue a

4 stay of the --

5 THE COURT: I'm not inclined to stay the case. I'm 09:55

6 inclined to continue the trial date for a short period of time,

7 because I think that what's going to happen is that in the

8 course of preparing for trial, the issues that we've identified

9 about the deliberative process privilege and the political

10 question issues as it relates to the discovery that the 09:55

11 plaintiff wants to propound, that's what's going to take up

12 more time.

13 And in the course of that, and depending on what

14 happens with the regulations, which may or may not issue by

15 mid-March, if you feel that -- well, first of all, if the 09:56

16 regulations do issue by then, then you can bring a motion if

17 you think there's a real issue that certain parts of the

18 complaint have been made moot. I think that's a more

19 appropriate way to proceed. We don't know if any new

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.

22 That's what I'm inclined to do at this point.

23 So if we're talking about a continuance of the trial

24 date for 60 to 90 days, that means we're going to trial in July

25 or August. 09:56

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1 Does either side have any -- what do your trial

2 calendars look like in July or August?

3 MR. FREEBORNE: August would be preferable, from the

4 government's perspective, Your Honor.

5 MR. WOODS: We're happy to do it at the earliest 09:57

6 possible date convenient to the Court.

7 THE COURT: All right.

8 Do the parties want to submit briefing on the issues

9 before I take the matter under submission, or do you want to

10 have it stand submitted based on your arguments today? 09:57

11 MR. FREEBORNE: If I could alert the Court, I'd like

12 to consult with my supervisors back in Washington. I'll let

13 the Court know what our preference is.

14 THE COURT: Mr. Wood?

15 MR. WOODS: That's fine, Your Honor. 09:57

16 I have no problem with a brief on the issue.

17 It may be that in light of this discussion, we might

18 simply withdraw the notices of the depositions of

19 Secretary Gates and Admiral Mullen.

20 THE COURT: And wait and see what happens with the 09:58

21 issuance of new regulations?

22 MR. WOODS: Yes. I mean, it was never our intention

23 to question them about what they are doing. The questions were

24 about the evidence that exists today about the underpinnings of

25 the statute. We're not trying to get into the politics of 09:58

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1 this. The politics of this, of course, overtakes the case,

2 because as it turns out, four years after we filed the lawsuit,

3 the President of the United States, the Secretary of Defense

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

6 case in a rather awkward position.

7 But I'm happy to submit a brief in ten days to

8 explain to the Court why no stay is necessary and how the

9 discovery will proceed. By that time, we'll also probably have

10 on file one or more discovery motions. 09:58

11 THE COURT: All right.

12 Well, I'm not sure I need further briefing at this

13 point, because I think if any further briefing is necessary, it

14 will come up in the context of discovery motions.

15 I'm still considering whether -- and I have the 09:59

16 greatest confidence in Judge Eick, but I have a

17 feeling whatever -- I'm still considering whether or not to

18 vacate the discovery reference. I'll make a decision on that

19 today; so you may be filing your motions directly here. But

20 unless you hear otherwise, of course, discovery motions are 09:59

21 heard before Judge Eick.

22 Thank you very much.

23 MR. WOODS: Thank you, your Honor.

24 MR. FREEBORNE: Thank you.

25 (Proceedings concluded.)

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3 CERTIFICATE

5 I hereby certify that pursuant to section 753, title 28, United


States Code, the foregoing is a true and correct transcript of
6 the stenographically recorded proceedings held in the above-
entitled matter and that the transcript page format is in
7 conformance with the regulations of the Judicial Conference of
the United States.
8

9 _____________________________ _________________
THERESA A. LANZA, CSR, RPR Date
10 Federal Official Court Reporter

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 04-08425-VAP (Ex) Date: March 4, 2010

Title: LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED


STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF
DEFENSE, in his official capacity
================================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present


Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR


PLAINTIFFS: DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER RE: STAY OF PROCEEDINGS (IN


CHAMBERS)

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.

cc: Magistrate Judge Eick

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CV 04-08425-VAP (Ex)
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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UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No. CV 04-8425-VAP (Ex) Date: March 16, 2010

Title: LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA, et al.

DOCKET ENTRY

PRESENT:

HON. CHARLES F. EICK, JUDGE

STACEY PIERSON N/A


DEPUTY CLERK COURT REPORTER

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None None

PROCEEDINGS: (IN CHAMBERS) (Page 1 of 3)

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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UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No. CV 04-8425-VAP (Ex) Date: March 16, 2010

Title: LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA, et al.

DOCKET ENTRY

PRESENT:

HON. CHARLES F. EICK, JUDGE

STACEY PIERSON N/A


DEPUTY CLERK COURT REPORTER

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None None

PROCEEDINGS: (IN CHAMBERS) (Page 2 of 3)

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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UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No. CV 04-8425-VAP (Ex) Date: March 16, 2010

Title: LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA, et al.

DOCKET ENTRY

PRESENT:

HON. CHARLES F. EICK, JUDGE

STACEY PIERSON N/A


DEPUTY CLERK COURT REPORTER

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None None

PROCEEDINGS: (IN CHAMBERS) (Page 3 of 3)

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.

cc: Judge Phillips


All Counsel of Record

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 04-08425-VAP (Ex) Date: April 6, 2010

Title: LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED


STATES OF AMERICA and DONALD H. RUMSFELD, SECRETARY OF
DEFENSE, in his official capacity
================================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present


Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR


PLAINTIFFS: DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER DENYING DEFENDANTS' MOTION FOR


REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING
(IN CHAMBERS) [Motion filed March 26, 2010] (IN
CHAMBERS)

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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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS, etc. v USA
MINUTE ORDER of April 6, 2010

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.

II. LEGAL STANDARD


A party objecting to a Magistrate Judge’s ruling on a pretrial motion may, within
ten days of entry of the order, file a motion seeking review by the assigned District
Judge, designating the specific portions of the ruling objected to and stating the
grounds for the objection. A party objecting to a Magistrate Judge's Order must
show it to be "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A).

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.

Rule 36(a)(4) provides in relevant part as follows:

If a matter is not admitted, the answer must specifically deny


it or state in detail why the answering party cannot truthfully
admit or deny it. A denial must fairly respond to the
substance of the matter; and when good faith requires that a
party qualify an answer or deny only a part of a matter, the

answer must specify the part admitted and qualify or deny


the rest.

The Magistrate Judge considered Defendants' argument that the RFAs in

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS, etc. v USA
MINUTE ORDER of April 6, 2010

question here could not be answered by an unqualified admission or denial, and


rejected it. Defendants have failed to demonstrate the ruling was "clearly erroneous
or contrary to law."

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.

Accordingly, the Court DENIES Defendants' Motion.

IT IS SO ORDERED.

cc: U.S. Magistrate Judge Eick

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140
1
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1 UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
2 EASTERN DIVISION-RIVERSIDE

3
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
13
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
18
19
20
21
22
23
24
25

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1 APPEARANCES
2
For the Plaintiff: WHITE & CASE
3 By: DAN WOODS
PATRICK HUNNIUS
4 633 West Fifth Street, Suite 1900
Los Angeles, California 90071-2007
5
6
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

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 MONDAY, APRIL 26, 2010, RIVERSIDE, CALIFORNIA


2 ---o0o---

3 THE CLERK: Item No. 7, CV04-8425 VAP, Log Cabin


4 Republicans versus United States of America.
5 Counsel, please state your appearance.
6 MR. WOODS: Good afternoon, Your Honor. Dan Woods,
7 White & Case, for the plaintiff, Log Cabin Republicans, and
8 Patrick Hunnius from our office.
9 THE COURT: Thank you. Good afternoon.
10 MR. FREEBORNE: Good afternoon, Your Honor. Paul

11 Freeborne on behalf of the United States and Secretary Gates.


12 With me at counsel table are my colleagues Scott Simpson, Ian
13 Gershengorn and Captain Patrick Grant.
14 THE COURT: Good afternoon.
15 Well, I haven't checked the electronic filing since
16 about 11:30 this morning, so I hope I'm up to date. Nothing
17 filed since 11:30?
18 MR. WOODS: You are up to date.
19 THE COURT: All right. Then I'm up to date.
20 Things have been changing quickly.
21 The Court sent out, as I think you all know, a
22 tentative ruling late last week, on Thursday I believe, which
23 was addressed not to all the issues that the parties have
24 briefed in connection with this motion for summary judgment
25 that's before the Court today, but addressed only to the

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1 issue of standing, which was one of the issues briefed, of


2 course, in the motion, but addressed to an aspect of standing

3 that although raised in -- certainly standing had been raised


4 in the motion, but an aspect of standing that although
5 raised, I did not feel had been necessarily fully addressed
6 by the parties.
7 So, in an effort to make sure that both sides were
8 aware of my concerns with whether the Court had jurisdiction
9 over the case, we sent out a tentative ruling early so that
10 the parties would be prepared to address it today. And then

11 both sides filed further supplemental briefing I think after


12 that. I can't remember the exact date, but by Friday I had
13 received a supplemental memorandum from the plaintiff, and
14 then in response to that, I think it was entitled a response
15 brief, the defendants' response to the plaintiff's
16 supplemental filing from the defendants.
17 And then this morning two more documents were
18 filed. One, the declaration of Mr. Meekins, and evidentiary
19 objections filed by the plaintiff to some of the evidence
20 that was submitted by the Government earlier. I have not
21 looked -- I have read the declaration of Mr. Meekins. I have
22 not had time to review the evidentiary objections.
23 So, the first question is whether the tentative
24 ruling is superseded by these supplemental filings from
25 Thursday, Friday, and this morning.

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1 When I read and reviewed the supplemental filings


2 late last week, and I had a long further tentative ruling to

3 read to you, but I think I'll skip that, at least at this


4 point, unless the parties want to argue that. I'll skip it
5 because I think, although I've thought a lot about the
6 arguments and done some further research in connection with
7 the arguments raised by the plaintiff, that the Court should
8 consider the standing issue as of April 28, 2006, the day
9 that the amended complaint was filed. I think that that is
10 mooted by the information contained in the declaration of

11 Mr. Meekins, which states that, in short -- it's a very short


12 declaration, but in short, that John Doe paid dues before the
13 date that this action was commenced on October the 12th,
14 2004.
15 Mr. Meekins was on the national board of the
16 plaintiff, was on the board of directors at the time this
17 action was filed in October of 2004, and he was also an
18 associate of White & Case, the plaintiff's counsel. He,
19 Mr. Meekins, met with Doe before the case was filed and with
20 at least three others about the filing of the case, and that
21 Doe was so concerned about keeping his identity secret and
22 confidential that he paid the money for his dues through his
23 -- in Meekins' words, through his lawyer, because Meekins
24 considered himself Doe's lawyer. And Doe was at the time a
25 member of the board of directors and he paid that money to

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1 LCR or Log Cabin Republicans as Doe's dues.


2 So, I think that moots the standing issue, because

3 if either Nicholson or Doe was a member, the association, of


4 course, only needs one person to have been a member at the
5 time. At least for purposes of the hearing today, I don't
6 think I necessarily need to hear argument on the issue of
7 whether Mr. Nicholson was a member.
8 It's an interesting -- well, to me it's an
9 interesting question. I've read many times over all the
10 cases that both sides have cited on this issue, the

11 McLaughlin case, the Loux v. Rhay case, and a few others


12 besides all of the cases that you've cited to me, and I think
13 it's an interesting crinkle when you have associational
14 standing on top of the issue of an action being dismissed and
15 then an amended complaint being filed. But I don't
16 necessarily have to reach that issue as to whether
17 Mr. Nicholson -- and then there's the issue that the
18 Government raises about whether Nicholson as an honorary
19 member was really a member under the bylaws, but I don't
20 necessarily need to reach that issue if, as I believe, Doe
21 was a member before the action was filed. And that's the way
22 the case appears to me now.
23 However, and I think you've all appeared in front
24 of me enough to know this, I usually -- well, almost always,
25 when I have a motion to be heard, I give out a written

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1 tentative.
2 On the merits of this case, although I've read

3 everything that the parties have submitted and read many of


4 the cases, I didn't really prepare thinking that this case
5 was really revolved around standing. I would like the
6 parties to argue it today, and I have several questions to
7 direct to both sides on the merits of the motion.
8 I'm concerned about whether, after hearing you
9 argue today, I will be able to get a final ruling out to you
10 in time that you can finish your trial preparation such that

11 we can keep the June 14th trial date. I didn't mean to


12 elicit such a hasty response. I guess I could listen to your
13 response to that. So I'm thinking that I'm probably going to
14 have to move the trial date a short -- not a significant
15 period, but a short period, but I am prepared to have you
16 argue. I do have several questions to focus the argument on
17 the substance or the merits of the claims that are raised.
18 Since you both, apparently, want to be heard as to
19 the trial date and the issues with respect to the standing,
20 you can do so first, if you'd like.
21 MR. WOODS: Well, Your Honor, I was just going to
22 say that in light of the tentative ruling and with the filing
23 just today of Mr. Meekins' declaration, we aren't entirely
24 surprised the Court doesn't have a tentative ruling on the
25 merits of the motion. We're quite happy, if it's your

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1 desire, to come back another day and argue that. At the same
2 time we're happy to argue it today, but whatever your choice

3 would be. We understand, of course, given the timing of


4 everything, that the trial date would have to be moved.
5 THE COURT: All right. Mr. Freeborne.
6 MR. FREEBORNE: Well, Your Honor, I would like to
7 speak first to the standing issue, if I may.
8 THE COURT: Go ahead.
9 MR. FREEBORNE: Your Honor, with all due respect,
10 your tentative ruling is correct and it properly disposes of

11 this case. The operative complaint here is the first amended


12 complaint. The cases make clear that when the action is
13 initiated. When Judge Schiavelli afforded plaintiff the
14 opportunity to correct the deficiency in its original
15 complaint, he was very clear not to dismiss the underlying
16 action. So standing, as Your Honor correctly ruled in the
17 tentative, is determined at the time that this action was
18 initiated.
19 THE COURT: Well, let me stop you there, though,
20 because that's procedurally almost exactly what happened in
21 the case I referred to a moment ago, Loux v. Rhay, which is
22 the case where a state prisoner sued the State of Washington.
23 And it was eventually decided on Eleventh Amendment immunity
24 grounds. But what's interesting about that case is there
25 were three holdings in the Circuit, and it was Judge Byrne

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1 from this court sitting on the Circuit who wrote the


2 decision, and what you just said was the first holding, which

3 was there was a complaint filed. It was dismissed. And so


4 first the Court -- the Ninth Circuit held, all right, the
5 dismissal of that action, as you said, was moved to amend, so
6 it didn't get rid of the case.
7 But, nevertheless, although the trial court's
8 dismissal of the original complaint did not amount to
9 dismissal of the action, the amended complaint superseded the
10 original complaint and thereafter the original complaint

11 should be treated as nonexistent. There was a discussion of


12 standing in this case, even though, as I said, it really
13 turned on Eleventh Amendment immunity. But if you applied
14 that logic to our case, the dismissal of the original
15 complaint for lack of jurisdiction, which is exactly what
16 happened in the Loux case, means that it should be treated,
17 as the Ninth Circuit said there, as nonexistent.
18 So then it follows, doesn't it, that the Court
19 should not do a standing analysis based on the date of the
20 filing of the action?
21 MR. FREEBORNE: Your Honor, absent new claims or
22 new parties --
23 THE COURT: Which there were neither of in
24 Loux v. Rhay.
25 MR. FREEBORNE: Well, Your Honor, perhaps they

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1 could refile and perhaps that would be the remedy here. But
2 what we have here is a situation where they filed suit in

3 2004, October 12th, 2004, and they attempted to manufacture


4 members to support their claim. That's the opposite of how
5 it should work and for good reason. Hunt is very clear in
6 requiring you bring suit, and when associational standing is
7 at issue, you must have a member at hand at that time who
8 could sue on his or her own right.
9 THE COURT: I agree with you, you can't manufacture
10 standing, and you can't manufacture persons, but given what

11 the Meekins' declaration says is they had a member.


12 MR. FREEBORNE: If I could turn to that point?
13 THE COURT: Why don't you.
14 MR. FREEBORNE: With respect to the -- first of
15 all, it's an eleventh-hour declaration and we have
16 considered, but it's improper. They've had six years to come
17 forward and prove that they had standing in this case.
18 THE COURT: Well, let me -- in terms of the
19 eleventh-hour issue, the Government didn't squarely raise
20 this. I mean, you certainly have raised standing. It's not
21 the first time you've raised standing, you've raised it
22 before, but you did raise it in this motion. And this is a
23 very difficult issue for the Court. When I say "for the
24 Court," whether I raise something that a party hasn't
25 raised. But when it comes to standing, the Court has no

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1 choice. The Court has to raise even an aspect of standing


2 whether one side or the other -- when it comes to any

3 jurisdictional issue, if you haven't raised it, the Court has


4 to. The Court has a duty to.
5 So, although you've raised standing, you had to
6 raise the issue that I felt duty bound to raise, which was
7 that the declaration was more general than I thought it
8 should have been. So, to criticize, if that's not too harsh
9 a word, to criticize the plaintiffs for coming in at the
10 eleventh hour, if I hadn't raised this in the tentative

11 ruling, they wouldn't have come in at the eleventh hour.


12 MR. FREEBORNE: Your Honor, if I could respond to
13 that. The law in this case is Judge Schiavelli's March 22nd,
14 2006 order in which he required them to identify by name a
15 member, not an anonymous member, a member by name. And so,
16 yes, our briefing was directed at Mr. Nicholson, because I
17 think we all now agree that Mr. Nicholson has been proven not
18 to be a member either at the time of the initial complaint
19 or, frankly, even in 2006. And so, yes, our briefing was
20 focused on Mr. Nicholson because that's what we understood
21 the law of the case to be.
22 Now, with respect to Mr. Doe, as Your Honor is
23 aware, they have offered up a declaration in the past for
24 Mr. Doe. It's very curious now that they've offered up a
25 declaration from counsel. And there's a lot of questions to

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1 be raised about the Doe declaration.


2 First of all, Mr. Meekins' is very carefully

3 drafted. Mr. Meekins says funds were transferred to him.


4 When? We don't know. He also concludes in the final
5 paragraph that he considers Mr. Doe a member. Well, that
6 doesn't leave us in any better position than we were after
7 the Bradley declaration. He, too, considered Mr. Doe to be a
8 member, but that doesn't sustain their burden of proof on the
9 issue.
10 And even if they could get beyond all those

11 hurdles, Judge Schiavelli's order on March 22, 2006, governs


12 this case, and for good reason. It was only because we could
13 depose Mr. Nicholson and, frankly, Mr. Hamilton, their
14 director, were we able to learn that they had -- that
15 Mr. Nicholson was not a member at the time that this action
16 was commenced, and he was not a member at the time of the
17 filing of the first amended complaint.
18 What the Meekins' declaration does show us, though,
19 is the extent to which they have attempted to manufacture
20 standing in this case. What it makes clear is that they
21 didn't have any member. They purportedly went to four
22 enlisted service members and say, "Will you help us with this
23 lawsuit?" And then they attempted to -- they apparently were
24 able to enlist Mr. Doe, but again, the declaration is very
25 unclear as to whether or not he was a member. And all

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1 Mr. Meekins tells us is that they considered Mr. Doe to be a


2 member, not that he was a member, not that he's on the

3 membership roles, not that he was on the membership roles


4 back in 2004.
5 Your Honor, all of this points to the fact why
6 Judge Schiavelli's ruling was correct. We need to have an
7 identified member which they said that they have. They said
8 that in the original complaint. They said, "We have
9 discharged members." And to identify one of those
10 individuals certainly doesn't cause them any harm, the

11 individuals harm, because they've been discharged.


12 Moreover, Mr. Woods handed me at Mr. Hamilton's
13 deposition a survey of anonymous discharged members. They
14 said, "We have plenty of discharged members." They can
15 identify one of those discharged members to sustain their
16 burden of showing standing, associational standing. To
17 manufacture standing as they've done in this case in a
18 constitutional challenge, Your Honor, is an improper forum
19 for this Court to be exercising Article III powers,
20 particularly when we have a facial challenge.
21 As Your Honor is aware, facial challenges are
22 independently frowned upon for good reason. They have
23 potential of intervening the democratic process. What we
24 have here from all appearances is a generalized grievance
25 where the Court should not be exercising its Article III

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1 powers, particularly where we have a constitutional challenge


2 at issue.

3 So, with all due respect, we believe that they have


4 not sustained their burden of proving that Mr. Doe was a
5 member and, therefore, a proper basis for the Court to find
6 associational standing, but even if you were, the March 22,
7 2006 order should govern this case.
8 THE COURT: I've addressed that already in the
9 order that I issued about what anonymous means and what the
10 circumstances of this case mean in terms of the exception in

11 rare cases where a person may be identified as a John Doe.


12 But, Mr. Woods, do you want to respond to the other
13 arguments?
14 MR. FREEBORNE: Your Honor, if I could speak to
15 that analysis?
16 THE COURT: I've already ruled on that issue, so I
17 think you've preserved it.
18 Mr. Woods, do you want to respond on the other
19 issues?
20 MR. WOODS: Yes, Your Honor. Let me just focus on
21 standing for now. I'm happy to talk today about the merits,
22 if you would like.
23 THE COURT: Let's focus on standing first.
24 MR. WOODS: First of all, associational standing is
25 a recognized part of our legal system. There are several

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1 cases cited in the briefs where courts do find associational


2 standing to exist, which includes the Biodiversity case in

3 the Ninth Circuit, the Associated General Contractors case in


4 the Ninth Circuit, and from the Supreme Court, the
5 Friends of the Earth case and the Hunt case.
6 We all agree, I believe, on what the elements of
7 associational standing are. Three elements in the Hunt case,
8 and the Government is only contesting one of them, which is
9 whether one member of the organization has standing in his or
10 her own right to present the claim.

11 What the Government misstates, and again,


12 Mr. Freeborne's argument misstates again, is the burden on
13 this motion of establishing this issue. The case that I
14 believe, Your Honor, sets out this most clearly is the Lujan
15 case which is cited in your tentative. It's a Supreme Court
16 case and it talks about the burden of standing at different
17 stages of the litigation. I know this is important, so if
18 you don't mind, bear with me. I just want to read a little
19 bit of it without citing the cases that relies on them.
20 This is the Lujan case, Your Honor, page 561. "The
21 party invoking federal jurisdiction bears the burden of
22 establishing these elements. Since they are not mere
23 pleading requirements but rather an indispensable part of the
24 plaintiff's case, each element must be supported in the same
25 way as any other matter on which the plaintiff bears the

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1 burden of proof, i.e., with the manner and degree of evidence


2 required at the successive stages of the litigation.

3 At the pleading stage general factual allegations


4 of injury resulting from the defendant's conduct may suffice,
5 for on a motion to dismiss we presume that general
6 allegations embrace those specific facts that are necessary
7 to support the claim.
8 In response to a summary judgment motion, however,
9 the plaintiff can no longer rest on mere allegations, but
10 must set forth by affidavit or other evidence specific facts,

11 which for purposes of the summary judgment motion will be


12 taken to be true."
13 So, in this argument, Your Honor, it's not that we
14 have the burden of proving standing to exist, we only have,
15 in response to the Government's motion, the burden of showing
16 the genuine issue of material fact does exist. And we have
17 carried that burden, we believe, Your Honor, both with
18 respect to Colonel Doe and with respect to Mr. Nicholson.
19 So the evidence before you on Colonel Doe's
20 standing is contained in his original declaration,
21 Mr. Bradley's declaration, and now in Mr. Meekins'
22 declaration. And all of that evidence shows you that he was
23 a member of Log Cabin Republicans prior to the filing of the
24 original complaint which was in October of 2004.
25 At a minimum, Your Honor, this evidence that we

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1 presented to you at least creates a genuine issue of material


2 fact on this issue. And we may have to prove it at trial as

3 well, but that is the standard and we have met that


4 standard.
5 With respect to Mr. Nicholson, Your Honor, the
6 question, first of all, is a legal question about when you
7 look at the issue, at the time we filed the original
8 complaint or at the time of the filing of the first amended
9 complaint. And in our brief we did cite the case you've
10 already mentioned, the Ninth Circuit case. And we noticed

11 that in the Government's response to our supplemental brief


12 there was no mention of that case or of the treatise that
13 also stated the same point.
14 Also, Your Honor, sorry to fill you up with one
15 more case for you to look at in your reading on this issue. I
16 apologize again for not citing it earlier, but we were short
17 of time. An additional case that we believe supports our
18 position, Your Honor, is called Forum for Academic and
19 Institutional Rights, Inc. v. Rumsfeld. The Citation is 291
20 F.Supp.2d, 269, from the District of New Jersey in 2003.
21 THE COURT: Sorry, 291 F.Supp.2d?
22 MR. WOODS: At 269. You will find, Your Honor,
23 there is subsequent history to the case on the other issues
24 in the case but not on the standing issues raised. The
25 plaintiff in that case, Forum for Academic and Institutional

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1 Rights, is called FAIR. It's a Solomon Act case in which


2 FAIR and other -- FAIR was an association of law schools

3 challenging the Solomon Act. And the standing in that case


4 was raised by a Government motion to dismiss. And prior to
5 the hearing on the motion to dismiss, FAIR identified by name
6 two law schools who were members of the organization. And
7 the standing issue is decided in that case on a second
8 amended complaint that had been filed in that case that
9 included the names of the two law schools that had not
10 previously been mentioned in the prior complaints. In that

11 case the District Court found standing to exist. The


12 subsequent history has to do with the other issue in the case
13 which is whether the plaintiffs were entitled to preliminary
14 injunction.
15 I also want to say, Your Honor, that some of the
16 cases that the Government cites in its supplemental papers
17 actually do not support the positions cited by the
18 Government, and perhaps indeed support our position. One of
19 those is the Lynch case which demonstrates its standing in
20 the class action case which is somewhat analogous to our
21 case. Can and should be evaluated based on when the
22 proffered representative is added to the litigation, need not
23 be determined at the time of commencement. The Court their
24 evaluates standing based on the later added class
25 representative, not the class representative named in the

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1 original complaint.
2 The other case that the Government relies on here

3 is the Schreiber case. And the Government quotes soundbites


4 from that case, but the actual case says something else.
5 It's a very odd case where the plaintiff had standing on a
6 patent litigation when they filed the case, then transferred
7 the patent rights and then at some point prior to judgment
8 got them back.
9 And again, the Court there does not look at
10 standing at any one particular point in time and actually

11 says, with respect to the general rule about standing, that


12 the plaintiff must have initial standing and continue to have
13 a personal stake in the outcome of the case that, quote, this
14 rule is not absolute. So that case, we believe, also
15 establishes our position that you could and should look to
16 standing as of the date of the filing of the first amended
17 complaint.
18 And if you agree with that proposition, Your Honor,
19 we have also established at least a genuine issue of material
20 fact as to whether Mr. Nicholson has standing. We have
21 evidence before you that showed bylaws of the Log Cabin
22 Republicans allowed for honorary members and that
23 Mr. Nicholson became an honorary member in April of 2006.
24 That evidence is found in the Engle declaration, Mr.
25 Nicholson's deposition, and in the Ensley declaration.

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1 It is also our view, Your Honor, that the


2 Government does not get to decide who is or isn't a member of

3 the Log Cabin Republicans. It is our position that's what


4 the Government seems to be trying to do by questioning the
5 relationship between the bylaws of our organization and the
6 articles of the corporation.
7 THE COURT: Well, let me interrupt you for a moment
8 on this last point. The McLaughlin case -- you mentioned
9 class actions a moment ago, and the
10 McLaughlin v. County of Riverside case, which perhaps not

11 surprisingly I am familiar with, is a class action case that


12 started out with a single named plaintiff who filed for
13 putative class action. And when the Supreme Court analyzed
14 the standing question, it expressly referred only to the
15 filing of the second amended complaint when determining the
16 basis of the standing. Now, Mr. Freeborne, I'm sure, would
17 point out correctly the single named plaintiff filed the
18 putative class action which claimed that the County violated
19 his rights under the Gerstein case about timely hearings to
20 determine whether a warrantless arrest had been made to
21 determine probable cause, speedy arraignment, and bail.
22 And then when the County moved to dismiss for lack
23 of standing on the basis that that plaintiff hadn't shown
24 that he would again be subject to all of this
25 unconstitutional conduct, then three more plaintiffs joined

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1 in. So I think, as Mr. Freeborne argued earlier, it's a case


2 where there were additional plaintiffs added. The thing

3 that's similar in a sense to this case where we have


4 associational standing is that was a class action. So
5 although there are, in a sense, named plaintiffs, they are
6 representing a class just as an association here. There's
7 some similarities or an analogy can be drawn between
8 associational standing and the requirements of class
9 representation.
10 So the three additional plaintiffs, the

11 representative plaintiffs, join in filing a second amended


12 complaint. It's a little hazy. I think the judge in
13 question never ruled on the first amended complaint but
14 allowed a second amended complaint to be filed by a motion to
15 dismiss the first amended, but a second amended complaint was
16 filed. And the County moved to dismiss for lack of standing
17 again.
18 And as I said, the Supreme Court only analyzed
19 standing from at the point in time which the second amended
20 complaint was filed in July of 1988, adding the three new
21 plaintiffs as class representatives. So the defense in
22 the -- I think it's in their reply papers in this motion
23 argues that a complaint may be amended to show that
24 jurisdiction exists but -- it actually was argued again today
25 -- it can't be amended to create jurisdiction when it didn't

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1 exist in the first place.


2 But I don't think you can escape the import of

3 McLaughlin where the Supreme Court only analyzed the standing


4 issue as of the date that the second amended complaint was
5 filed and not the date that the action was originally
6 commenced. So even if you argue that the focus on a later
7 date in McLaughlin can be explained as the result of the
8 addition of the new plaintiffs in that case, I'm not sure
9 that distinction is persuasive, because while in McLaughlin
10 there were three new plaintiffs that were added, the amended

11 complaint here, of course, remains one filed only by one


12 plaintiff, the association.
13 But the principles governing associational
14 standing, there only has to be a member of the association
15 who has standing, which is similar to the principles of
16 standing for purposes of -- it's similar to the principles of
17 having class members who are representative for purposes of a
18 class action, which is what happens and what often happens
19 when a class action is filed. And the representative in that
20 case was -- the representative class member was held not to
21 have standing and perhaps, therefore, defeating the entire
22 class's standing because he couldn't show that the
23 unconstitutional acts were likely to be repeated. But when
24 three more plaintiffs were added, standing was held to
25 exist.

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1 So I'm not sure you can really distinguish the two


2 cases by saying, oh, but they had more -- more plaintiffs

3 were added, because if you've got a class and you've got an


4 association, in a sense, you still really have one
5 plaintiff. If you've got a class or an association, you've
6 got representative class members that have to be
7 representative, if you've got a class action. And in an
8 association you have to have at least one member who would
9 independently have standing, but the principle should be the
10 same.

11 Do you want to respond to that?


12 MR. FREEBORNE: Yes, Your Honor.
13 THE COURT: And then I'll let you finish your
14 argument.
15 MR. FREEBORNE: With respect to Lujan --
16 THE COURT: No, actually, if you could just respond
17 briefly on this point about McLaughlin.
18 MR. FREEBORNE: Well, Your Honor, when you add new
19 claims and you add new parties, of course, the standing that
20 exists will be determined based upon those new claims and
21 those new parties. Here the parties have remained the same.
22 And in Lujan what it makes clear is that, after the
23 discussion that Mr. Woods just read, is that where you're
24 suing on behalf of someone else. You recall in Lujan the
25 plaintiff argued, well, now that the Government had been

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1 added as defendants there, that that solved the


2 redressability problem, and that's what Lujan specifically

3 rejected in footnote No. 4.


4 So, the point is, that you bring a lawsuit and --
5 THE COURT: I'm sorry, I have a conference call
6 scheduled.
7 (The Court and the clerk confer)
8 THE COURT: Go ahead.
9 MR. FREEBORNE: Your Honor, what Lujan makes clear
10 as well as the cases that actually address associational

11 standing, Biodiversity, for example, and the Laidlaw case, is


12 that when you bring an action and you purport to sue on
13 behalf of individual members, those members, of course, must
14 exist at the time of the suit. All the cases we've been
15 discussing don't address the associational context, again,
16 Biodiversity and Laidlaw do. And Lujan makes clear that
17 where you're suing on behalf of someone else, there's an
18 extra showing that Mr. Woods is not acknowledging in his
19 argument.
20 With respect to Mr. Nicholson, our argument is not
21 that we get to decide who is a member of Log Cabin
22 Republicans. We acknowledge that it's Log Cabin's decision
23 to make, but must be pursuant to the articles of
24 incorporation, which D.C. law makes clear in their articles
25 of incorporation that you're to have one class of members,

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1 dues paying members, and the undisputed facts show that


2 Mr. Nicholson was not a dues paying member, even at the time

3 of the first amended complaint.


4 THE COURT: The bylaws don't provide for honorary
5 members?
6 MR. FREEBORNE: Your Honor, to the extent they do,
7 they're void, because they're in conflict with the articles
8 of incorporation. As Your Honor will recall, bylaws are not
9 reviewed by the government of the District of Colombia. The
10 articles of incorporation where Log Cabin is incorporated,

11 the government does review the articles of incorporation.


12 Those articles of incorporation make clear that there is only
13 one class of membership, the dues paying members. There's no
14 separate class for honorary members.
15 THE COURT: Well, the articles of incorporation are
16 filed with -- the equivalent is of the Secretary of State
17 from the state. But I'm not sure what your authority is for
18 the proposition that if it's in the bylaws and it's not in
19 the articles of incorporation, that makes that section of the
20 bylaws void, as you said.
21 MR. FREEBORNE: Your Honor -- sorry.
22 THE COURT: No, go ahead.
23 MR. FREEBORNE: I was going to say we have
24 authority. D.C. law makes that clear. Because, again, in
25 case law from this very Circuit makes clear, the District

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1 Court's position makes clear that to the extent that bylaws


2 are in contravention of the corporation's articles of

3 incorporation, the bylaws are void. We have cited that


4 authority in our brief. And it just follows, because, again,
5 the corporation only exists because they have articles of
6 incorporation that have been blessed by the Government.
7 The facts of this case show, A, that those articles
8 of incorporation require the payment of dues, as Mr.
9 Hamilton, the Director of Log Cabin, acknowledged at his
10 deposition. To the extent the bylaws create a separate

11 category of members, honorary members, they're in conflict


12 with the articles of incorporation and therefore are void.
13 And the fact that they've now filed Mr. Meekins' declaration
14 is implicit acknowledgement of the dues paying aspect of
15 their membership, because that's why they highlight that
16 issue. But, again, they can't even --
17 THE COURT: Well, not necessarily. I mean it
18 doesn't -- there is no evidence that Mr. Doe -- I'm sorry, I
19 should be saying "Colonel." I know titles are important to
20 everyone, to get your name and the title correct, so I
21 apologize for that. Apparently, there's no evidence he was
22 ever made an honorary member, so they can't say he was an
23 honorary member, so they're saying he is a dues paying
24 member.
25 The reason I am so puzzled by this conflict between

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1 the -- I didn't focus on it before, so I will go back and


2 look at the authorities that you're telling me about. It

3 just sort of goes against my -- assuming what you told me, I


4 mean it does seem like a drastic consequence that that part
5 of the bylaws would be void.
6 The Federal Bar Association, I don't know if you
7 remember, the Federal Bar Association provides for honorary
8 members for all judges. At least the bylaws do. I don't
9 know if the articles of incorporation do or not. But many
10 organizations have a very loose category of honorary

11 memberships. And I've never really thought about the


12 interplay between the articles of incorporation and bylaws,
13 so I'll take another look at that issue.
14 All right. You may continue.
15 MR. WOODS: Thank you, Your Honor. On that issue
16 there were no District Court cases cited for the proposition
17 that the bylaws would be void. Instead, the Government cited
18 a state court case from Nevada and a state court case from
19 Illinois. That's the authority they could find on this
20 point.
21 THE COURT: On the issue of whether bylaws are void?
22 MR. WOODS: Right.
23 THE COURT: Isn't there anything from the District
24 of Colombia?
25 MR. WOODS: No case cited in the papers, Your

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1 Honor.
2 THE COURT: Do you have something to say? Did you

3 have some authority from the District of Colombia on that?


4 MR. FREEBORNE: We had a D.C. code, Your Honor,
5 Section 29-301-0512, which states clearly that bylaws cannot
6 be inconsistent with articles of incorporation under the laws
7 of the District of Columbia.
8 THE COURT: But it doesn't say in the code that
9 they're void?
10 MR. FREEBORNE: Well, it says they cannot be

11 inconsistent with the articles of incorporation. We cited


12 two state cases, the Nevada case as well as an Illinois case,
13 setting forth that proposition. Again, the D.C. law makes
14 clear that to the extent the bylaws are inconsistent with --
15 Your Honor, they can't be inconsistent with --
16 THE COURT: It says they can't be. It doesn't say
17 what the consequence is if they are?
18 MR. WOODS: Right.
19 MR. FREEBORNE: It defines the power of the
20 nonprofit corporation, the power to make and alter bylaws not
21 inconsistent with its articles of incorporation or the laws
22 of the District of Columbia for the administration and
23 regulation of the affairs of the corporation. So it defines
24 the power. So to the extent the bylaws are inconsistent with
25 the articles of incorporation, they are void pursuant to

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1 D.C. law.
2 MR. WOODS: Again, Your Honor, it is our position,

3 and I think it's a correct position, that all this does is


4 possibly trade the genuine issue of material fact that would
5 have to be tried on the standing issue, again, only with
6 respect to Mr. Nicholson, not with respect to Colonel Doe.
7 Another small point, Your Honor. Counsel in his
8 argument seems to criticize our case as being a facial
9 challenge. And I want to tell you that facial challenges are
10 not inappropriate. There's nothing inappropriate about a

11 facial challenge. They're an important, recognized part of


12 constitutional law. The Lawrence case was a facial
13 challenge. Just last week the United States Supreme Court
14 cited another facial challenge, United States v. Stevens, and
15 reversed on constitutional grounds a facial challenge, an
16 animal cruelty statute and, of all things, an 8 to 1 vote of
17 our Supreme Court. So facial challenges are more than
18 appropriate.
19 I was prepared, Your Honor, to talk to you about
20 the consequences if you had stayed with your tentative ruling
21 about standing. I don't need to go into that now, but one of
22 the consequences might have been to ask you for an
23 opportunity to find more members, to file an amended
24 complaint, because all that would have done, Your Honor,
25 would be to require us to file a new lawsuit tomorrow, which

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1 might have named Mr. Nicholson and Colonel Doe as members,


2 because there's no doubt that there are damages. There's no

3 point in doing that because we do have standing, we both


4 recognize now. And, again, our apologies --
5 THE COURT: Let me ask you -- let's go back to some
6 of the arguments that Mr. Freeborne made about what he
7 contends are the weaknesses in the declaration submitted by
8 Mr. Meekins.
9 MR. WOODS: I'm only going to tell you, Your Honor,
10 that going back six years trying to find out what happened

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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1 3:30 because I had a conference call on another case on a


2 status conference. And when they called at 3, Ms. Dillard

3 told them to call back at 3:30. So at 3:30 I'm going to take


4 a short recess to take that call in chambers. And then I'll
5 come back out and we'll talk. I want to at least have some
6 argument on some of the issues on the merits that I would
7 like to hear from the parties on.
8 But one last set of questions I have about the
9 Meekins' declaration. Mr. Freeborne has brought up some of
10 the Government's concerns with the Meekins' declaration in

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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1 THE COURT: All right. I'm not faulting either


2 side either for not, you know, either about raising it or for

3 not having anticipated it. That sometimes -- I just didn't


4 want to have the parties do all the work to prepare and then
5 come to court and have the Court raise something that needs
6 to be raised but everybody is caught by surprise.
7 But as to Mr. Freeborne's arguments about the
8 Meekins' declaration, I have done this once or twice before,
9 not in connection with the standing issue but actually in
10 connection with matters that have come up regarding

11 performance in criminal cases, in that sort of a context.


12 I'm not sure it's necessary, but one solution to the concerns
13 that the Government has raised about whether Colonel Doe is a
14 manufactured plaintiff, I'm not sure if that's really what
15 the Government is suggesting here, but if that's the
16 Government's contention, then it seems to me that the
17 solution for that, because that's a serious allegation, and
18 if that's the suggestion or the concern of the Government,
19 then the solution, it seems to me, is as follows:
20 That if I was persuaded that there was a serious
21 doubt as to the existence of a fictitious member, I mean
22 someone who is named with a fictitious name, and I stand by
23 my ruling that this is a rare case where it was appropriate
24 to allow someone to use a fictitious name, but to verify the
25 existence of someone who is allowed to proceed under a

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1 fictitious name, then I would have a hearing where


2 plaintiff's counsel, rather than even filing it under seal,

3 just to make sure that there's -- in my experience with the


4 court, there hasn't been a situation where something that was
5 filed under seal was inadvertently disclosed, but just to
6 make sure that that doesn't happen, then I would allow a
7 hearing where plaintiff's counsel could physically bring into
8 court documents that would verify the existence of Colonel
9 Doe, the information about his service and so forth, bring
10 them into my courtroom and hand them to me.

11 I will either sit on the bench or take them into


12 chambers, review them, satisfy myself, and hand them back.
13 So they don't get filed with the court. I am the only one
14 who has eyes on them. And if I am satisfied that this is not
15 a fictitious person but just a fictitiously named real
16 person, then that's the end of the inquiry. If I am not
17 satisfied, then we'll have to have a further hearing on it.
18 But if the Government has -- I'm not sure I am
19 understanding the Government's concerns, but if I am
20 understanding the Government's concern correctly that there
21 is a manufactured plaintiff; that is, that the person is just
22 not fictitiously named but is fictitious, then that to me is
23 the way to verify that.
24 And as I said, I've done this procedure where
25 rather than having something filed under seal, it's usually,

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1 as I said, I think I've done it twice before and it's been in


2 the context of very sensitive information with respect to

3 informants or private medical information, and that's the way


4 I've proceeded.
5 So I would let the parties talk about this, if
6 you'd want to, but that's the way I would proceed. And I'll
7 tell the parties that I have considered that in this case. I
8 might consider it in the future.
9 MR. WOODS: Well, Your Honor, what I understood the
10 Government to be saying about Mr. Meekins' declaration was

11 that there were four people he talked to, and he talked to


12 them shortly before the complaint was filed, and only one of
13 them became a plaintiff in the sense of a member of Log Cabin
14 Republicans who was injured by the policy.
15 You know, what I think the Government is missing is
16 that this isn't intended to show you the entire universe of
17 information about efforts to locate plaintiffs or members who
18 have been injured by the policy. What we did was to find for
19 you the person who had personal knowledge about this Colonel
20 Doe. So I think the Government was sort of reaching a little
21 bit in trying to suggest that we are manufacturing anything.
22 And I never have seen the Government try even to claim in
23 this case that Colonel Doe does not exist.
24 And, remember, Your Honor, at the beginning of this
25 when we were first asked by Judge Schiavelli to name somebody

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1 by name, we suggested to the Government that we would name


2 Colonel Doe by name if the Government would agree not to take

3 action against him, and the Government declined.


4 THE COURT: Right. I understand that.
5 MR. WOODS: We are in that position because of the
6 Government's refusal to agree to that process that we had
7 suggested.
8 MR. FREEBORNE: Your Honor, what we were arguing,
9 and it's based upon the Meekins' declaration, is that they
10 decided to bring this lawsuit and then they were trying to

11 enlist as members service members within the Armed Services


12 who are not members.
13 THE COURT: Right. But you're not contending that
14 Colonel Doe does not exist?
15 MR. FREEBORNE: No, Your Honor. Although the
16 declaration does have some discrepancies in that regard when
17 it talks about Colonel Doe and then it talks about him as an
18 enlisted service member as opposed to a commissioned service
19 member.
20 THE COURT: I wondered about that. I'm not
21 entirely familiar with the difference between those terms,
22 but familiar enough. You can enlist and be an officer. I
23 mean, only you're commissioned when you're an officer.
24 MR. FREEBORNE: Your Honor, but our primary concern
25 is the concern that was identified in the

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1 Washington Legal Foundation case. A proper associational


2 plaintiff should have a membership that has been harmed in

3 whatever way you're now seeking to base your challenge upon.


4 You should have an existing membership. That's why you have
5 associational standing. You shouldn't have an entity like
6 Log Cabin Republicans challenging the constitutionality of a
7 duly enacted statute and then trying to get members to
8 support your lawsuit. That's not the way it's supposed to
9 work.
10 And so when I make the point, that's related to the

11 facial challenge point. I'm not saying that they're


12 sinister. I'm just saying that the Court should be careful
13 when it exercises its Article III powers to ensure there's a
14 case for controversy. And facial challenges --
15 THE COURT: I understand your point about facial
16 challenges. You've cited your authorities on that point.
17 And I think I understand better your position with
18 respect to identity of the Doe member in this case.
19 All right. I'm going to take a recess so I can
20 take care of this status conference in my other case and then
21 we'll continue on at about 3:40. Thank you.
22 (Recess)
23 THE COURT: All right. Let's turn to the next
24 issue which is partly an issue connected to the standing
25 issue and partly an issue that is related to the merits. And

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1 that is the argument that the Government raises about whether


2 as to Colonel Doe -- I'm sorry, let me find it in my notes

3 here. That as he has never been discharged and, as the


4 Government argues, the "Don't Ask, Don't Tell" policy has
5 never been applied to him, the Government argues that his
6 asserted harm is based on a future possible conjectural or
7 hypothetical application of the policy; and therefore, this
8 doesn't satisfy the standing requirements of a concrete and
9 actual or imminent injury.
10 The cases that the Government cites in support of

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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1 Lyons, which originated in this District but is a United


2 States Supreme Court case. That's the choke hold case which

3 does deal with the issue of whether the plaintiff satisfied


4 the requirement of showing a concrete particular imminent
5 injury. And so while it talks about whether the plaintiffs
6 who were added -- no, I'm sorry, there weren't plaintiffs
7 added in that case.
8 That was the case where the plaintiff filed suit
9 because he was arrested after a traffic violation subject to
10 the choke hold applied by an LAPD officer which injured his

11 larynx and then sued to prevent future such injury. The


12 Supreme Court held that there wasn't really a danger of such
13 an incident happening again; that is, that he be arrested for
14 a minor traffic violation, and according to the allegations
15 in the complaint, immediately subject to -- even though he
16 wasn't resisting, according to the complaint, being subject
17 again to a choke hold, because among other things, there had
18 been 15 deaths from choke holds in the meantime and the LAPD
19 had changed its policy. But all of the other facts involved
20 also made it conjectural.
21 That case is just so dissimilar from ours that -- I
22 didn't think any of the -- neither side really cited the line
23 of cases that I was looking for, that I thought were the line
24 that would be similar factually and persuasive, which would
25 be cases where somebody was threatened with prosecution or

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1 thought they faced imminent prosecution.


2 So I found a number of cases that I think are

3 either closer factually or provide such a contrast that they


4 aluminate the problem that the defense is pointing to here.
5 First, Babbitt v. United Farm Workers, which is
6 442 U.S. 289, which first sets forth the principle that a
7 plaintiff who challenges a statute must demonstrate a
8 realistic danger of sustaining a direct injury as a result of
9 the statute's operation or enforcement. And it relies on
10 O'Shea v. Littleton, which I think the Government did cite

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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1 There's a policy, it's enforced, and the injury to a member


2 of the Armed Forces while serving, that it's simply not

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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1 we're left with his potential discharge. And our argument is


2 that because he has served, any threatened separation is

3 inherently speculative. It is not imminent or impending as


4 the term is used in the Babbitt decision.
5 And as Your Honor is aware, the O'Shea case is
6 referenced in Lyons, so that analysis is subsumed within the
7 Lyons analysis. That analysis is important here because what
8 plaintiff is seeking to do is to enjoin the enforcement of a
9 federal statute in seeking declaratory injunctive relief,
10 which Lyons speaks to and points to the heightened showing

11 that must be provided in that context, as does the


12 Hodgers-Durgin case that we cited.
13 THE COURT: But if this is not a case where, as in
14 the language I just read to you, one doesn't have to await
15 the consummation of threatened injury to obtain preventive
16 relief, but one who challenges the statute just has to
17 demonstrate a realistic danger of sustaining injury, if this
18 isn't that case, what would be the case? I mean, there's a
19 policy the Government has stated. The policy exists. It's
20 the Government's duty to enforce it. So if this is not such
21 a case, how could there be a case where there is a more
22 direct danger of concrete, impending injury?
23 MR. FREEBORNE: Well, Your Honor, with respect to
24 the statements analysis, Your Honor is aware that the service
25 member can rebut the presumption as it relates to that

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1 statement. There's a whole discharge proceeding that would


2 have to occur before the service member would have to be

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

11 law had said.


12 THE COURT: Well, Ms. Witt had served for
13 approximately 20 years, so the length of service doesn't seem
14 to -- and yet the -- I think her branch was the Navy, but
15 they initiated separation proceedings against her. So if
16 your argument is that once somebody has served a certain
17 number of years, they're less likely to initiate separation
18 proceedings, the reported cases have no support for that
19 proposition.
20 MR. FREEBORNE: Your Honor, the difference here is
21 they're seeking declaratory injunctive relief, which again,
22 Lyons speaks to, and it was not at issue in the Witt case.
23 THE COURT: But your argument -- if I understood
24 your argument correctly, you seem to be saying, well, he
25 served for 20 years so they're not likely to initiate

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1 separation proceedings. There just doesn't seem to be any


2 support for that proposition.

3 MR. FREEBORNE: Our argument is it's inherently


4 speculative and should not be the basis for awarding
5 declaratory injunctive relief, and they do not have standing
6 to pursue that claim. That's our argument.
7 THE COURT: How is it speculative?
8 MR. FREEBORNE: Again --
9 THE COURT: There is a policy. The Government
10 enforces the policy. So how is it speculative that

11 separation proceedings would be initiated?


12 MR. FREEBORNE: Your Honor, again, his conduct.
13 He, by his own admission, has served many years without being
14 subject to the policy. And any harm that would result from
15 the policy is inherently speculative. I'm not sure how much
16 I can add to the analysis, but that's our argument. It's
17 much like the stop case in Hodgers-Durgin where the
18 individual there was allowed to cross the border without
19 incident, and here he's served for many years without being
20 discharged.
21 THE COURT: Well, according to the policy, which is
22 Sections 654(b)(1), (f)(3)(A)-(B) of Title 10, the defendants
23 may initiate separation proceedings if a service member
24 engages in a homosexual act, which is further defined as any
25 bodily contact actively undertaken or passively permitted

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1 between members of the same sex for the purpose of satisfying


2 sexual desires; and any bodily contact which a reasonable

3 person would understand to demonstrate a propensity or intent


4 to engage in an act described in subparagraph (A), and such
5 acts include holding hands and kissing, which is found in the
6 regulations at 1332.14 at E3.A41.2.4.1; or, just to give a
7 couple of examples, or the defendants may initiate separation
8 if the service member makes a statement that he or she is a
9 homosexual or words to that effect.
10 So I've been quoting from two parts of the policy.

11 The Government -- I don't mean to keep repeating myself. The


12 Government enforces the policy, so if -- I'm really having a
13 hard time understanding your argument that the harm -- the
14 injury, that is, that he be subject to what's called
15 separation proceedings, that is, he be discharged, isn't the
16 concrete and particular and imminent injury. The fact that
17 he has served 20 years, that's sort of irrelevant.
18 MR. FREEBORNE: Well, Your Honor, in any case, he
19 has not been the subject of the policy. He has served
20 without incident. It makes it just like the stop cases that
21 we've cited and the choke hold case.
22 THE COURT: He has been the subject of the policy.
23 MR. FREEBORNE: He has not been the subject of
24 discharge proceedings because he has operated within the
25 confines of the statute. And so to use him as a basis to

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1 seek declaratory injunctive relief is improper under Lyons,


2 Hodgers-Durgin and the other authority that we cited.

3 THE COURT: Do you wish to respond?


4 MR. WOODS: Yes, Your Honor. Thank you.
5 Colonel Doe has been injured every day of his
6 service under "Don't Ask, Don't Tell." He is not allowed to
7 express his core identity. He is not allowed to engage in
8 the type of private consensual conduct that he might wish to
9 engage in. And he's not even allowed to participate, as he
10 ought to be allowed to participate, in this case. So he has

11 been injured every day.


12 There is no legal requirement, as the Government
13 would like to suggest, that he must be discharged before he
14 could have standing to sue. If you take the Government's
15 argument to its natural end, then no current member of the
16 Armed Forces could challenge this statute prior to being
17 discharged. No one. The thousands and thousands of our
18 Armed Forces, they would argue, no one could challenge it
19 because you haven't been discharged.
20 And then, Your Honor, here's what they would do
21 next, as they did in this case before when we put in Mr.
22 Nicholson to the case initially. They then argued that,
23 well, Mr. Nicholson has been discharged; therefore, he can't
24 be the person who represents those people who are currently
25 serving. So they want to have it both ways and they can't

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1 have it either way. The position just doesn't make sense,


2 Your Honor. There's no case they've cited to you that says

3 the only injury that counts in this context is discharge.


4 Assuming that we're right in our constitutional law
5 analysis of this case, Colonel Doe's rights have been
6 violated every day that he has been in the service since
7 "Don't Ask, Don't Tell" was enacted. And that's the point
8 we're trying to make, that he has been injured.
9 And, again, going back to the burden issue, and
10 again, there is at least, Your Honor, a genuine issue of

11 material fact about this that precludes summary judgment.


12 THE COURT: Well, I mean there's at least two ways
13 of looking at what the injury is, and they're not necessarily
14 mutually exclusive. But one of the injuries, going back to
15 the argument you made just a moment ago, your argument is
16 that the Government is trying to have it both ways. At least
17 one of the injuries is the discharge, the separation
18 procedure. So if Colonel Doe is identified, then he would be
19 subject to -- according to the regulations and the statute
20 that I've read, he would be subject to discharge under the
21 policy.
22 MR. WOODS: Correct. So that's a real risk of
23 injury to him. That's not speculative. It's not
24 conjectural. It's real. And, again, we tried to avoid that
25 by offering to stipulate with the Government that he would

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1 come forward and identify himself by name as long as no


2 discharge proceedings were brought, and the Government

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

11 his declaration, because he desires the same right to


12 communicate the core of emotions and identity to others as
13 granted to heterosexual members of the United States Armed
14 Forces. In other words, he has to every day live a lie about
15 who he is, and that's an injury. That gives him standing to
16 bring a due process claim in this case.
17 THE COURT: But the other type of injury that we've
18 been discussing, that is, the danger of discharge, is
19 sufficient --
20 MR. WOODS: Yes.
21 THE COURT: -- as for a standing purpose.
22 MR. WOODS: Yes, it is. And he's very concerned
23 about this risk by even the minimal participation that he's
24 been involved in in this case. He's very concerned about the
25 fact that we've now told you that he is a lieutenant colonel,

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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

3 to find out who he is so that they could discharge him. So


4 we think, Your Honor, for all the reasons you've already
5 articulated that there is standing, and, of course, there are
6 no genuine issues about whether standing exists.
7 THE COURT: All right. Let me last focus on some
8 of the issues regarding the timing of -- well, let me start
9 with focusing on the evidentiary problems.
10 As I said, I did not have a chance to review the

11 plaintiff's filing this morning on the evidentiary problems,


12 but before -- I haven't even looked at it, but before I
13 decided that there was this threshold issue of standing in
14 reviewing the motion, there were -- so I'm not even sure what
15 I'm about to articulate as to the evidentiary deficiencies in
16 the Government's moving papers are the subject of the
17 evidentiary objections or whether my focus on the evidentiary
18 deficiencies in the Government's moving papers are different
19 ones than the plaintiff has objected to.
20 But the moving papers in this case, to my
21 recollection, almost none of the exhibits that were submitted
22 in support of the moving papers could be considered by the
23 Court. They are not authenticated by a declaration of
24 counsel to the extent that they could be so authenticated.
25 The exhibits attached to the appendix of exhibits

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1 that are or purport to be excerpts of deposition transcripts


2 do not bear the necessary certificate of the court reporter.

3 Those can't be authenticated by a declaration of counsel.


4 They have to have the certification of the court reporter.
5 And there's a number of cases that set forth that
6 requirement. Orr v. Bank of America is the case most that I
7 usually cite in my orders with respect to that. So I would
8 not be able to consider any of the deposition transcripts.
9 And to the extent there's an objection that's been filed, I
10 would sustain that objection.

11 There's no declaration of counsel authenticating


12 the other exhibits, so -- let's see. The first four exhibits
13 are deposition transcripts. The fifth one is an e-mail.
14 That would take a declaration of counsel, but I'm not --
15 that's the one about being an honorary versus a dues paying
16 member. So that's not authenticated and it's not a
17 self-authenticating document.
18 Exhibit 6, again, it's not a self-authenticating
19 document, but I think both sides have relied upon that
20 document. That's the letter from Mr. Nicholson. I think if
21 both sides have relied upon it then that might be
22 admissible.
23 And Exhibit 7 is the letter from Mr. Nicholson's
24 attorney, Mr. Cleghorn. I think the same thing applies. I
25 think both sides have relied on that. If I'm correct about

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1 that, then Exhibits 6 and 7 could be considered, but the rest


2 of them couldn't be, which would affect the extent to which

3 the Court could consider some of the arguments raised in the


4 moving papers.
5 And as to the first four, even without an objection
6 from the other side, the case law is clear that the Court
7 should not consider the deposition transcripts without a
8 court reporter's certification. So that especially affects
9 the Court's ruling on the substance of the motion, the merits
10 of the motion, as to the substantive due process claim.

11 There's certain portions of -- well, to a large extent, that


12 would affect the Court's ruling on the substantive due
13 process claim.
14 If I'm correct in my recollection that Exhibit 6, I
15 think it's 6 and 7, the letters regarding Mr. Nicholson,
16 were relied on by both parties, then the Court could consider
17 those. And those have more of an effect on the First
18 Amendment claim.
19 Do you wish to be heard on that issue?
20 MR. FREEBORNE: Your Honor, with respect to the
21 depositions, as you know, we were up against the discovery
22 deadline. We did lodge all of the depositions that we had at
23 the time of the filing with the Court.
24 THE COURT: Have the originals been lodged?
25 MR. FREEBORNE: Yes.

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1 THE COURT: Then that would cure that.


2 MR. FREEBORNE: And with respect to the letters,

3 Mr. Hunnius and I have had communications about -- we


4 actually, given that they were produced by the plaintiff --
5 THE COURT: I don't think there's an issue.
6 MR. FREEBORNE: I just wanted to address them
7 both. With respect to -- we also did reference articles of
8 incorporation in our reply brief, and that was certified to
9 by Secretary of State --
10 THE COURT: Those are self-authenticating once

11 you've got the certification.


12 MR. FREEBORNE: With apologies, we weren't trying
13 to run afoul, given the time for the depositions, and we have
14 lodged all the depositions that we had at the time of filing.
15 THE COURT: When did you lodge the depositions?
16 MR. FREEBORNE: Your Honor, I could find the day.
17 I don't have it handy right now. It was before we filed. It
18 was in accordance with whatever the rules say. I forget the
19 time frame.
20 But to be clear, we also had a read and sign issue
21 given that most of the depositions were taken late in the
22 day. So, again, Mr. Hunnius and I have discussed that.
23 THE COURT: If you lodge the originals, then that
24 takes care of the certification issue.
25 MR. FREEBORNE: Very well. Thank you.

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1 THE COURT: Then let's turn lastly to the combined


2 issues of the trial date. I'm thinking, unless either side

3 -- I don't think I need any more briefing on the standing


4 issue.
5 On the merits issue, whether the parties want to
6 come back and argue the merits, the only real issue that I
7 would -- I'm not sure whether more argument is necessary.
8 You could argue it briefly this afternoon. But if I were
9 inclined to -- having reread Witt and read everything that
10 the parties have submitted in connection with the substantive

11 due process claim, to hold that -- given that in Witt there


12 wasn't a facial challenge as there is here, I mean there
13 wasn't one even brought. It's not as though one was brought
14 and dismissed by the court. The only challenges brought in
15 Witt were an equal protection claim, a substantive due
16 process claim, and a procedural due process claim. There was
17 no facial claim brought.
18 And, of course, what the Witt court held was that
19 Philips v. Perry and some of the earlier Ninth Circuit
20 holdings, which held that the most deferential standard of
21 review applied, were no longer good law on the standard of
22 review after the Lawrence case. So, in a sense, one could
23 look at Witt and say that the language in the Witt opinion
24 about a different standard of review, and I quoted that
25 language in the order on the motion to dismiss, would be

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1 better considered as dicta because, as I just said, there


2 wasn't a substantive -- there wasn't a facial attack being

3 considered by the court.


4 So if I was to reconsider that ruling and hold what
5 I would call the Witt standard, something more than the most
6 deferential standard of review applied, let me ask the
7 Government. First, does that change -- I mean, you've argued
8 in your papers that the policy withstands the deferential --
9 an attack based on the most deferential standard. Does it
10 change your position if the Witt standard applies, which is

11 kind of loosely defined as something more than the most


12 deferential standard?
13 MR. FREEBORNE: Well, Your Honor, I'm a little
14 confused because Your Honor ruled in June of last year the
15 rational basis governs this case because this is not the
16 as-applied challenge that was presented in Witt. So just
17 understanding Your Honor's question, are you now changing
18 your ruling or thinking about changing your ruling?
19 THE COURT: Yes.
20 MR. FREEBORNE: Your Honor, we believe we can
21 satisfy heightened scrutiny, but we have proceeded and
22 argued, of course, based upon the rational basis test that
23 was enunciated in the Court's June 9th decision. We don't
24 believe it changes the Salerno test, which is, we need only
25 point to one conceivable constitutional application in this

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1 case. And we believe Philips is still good law on that, and


2 that Congress could have, back in 1993, made the

3 determinations that it did. As Your Honor is aware, we've


4 also relied upon the Western case which instructs that the
5 Government -- Congress could have concluded back in 1993 that
6 the policy was necessary for military effectiveness.
7 That said, we believe we would also win under a
8 Beller-type analysis. And we don't believe that Beller was
9 disturbed in any way by the Witt decision. We would take
10 issue with the Court. We don't believe that Philips was

11 overturned by Witt, but I think we've had that discussion in


12 the past. But we do believe we could win under Beller and
13 the test and substantive due process analysis that was set
14 forth there by Judge Kennedy. And we believe that that
15 analysis is particularly instructive here given that Judge
16 Kennedy became Justice Kennedy and issued the Lawrence
17 decision, and said pointedly that this is just a different
18 sphere, that this is the military sphere and the courts are
19 to defer to military judgment and Congress's judgment in
20 exercising its constitutional authority.
21 So, again, we believe we would prevail under either
22 standard. We have been proceeding along the lines that were
23 set forth on the Court's June 9th decision order.
24 THE COURT: Let me ask you. There was something in
25 particular -- my color coding system has failed me. I

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1 thought I had a green tab on the particular language I wanted


2 to ask you about to follow up on that.

3 In your moving papers, and let me give you some


4 context, this is when you're discussing the policy and the
5 background to its adoption in the hearings and so forth. I
6 recall the legislative history of it. You go on to talk
7 about these 15 legislative findings that, of course, you urge
8 the Court to apply deference to, but there's a quote that you
9 include from the Senate Armed Services Committee. If you
10 have your papers there, it's on page 5 of the points and

11 authorities starting at line 15 --


12 MR. FREEBORNE: Yes, Your Honor.
13 THE COURT: -- about sexual behavior. Among both
14 heterosexuals and homosexuals sexual behavior is one of the
15 most intimate and powerful forces in society. I won't go on
16 to read the whole quote, which is kind of lengthy, but the
17 finding goes on to say, basically, that there's no
18 presumption that the military has -- I would sort of
19 characterize it as a matter of common sense -- in dealing
20 with adults there's no presumption that everyone is going to
21 remain celibate. The bit about common sense, that's my
22 editorializing. It says, "When dealing with issues, the
23 Armed Services do not presume that service members will
24 remain celibate."
25 But the language in particular that I think is

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1 important that I wanted to ask you about in connection with


2 all of this quote here is about the -- I would almost call it

3 sort of an admission on the part of, for these purposes, the


4 Government about the importance of this, because in terms of
5 thinking of what the standard of review here is, when courts
6 determine what standard of review to apply, one of the --
7 well, let me start over a little bit.
8 In looking at, you know, what was first a
9 deferential standard and then the strict scrutiny and then
10 there was an intermediate standard, I think what the Witt

11 court enunciated was somewhere between the most deferential


12 standard and the intermediate standard. But, in any event,
13 in all of the standards of review that courts have enunciated
14 in looking at constitutional issues, one end of the balance
15 is the right that's being considered. And here what we have
16 is this language about one of the -- pointing to one of the
17 most intimate and powerful forces in society.
18 So, I guess my question is, on the one hand what is
19 being considered here is, it is conceded to be something that
20 is so crucial and important at the same time the Government
21 is saying we have to -- and we're admitting that we're not
22 going to presume that adults are going to just forswear that
23 important part of human life. Then doesn't that sort of cut
24 against the Government's position in this case, that a
25 deferential standard of review should apply?

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1 MR. FREEBORNE: Your Honor, it's a good question.


2 What this instructs the Court about is the fact that this is

3 a conduct-based policy, and what Congress's determination


4 back in 1993 was, that the same forces that dictate this
5 policy exist within the genders. And we've recognized, for
6 example, with men and women, as we've discussed previously,
7 separate accommodations are necessary between men and women
8 to accommodate the sexual tension privacy rationale that
9 we've discussed before. So that doesn't dictate a higher
10 level of review. With cases like Palmore and Lawrence and --

11 THE COURT: You're right it doesn't dictate -- I


12 didn't mean to suggest and maybe I worded the question
13 poorly, because I don't mean -- you're correct. I don't mean
14 to suggest it dictates the standard of review. Within the
15 standard of review that's selected, of course, the right
16 that's being protected is one of the factors that's balanced,
17 would be a better way of articulating my question.
18 MR. FREEBORNE: On that issue, Your Honor, the
19 Court recognized in the equal protection analysis in the
20 June 9th decision that there is no fundamental right to
21 engage in homosexual consensual sex. I mean Lawrence doesn't
22 endorse that. So Your Honor has ruled that there is no such
23 fundamental right. We believe rational basis is the
24 governing standard, because you don't even have active
25 rational basis review in a case like Palmore where the

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1 exclusive purpose was to single out a particular group based


2 upon status, or in Lawrence where you have criminalization of

3 the behavior, which is not present here. In Cleburne, again,


4 you're singling out a particular group that you don't happen
5 to like.
6 This is a conduct-based policy. And for that
7 reason, that's why courts have universally held, with the
8 exception of Cook, and I'll get to Cook in a second which I
9 think goes back to Your Honor's first question, have found a
10 rational basis review is the appropriate standard.

11 I don't want to fail to mention Cook. In Cook, as


12 Your Honor is aware, that heightened scrutiny was applied
13 there and the policy was found to pass constitutional muster.
14 Even under that standard faced with a motion to dismiss, the
15 First Circuit found that. I just didn't want to leave that
16 out.
17 So, for all those reasons, we believe rational
18 basis review applies; that even the more active form that you
19 find in Romer doesn't apply, because the stated evidence is a
20 conduct-based policy, not a status-based policy. Every court
21 to have considered this statute has so found.
22 THE COURT: All right.
23 Mr. Woods.
24 MR. WOODS: I'm not entirely sure what the original
25 question was, but let me start by talking about the Cook case

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1 which Mr. Freeborne just mentioned. The Cook case is this


2 First Circuit case. And the First Circuit decided that case

3 after Witt. And the First Circuit in Cook said repeatedly


4 that it acknowledged that it disagreed with. And so it's
5 pointless for a court in this Circuit to talk about the Cook
6 case or rely on the Cook case or even to be guided by the
7 Cook case.
8 We think, Your Honor, that we've briefed this issue
9 and explained or tried to that some more -- some more active
10 review than the lowest possible form of review is appropriate

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 issues of material fact about whether the statute was


2 constitutional when it was enacted, whether what we now know

3 about the statute shows that it wasn't constitutional when


4 enacted, and whether the situation has now changed.
5 We've presented to you an enormous amount of
6 evidence showing that there was no study done at the time to
7 show that the policy furthered its stated objectives. We've
8 shown you that there were studies of foreign militaries at
9 the time. It showed that a ban of homosexuals or homosexual
10 conduct was not necessary to further for purposes of the

11 military to those countries. We've shown you that the policy


12 is disproportionately applied to women. We've shown you that
13 the policy is disproportionately applied in times of peace
14 rather than war, which tells us that it really isn't enforced
15 as it is supposed to be, if that's the purpose of it. We've
16 shown you that and much, much more in our opposition in the
17 four volumes of evidence that we submitted, and as to which,
18 Your Honor, there is no evidence submitted by the Government
19 in response.
20 What's important is the Government submitted some
21 evidentiary objections to some of our evidence. There is no
22 evidentiary objection by the Government to a single piece of
23 our expert's declaration in support of our opposition. And
24 what we filed today, Your Honor, was actually our response to
25 the Government's evidentiary objections filed to our

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1 materials.
2 Let me mention, Your Honor, the point that

3 Mr. Freeborne suggested again about how you ought to defer to


4 the military. And, again, as we've said, we're not asking
5 you to decide for the military how many tanks to buy or how
6 many missiles to launch, we're asking you to rule on the
7 constitutional rights of citizens of our country. And
8 deference to the military ought not mean abdication of the
9 Court's traditional role in adjudicating constitutional
10 rights. Witt is a good example of that. We cited other

11 cases in our opposition to the Government's motion on that.


12 The Government didn't dispute at all our citation of the
13 Hamdi case, H-A-M-D-I, the Hamdan case, H-A-M-D-A-N. And so
14 there's no doubt this Court ought not defer to the military
15 on important constitutional rights.
16 I continue, Your Honor, to find it curious that the
17 Government is asking you to, again, defer to the military on
18 this, because what the Government's current military leaders
19 are saying is in our opposition papers, not in the
20 Government's papers. And there's no response in the
21 Government's reply to the evidence that we've put forth about
22 the views of the military leaders today. These are
23 admissions against the Government's interest about whether
24 there is or isn't a rational basis.
25 We cited to you Colin Powell's statements in

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1 February of 2010, that circumstances have changed since


2 "Don't Ask, Don't Tell" was enacted, and the Government did

3 not reply to that.


4 We have President Obama's statements as Commander
5 in Chief that "Don't Ask, Don't Tell," quote, doesn't
6 contribute to our national security, close quote, and, quote,
7 weakens our national security, close quote. And that "Don't
8 Ask, Don't Tell" -- I'm sorry, and that reversing "Don't Ask,
9 Don't Tell," quote, is essential for our national security.
10 Again, there's no response by the Government in its

11 reply papers to these admissions against its interests.


12 The Government also ignored and didn't respond to
13 admissions made by Admiral Mullen, the General of the Joint
14 Chiefs of Staff who said that he was not aware of any studies
15 or any evidence that suggests that repealing "Don't Ask,
16 Don't Tell" would undermine unit cohesion.
17 And Secretary Gates also said that what they need
18 to address in some study that's going on now are assertions
19 that have been made for which we, quote, have no basis in
20 fact. And, again, the Government didn't respond to this. So
21 it's a little curious that the Government would be arguing
22 about deferring to the military when the military is on our
23 side, for lack of a better word.
24 And I guess, Your Honor, it's because the
25 Government's brief and all the cases it cites are out of the

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1 '90s. What we have here in the Government's motion are Colin


2 Powell's statements from the '90s and people's statements

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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1 plaintiff's substantive due process claims.


2 So, I guess, Your Honor, I would say this: We

3 argued a motion to dismiss the due process claim some time


4 ago. What the Government is doing now is basically asking
5 you to review or revisit that decision without any real
6 reason to do that. It's arguing the same points, citing the
7 same cases, and we're right back where we were some time ago.
8 The only so-called evidence that the Government has
9 provided in support of its motion are just a few snippets
10 from testimony from the congressional hearings. That's all.

11 And we have provided you with, you know, a voluminous amount


12 of evidence that we think is admissible, much of which is
13 unchallenged, to show you that there are entities, again,
14 genuine issues of material fact, regardless of which standard
15 you decide to employ.
16 THE COURT: All right.
17 MR. WOODS: I'm happy to answer any other
18 questions, Your Honor.
19 THE COURT: I appreciate that.
20 I think what I'm going to do is to take the motion
21 under submission. If I feel that, and I may, but if I feel
22 that I need to have further argument on the merits, we will
23 notify the parties and pick a date that's convenient for both
24 sides. At this point I don't think I'm going to need to have
25 any further argument.

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1 As to your trial date, what is the current status


2 of that, even apart from the issues created by the delay of

3 getting a ruling to you on the motion because of this


4 threshold issue of standing? Everything was good for
5 June 15th until last Wednesday when, you know, it's like a
6 series of Dominoes. Everything was great until I had a
7 criminal case that was supposed to start, and I won't give
8 you all the gory details, but there was a little issue
9 between the defendant and his attorney, and as a result of
10 that there is a short -- and it's a case that really is going

11 to go to trial, and so I had to grant a short continuance of


12 that trial which was supposed to start on May the 4th. So
13 it's now starting on May the 18th, which wouldn't be so bad
14 except that because of that, the civil case that was starting
15 behind it, which would have been finished in time for your
16 case to start on June 14th, now has to follow that case. And
17 so by the time I finish that civil case, I probably would
18 have had to continue your case about one week anyway.
19 Let's see. Do I have that right? So I probably
20 wouldn't have been able to start your case until the end of
21 -- I would have had to continue your case about two weeks
22 which is, in fact, out. So, I mean, all of which could
23 change if I'm wrong and the defendant in my criminal case
24 decides tomorrow to plead, but I don't think that will
25 happen.

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1 So your case was supposed to start on June 15th.


2 Realistically, probably -- so the last of your pretrial

3 documents were due around the middle of May. So if we move


4 your trial -- what are your schedules? I know summer is
5 difficult for people. If you have vacations, speak up. I
6 realize you may have to contact your witnesses and so forth.
7 What I'm looking at for a trial date for you now is probably,
8 oh, about the first week of July.
9 You look pained, Mr. Freeborne.
10 MR. FREEBORNE: I'm blanking on a week. I do have

11 something planned I believe the first week in July.


12 THE COURT: Any time -- I'm going to give you --
13 this is an older case, so I'm going to give you all priority
14 for trial, but if you have plans --
15 MR. FREEBORNE: If I could alert the Court, I just
16 have to check.
17 THE COURT: I'm just letting you know. I'm going
18 to try to set it on a date in July that's good for everyone,
19 so check your witnesses, check your calendars, and --
20 MR. FREEBORNE: Your Honor, can I just be heard?
21 THE COURT: Certainly.
22 MR. FREEBORNE: I'm sorry. We would ask for
23 additional briefing on a few of the standing issues that the
24 Court raised today on the Loux case, McLaughlin and Lujan,
25 particularly the intersection or the comparison between class

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1 certification and associational standing. We believe that we


2 could afford the Court with --

3 THE COURT: All right. Ten pages, no more than


4 ten pages by a week from today.
5 MR. FREEBORNE: And we would also like to depose
6 Mr. Meekins on the standing issue, and particularly on the
7 transfer issue, which seems to be critical in this case, the
8 transfer of the monies. We're not asking at this juncture to
9 depose Colonel Doe, but we do believe we are entitled to a
10 deposition of Mr. Meekins.

11 And I also have some points on the substantive due


12 process point. I can basically condense them down to, what
13 Your Honor is looking at in this trial is just a replay of
14 1993. The foreign militaries, yes. Congress had before it
15 the comparison between foreign militaries and all of the
16 evidence that plaintiff is going to be providing to you
17 during the course of this trial, which is a replay of 1993,
18 which we believe is inappropriate on a rational basis review.
19 And military judgments are just not susceptible to empirical
20 proof. So the thesis of Mr. Woods' argument, the plaintiff's
21 argument, is that because this policy is not somehow
22 susceptible to empirical proof, it's necessarily invalid.
23 THE COURT: I think that's been briefed. I think
24 you've --
25 MR. FREEBORNE: I was trying to condense it, but I

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1 did want to be heard on that issue, because we believe very


2 strongly that, A, this type of review is inappropriate, but,

3 B, it's just a replay of 1993, and the appropriate place to


4 consider this policy is within the political domain, not in
5 this court.
6 THE COURT: Well, if you want to include that
7 within your ten pages, you may. I think you've briefed it.
8 I think both sides have briefed it, but you can argue it
9 further, if you wish, in a supplemental briefing. Both sides
10 may file a supplemental brief by a week from today.

11 Now, as to the deposition of Mr. Meekins, let me


12 think about that.
13 MR. FREEBORNE: Mr. Woods has said it's a genuine
14 issue of fact. We seek to explore that issue of fact.
15 THE COURT: This case is being tried to the Court,
16 so I'm not inclined to -- well, it goes without saying this
17 case -- I mean, on the one hand, every case is unique and has
18 to be looked at uniquely. On the other hand, this case has
19 to be treated in a procedural fashion like any other case.
20 After a summary judgment motion and after discovery is cut
21 off and if a triable issue of fact has been shown to exist,
22 there isn't discovery about it. It's over. So, I'm not
23 inclined to -- assuming that I deny the motion, I'm not
24 inclined to allow further discovery on that issue. I'll
25 think about that, but I'm not inclined to allow further

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1 discovery, especially given that this is a case that's going


2 to be tried to the Court.

3 MR. FREEBORNE: Your Honor, all we're asking for


4 is, if this issue is going to be tried before the Court, that
5 we properly prepare for trial by being allowed to depose a
6 witness that was not identified by plaintiff in their 26(f)
7 disclosures. We would seek to depose Mr. Meekins on this
8 critical issue, this threshold issue.
9 THE COURT: I know what you're asking. I
10 understand what you're asking. I'll consider that, but it's

11 unlikely I'm going to allow it. Well, it's unlikely I'm


12 going to allow it. There might be other limited discovery
13 that could take place, such as written interrogatories, very
14 limited written interrogatories that I'd consider. A
15 deposition by written interrogatories, something like that.
16 I'll consider the request.
17 All right. So the parties should confer about a
18 trial date sometime in -- the earliest possible date in July
19 that the parties can agree upon that's satisfactory to your
20 schedules and to your witnesses. And you might submit a
21 couple of dates that are mutually agreeable. And then I will
22 give you notice of the continued trial date and pretrial
23 conference date.
24 MR. WOODS: How would you like us to communicate
25 that to Your Honor?

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1 THE COURT: By virtue of a stipulation. If you're


2 not able to agree, then at least set forth what the

3 difficulties are and what your first, second, and third


4 choices are, I suppose, in writing.
5 Thank you very much.
6 The motion will stand submitted as of a week from
7 today when your briefs are due.
8 (Proceedings concluded)
9 ---o0o---
10

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C E R T I F I C A T E
DOCKET NO. CV 04-8425 VAP

I hereby certify that pursuant to Section 753,


Title 28, United States Code, the foregoing is a true and
accurate transcript of the stenographically reported
proceedings held in the above-entitled matter and that the
transcript page format is in conformance with the regulations
of the Judicial Conference of the United States.

/S/ Phyllis Preston


PHYLLIS A. PRESTON, CSR DATED: May 18, 2010
Federal Official Court Reporter
License No. 8701

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1
2
3
4
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
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 "implementing instructions") 1332.14, 1332.30, and


2 1304.26. Defendants now move for entry of summary
3 judgment.
4
5 I. BACKGROUND
6 A. The DADT Policy
7 The DADT Policy includes both the statutory language
8 appearing at 10 U.S.C. section 654 and the implementing
9 instructions appearing as DoDIs 1332.14, 1332.30, and
10 1304.26. DADT can be triggered by three kinds of
11 "homosexual conduct:" (1) "homosexual acts"; (2)
12 statements that one "is a homosexual"; or (3) marriage
13 to, or an attempt to marry, a person of one’s same
14 biological sex. 10 U.S.C. § 654 (b); DoDI 1332.14 at
15 17–18; 1332.30 at 9–10.
16
17 1. "Homosexual Acts"
18 First, Defendants may "initiate separation
19 proceedings" — i.e., begin the process of removing an
20 active service member from military ranks — if a service
21 member engages in a "homosexual act," defined as "(A) any
22 bodily contact, actively undertaken or passively
23 permitted, between members of the same sex for the
24 purpose of satisfying sexual desires; and (B) any bodily
25 contact which a reasonable person would understand to
26 demonstrate a propensity or intent to engage in an act
27
28
2

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1 described in subparagraph (A)." 10 U.S.C. § 654 (b)(1),


2 (f)(3).
3
4 2. Statements About One's Homosexuality
5 Second, Defendants may initiate separation if a
6 service member makes a statement "he or she is a
7 homosexual or bisexual, or words to that effect." 10
8 U.S.C. § 654(b)(2). These words create a presumption the
9 service member is a "person who engages in, attempts to
10 engage in, has a propensity to engage in, or intends to
11 engage in homosexual acts." 10 U.S.C. § 654(b)(2). A
12 propensity is "more than an abstract preference or desire
13 to engage in homosexual acts; it indicates a likelihood
14 that a person engages or will engage in homosexual acts."
15 DoDI 1332.14 at 18.
16
17 3. Marriage or Attempted Marriage to a Person
18 of the Same Sex
19 The third route to separation under DADT, marriage or
20 attempted marriage to a person of the same sex, is self-
21 explanatory.
22
23 4. Discharge
24 Once Defendants find a service member has engaged in
25 "homosexual conduct," as defined above, Defendants will
26 discharge him or her unless the service member can
27 demonstrate that, inter alia, such acts are not his or
28
3

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1 her usual or customary behavior and that he or she has no


2 propensity to engage in "homosexual acts." 10 U.S.C. §
3 654(b)(1); DoDI 1332.14 at 18.
4
5 B. Plaintiff and Its Members
6 According to the Complaint, Plaintiff Log Cabin
7 Republicans ("Plaintiff") is a nonprofit corporation
8 organized under the laws of the District of Columbia, is
9 associated with the Republican Party, and is dedicated to
10 the interests of the gay and lesbian community.1
11
12 John Alexander Nicholson is a member of Plaintiff
13 organization. Mr. Nicholson enlisted in the United
14 States Army in 2001; the Army discharged him one year
15 later pursuant to the DADT Policy. (Declaration of John
16 Alexander Nicholson ("Nicholson Decl.") ¶¶ 3, 5–6.) Mr.
17 Nicholson signed up to be included in Plaintiff's
18 database in April of 2006. (Stmt. of Genuine Issues
19 ("SGI") at 6:5–20.) In 2006, Plaintiff's Georgia chapter
20 awarded Mr. Nicholson honorary membership.2 (Id.) Mr.
21
1
22 Although neither Defendants in their Motion nor
Plaintiff in its Opposition point to any evidence
23 concerning the corporate form of Plaintiff, the nature of
Plaintiff organization does not appear to be in dispute.
24 2
Although Defendants argue "the record contains no
25 evidence that the national board of directors ever
granted 'honorary membership' to Mr. Nicholson,"
26 Plaintiff has submitted evidence, in the form of the
Declaration of Jamie Ensley, that the Georgia Chapter of
27 Plaintiff organization granted Mr. Nicholson honorary
membership. (See Decl. of Jamie Ensley ("Ensley Decl.")
28 (continued...)
4

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1 Nicholson has attended several of Plaintiff's national


2 conventions, (id.), and addressed Plaintiff's national
3 convention in 2006. (SGI at 5:11–6:4.)
4
5 John Doe is also a member of Plaintiff organization.
6 (Decl. of John Doe ("Doe Decl.") ¶ 2.) He joined
7 Plaintiff at some time before October 12, 2004. (Decl.
8 of C. Martin Meekins ("Meekins Decl.") ¶ 3.) John Doe is
9 an officer in the United States Army Reserves who
10 recently completed a tour of duty in Iraq. (SGI at
11 7:5–8:10; Doe Decl. ¶ 4.) Lt. Col. Doe is gay and wishes
12 to continue his service in the United States Army. (Doe
13 Decl. ¶¶ 2, 6.) He believes that identifying himself in
14 this action would subject him to investigation and
15 discharge under the DADT Policy. (Doe Decl. ¶ 8.)
16
17 C. Procedural History
18 Plaintiff filed its Complaint on October 12, 2004.
19 On December 13, 2004, Defendants moved to dismiss the
20 Complaint, alleging, inter alia, that Plaintiff lacked
21 standing. The Honorable George P. Schiavelli granted the
22 motion to dismiss the Complaint with leave to amend on
23 March 21, 2006.
24
25
26
27 2
(...continued)
28 ¶ 4.)
5

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1 On April 28, 2006, Plaintiff filed timely its Amended


2 Complaint, attaching the declaration of Mr. Nicholson.
3 According to the Amended Complaint, the DADT Policy
4 violates the First and Fifth Amendments to the U.S.
5 Constitution by violating guarantees to: (1) substantive
6 due process; (2) equal protection; and (3) freedom of
7 speech. On June 11, 2007, Plaintiff filed the
8 declaration of Lt. Col. Doe, a current member of
9 Plaintiff organization, a homosexual, and a current U.S.
10 Army reservist on active duty.
11
12 On June 12, 2006, Defendants moved to dismiss the
13 Amended Complaint. On May 23, 2008, Judge Schiavelli
14 entered an order staying this action in light of the
15 Ninth Circuit's May 21, 2008 decision in Witt v. Dep't of
16 the Air Force, 527 F.3d 806 (9th Cir. 2008). After the
17 case was transferred to this Court in late 2008, the
18 Court heard the motion to dismiss, and denied it on June
19 9, 2009. On November 24, 2009, the Court denied a motion
20 by Defendants to certify its June 9, 2009 Order for
21 interlocutory appeal.
22
23 On March 29, 2010, Defendants filed this Motion for
24 Summary Judgment. Plaintiff's Opposition and Defendants'
25 Reply were filed timely. On April 21, 2010, the Court
26 provided the parties with its tentative ruling relating
27 to standing. On April 22, 2010, Plaintiff filed a
28
6

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1 supplemental memorandum of points and authorities in


2 support of its Opposition, and on April 23, 2010,
3 Defendants filed a response to Plaintiff's supplemental
4 brief. On April 26, 2010, Plaintiff submitted the
5 Meekins Declaration in support of its Opposition. The
6 Court held a hearing on the Motion on April 26, 2010, and
7 granted the parties leave to submit further supplemental
8 briefing concerning standing; both sides timely filed
9 additional briefs on May 3, 2010.
10
11 D. Evidentiary Objections
12 The only evidentiary objection the Court need address
13 in order to resolve the threshold issue of standing is
14 Defendants’ challenge to consideration of the Meekins
15 declaration.
16
17 Defendants argue that the Court should strike the
18 Meekins Declaration because Plaintiff failed to disclose
19 Mr. Meekins as a witness during discovery. Defendants
20 are correct that where a party fails to disclose the
21 identity of a witness required by either Rule 26(a) or
22 otherwise requested during discovery without substantial
23 justification, the party may not later rely on evidence
24 from that witness. See Wong v. Regents of Univ. of Cal.,
25 410 F.3d 1052, 1062 (9th Cir. 2005); Fed. R. Civ. P.
26 37(c)(1).
27
28
7

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1 Defendants' challenge to the declaration fails for


2 two reasons, however. First, Rule 26(a) only requires a
3 party to disclose the identity of persons "the disclosing
4 party may use to support its claims or defenses." Fed.
5 R. Civ. P. 26(a)(1)(A)(i). The Meekins Declaration is
6 offered solely to rebut Defendants' challenge to
7 Plaintiff's standing to bring this lawsuit, by
8 establishing Lt. Col. Doe's membership in Plaintiff
9 organization at the time the action commenced. Mr.
10 Meekins does not offer any testimony relating to the
11 merits of Plaintiff's claims for relief. Accordingly,
12 disclosure of Mr. Meekins' identity was not required by
13 Rule 26(a). Defendants have pointed to no written
14 discovery request they propounded upon Plaintiff that
15 would have called for identification of Mr. Meekins.
16 Plaintiff thus was not obligated to disclose Mr. Meekins'
17 identity during discovery.
18
19 Furthermore, assuming disclosure was required either
20 by Rule 26(a) or an as-yet unidentified discovery
21 request, substantial justification exists for Plaintiff's
22 failure to disclose Mr. Meekins' identity during
23 discovery. Defendants have known that Plaintiff sought
24 to use Lt. Col. Doe's membership as the basis of its
25 claim to standing for almost three years, yet never
26 challenged the timing of his membership in Plaintiff
27
28
8

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1 organization.3 The ambiguity that caused the Court to


2 question when Lt. Col. Doe became a member of Plaintiff
3 organization appears clearly on the face of the Doe
4 Declaration, which has been in Defendants' possession
5 since June 11, 2007. Based on Defendants' silence in the
6 face of the Doe Declaration, Plaintiff reasonably may
7 have believed that the timing of Lt. Col. Doe's
8 membership was not in dispute. Plaintiff thus would have
9 had no reason to seek out additional evidence of the date
10 on which Lt. Col. Doe joined Plaintiff organization, let
11 alone disclose such evidence.
12
13 For the foregoing reasons, the Court DENIES
14 Defendants' request to strike the Meekins Declaration.
15
16 II. LEGAL STANDARD
17 A motion for summary judgment shall be granted when
18 there is no genuine issue as to any material fact and the
19 moving party is entitled to judgment as a matter of law.
20 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
21 477 U.S. 242, 247-48 (1986). The moving party must show
22 that "under the governing law, there can be but one
23 reasonable conclusion as to the verdict." Anderson, 477
24 U.S. at 250.
25
26 3
Defendants did not raise this issue in their Motion;
27 it was raised by the Court sua sponte in its tentative
ruling distributed to the parties before the April 26,
28 2010 hearing.
9

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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 A defendant has the burden of proof at trial with respect


2 to any affirmative defense. Payan v. Aramark Mgmt.
3 Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).
4
5 A genuine issue of material fact will exist "if the
6 evidence is such that a reasonable jury could return a
7 verdict for the non-moving party." Anderson, 477 U.S. at
8 248. In ruling on a motion for summary judgment, the
9 Court construes the evidence in the light most favorable
10 to the non-moving party. Barlow v. Ground, 943 F.2d
11 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v.
12 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31
13 (9th Cir. 1987).
14
15 III. DISCUSSION
16 A. Standing
17 Defendants argue they are entitled to summary
18 judgment because Plaintiff lacks standing to bring this
19 action.
20
21 "To satisfy Article III's standing requirement,
22 [plaintiffs] must demonstrate: (1) they suffered or will
23 suffer an 'injury in fact' that is concrete,
24 particularized, and actual or imminent; (2) the injury is
25 fairly traceable to [defendant's] challenged action; and
26 (3) the injury is likely, not merely speculative, and
27 will be redressed by a favorable decision." Biodiversity
28
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1 Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir.


2 2002); see also Lujan v. Defenders of Wildlife, 504 U.S.
3 555, 560–61 (1992). Plaintiff, as the party invoking
4 federal jurisdiction, bears the burden of establishing
5 its standing. See Lujan, 504 U.S. at 561; Chandler v.
6 State Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
7 2010).
8
9 An association has standing to sue on behalf of its
10 members when "(a) its members would otherwise have
11 standing to sue in their own right; (b) the interests it
12 seeks to protect are germane to the organization's
13 purpose; and (c) neither the claim asserted nor the
14 relief requested requires the participation of individual
15 members in the lawsuit." Hunt v. Wash. State Apple
16 Adver. Comm'n, 432 U.S. 333, 343 (1977).
17
18 Plaintiff has identified two of its members who, it
19 argues, have standing to sue in their own right and thus
20 confer standing on it: John Doe and John Alexander
21 Nicholson. Defendants do not dispute the second and
22 third prongs of Hunt's associational standing elements as
23 to Lt. Col. Doe and Mr. Nicholson, nor do they dispute
24 that Mr. Nicholson has standing to sue in his own right.
25 Defendants argue, instead, that Lt. Col. Doe and Mr.
26 Nicholson are not bona fide members of Plaintiff.
27 Defendants further argue that Lt. Col. Doe lacks standing
28
12

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1 to sue in his own right because he has not yet been


2 discharged from the military, and thus any harm to him
3 from the DADT Policy is speculative. Defendants also
4 argue that even if Lt. Col. Doe and Mr. Nicholson were
5 bona fide members with standing to sue in their own
6 right, they were not members at the time this action
7 commenced, and the Court therefore lacks subject matter
8 jurisdiction. Finally, Defendants argue that Plaintiff
9 cannot proceed without disclosing Lt. Col. Doe's
10 identity.
11
12 At the threshold, the Court must determine the date
13 on which Plaintiff's standing should be evaluated.
14 Defendants argue the Court should examine Plaintiff's
15 standing as of the date the action was initiated, i.e.,
16 the date the original Complaint was filed — October 12,
17 2004. Plaintiff, on the other hand, contends the Court
18 should inquire whether standing existed as of the date
19 the First Amended Complaint was filed, April 28, 2006.
20
21 As a general matter, "[s]tanding is determined at the
22 time of the lawsuit's commencement, and [the Court] must
23 consider the facts as they existed at that time the
24 complaint was filed." Skaff v. Meridien N. Am. Beverly
25 Hills, LLC, 506 F.3d 832, 850 (9th Cir. 2007) (citing
26 Lujan, 504 U.S. at 569 n. 4); see also Friends of the
27 Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180
28
13

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1 (2000) ("[W]e have an obligation to assure ourselves that


2 [plaintiff] had Article III standing at the outset of the
3 litigation.").
4
5 Plaintiff urges that this case falls within an
6 exception to the general rule. In his March 21, 2006
7 Order, Judge Schiavelli dismissed Plaintiff's original
8 Complaint and granted Plaintiff leave to file a First
9 Amended Complaint. Relying on Loux v. Rhay, 375 F.2d 55,
10 57 (9th Cir. 1967), Plaintiff argues that "[t]he
11 dismissal of Log Cabin's original complaint and the
12 filing of the first amended complaint rendered the
13 original complaint of no legal effect and obsolete."
14 (Pl.'s Apr. 22, 2010 Mem. of P. & A. at 1:19–20.) In
15 support of this argument, Plaintiff cites County of
16 Riverside v. McLaughlin, 500 U.S. 44 (1991). (Id. at
17 2:14–3:2.)
18
19 In McLaughlin, the class members claimed that the
20 County of Riverside had violated their Constitutional
21 rights when it failed to provide persons subject to
22 warrantless arrest with timely probable cause
23 determinations. McLauglin, 500 U.S. at 47. The original
24 complaint in McLaughlin, filed in August 1987, named a
25 single plaintiff. Id. at 48. The second amended
26 complaint, filed in July 1988, named three additional
27 plaintiffs. Id. at 48–49. In response to the
28
14

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1 defendants' argument challenging the standing of the


2 named plaintiffs, the Court examined the facts relating
3 to standing as set forth in the second amended complaint,
4 not the original complaint. Id. at 50–52.
5
6 Defendants attempt to avoid the effect of McLaughlin
7 by arguing that the Supreme Court analyzed standing as of
8 the date the second amended complaint was filed because
9 new named plaintiffs were added in the second amended
10 complaint, and the claims of these new plaintiffs were
11 not included in the case before that date. This is
12 unpersuasive, however. The procedural posture of this
13 case closely resembles that before the Court in
14 McLaughlin. Just as a class must identify a named
15 plaintiff with standing, so too must an association
16 seeking to assert claims of its members identify an
17 individual member with standing. Although it is true
18 that there has been but one named plaintiff here for the
19 duration of the action, an association that newly
20 identifies a member for standing purposes is analogous to
21 a class that newly identifies a class member with
22 standing. Accordingly, the analysis of McLaughlin
23 applies here, and the critical date for standing is the
24 date the First Amended Complaint was filed — April 28,
25 2006.
26
27
28
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1 Turning to the specific standing arguments raised by


2 the parties with respect to Lt. Col. Doe and Mr.
3 Nicholson, the Court finds each of these challenges, too,
4 lacks merit.
5
6 1. John Doe
7 Defendants raise three principal objections to
8 Plaintiff's use of Lt. Col. Doe to confer standing: (1)
9 he does not have standing to sue in his own right; (2) he
10 was not a member of Plaintiff at the time the original
11 Complaint was filed; and (3) Plaintiff may not rely on
12 John Doe for standing without identifying him by name.
13 The Court addresses each argument in turn.
14
15 a. Imminence of Harm
16 Defendants contend that because Lt. Col. Doe has not
17 been discharged from the military yet, any harm to him is
18 too speculative to constitute the actual or imminent harm
19 required for standing. (Mot. at 11:8–12:17.)
20
21 The Supreme Court has rejected the argument that a
22 plaintiff lacks standing to challenge the
23 constitutionality of a statute merely because the statute
24 has not been enforced against him yet. Instead, the
25 Court has long held that so long as there is a reasonable
26 threat of enforcement, "it is not necessary that
27 petitioner first expose himself to actual arrest or
28
16

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1 prosecution to be entitled to challenge a statute that he


2 claims deters the exercise of his constitutional rights."
3 Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also,
4 e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
5 128–29 (2007) ("[W]here threatened action by government
6 is concerned, we do not require a plaintiff to expose
7 himself to liability before bringing suit to challenge
8 the basis for the threat — for example the
9 constitutionality of a law threatened to be enforced.");
10 Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc.,
11 477 U.S. 619, 626 n. 1 (1986).
12
13 Here, the DADT Policy on its face shows that there is
14 a reasonable threat that it will be enforced against Lt.
15 Col. Doe if the military learns his identity. The
16 language of the DADT Policy is mandatory, see 10 U.S.C. §
17 654(b)(2) ("A member of the armed forces shall be
18 separated from the armed forces . . . if . . . the member
19 has stated that he or she is a homosexual . . . .")
20 (emphasis added), and does not leave the armed forces any
21 discretion about enforcing the policy where a
22 servicemember is unable to rebut a finding that he or she
23 is "a person who engages in, attempts to engage in, has a
24 propensity to engage in, or intends to engage in
25 homosexual acts." Id. Lt. Col. Doe has stated that he
26 is homosexual (see Doe Decl. ¶ 2); the mandatory nature
27 of the DADT Policy requires it be applied to him if he is
28
17

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1 identified. Furthermore, Defendants do not dispute that


2 many service members have been discharged previously
3 under the DADT Policy, or that the DADT Policy will
4 continue to be applied to persons who admit to being
5 homosexuals.
6
7 Indeed, Defendants have not argued that it is even
8 within their discretion to decline to initiate separation
9 proceedings against Lt. Col. Doe if he were identified.
10 In fact, they are unwilling to stipulate not to initiate
11 such proceedings against him were his identity revealed
12 for purposes of this litigation. Defendants have offered
13 no evidence suggesting that the DADT Policy will not be
14 enforced against Lt. Col. Doe.
15
16 Defendants' legal authorities do not establish that
17 no imminent threat of harm to Lt. Col. Doe exists. In
18 support of their argument, Defendants rely on City of Los
19 Angeles v. Lyons, 461 U.S. 95 (1983), Nat'l Treasury
20 Employees Union v. Dep't of the Treasury, 25 F.3d 237
21 (5th Cir. 1994), and Hodgers-Durgin v. de la Viña, 199
22 F.3d 1037 (9th Cir. 1999).
23
24 Lyons is easily distinguishable from the facts here.
25 In Lyons, the Supreme Court held that a plaintiff did not
26 have standing to obtain injunctive relief preventing the
27 Los Angeles Police Department from enforcing an unwritten
28
18

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1 policy that officers employ choke holds to restrain


2 suspects who pose no threat of deadly force to officers.
3 Lyons, 461 U.S. at 98, 111–13. In Lyons, there was
4 substantial uncertainty as to whether or not the
5 plaintiff would engage in future activity sufficient to
6 arouse the suspicions of police officers and if he did,
7 whether or not the police officers would enforce the
8 unwritten alleged choke hold policy. See id. at 105–06.
9 The Court recognized there was nothing about the
10 plaintiff that made it more likely the policy would be
11 applied to him than any other individual. See id. at 111
12 ("[Plaintiff] is no more entitled to an injunction than
13 any other citizen of Los Angeles.")
14
15
16 Here, by contrast, the DADT Policy is non-
17 discretionary and based on a single criterion which Lt.
18 Col. Doe meets. There is no reason to doubt it will be
19 applied to him. His testimony that he is gay certainly
20 suffices to raise a triable issue of material fact as to
21 imminent harm. (See Doe Decl. ¶ 2.)
22
23 National Treasury similarly fails to support
24 Defendants' position. There, the Fifth Circuit found the
25 plaintiff organization lacked standing because the
26 plaintiff had "not even alleged that there is a threat of
27 such an injury to any individual member of the
28
19

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1 association," Nat'l Treasury, 25 F.3d at 242, not because


2 the policy it challenged had not been enforced against
3 any of its members. Here, Plaintiff has identified Lt.
4 Col. Doe as a member to whom a threat exists.
5
6 Finally, Hodgers-Durgin does not support Defendants'
7 position. The named plaintiffs in Hodgers-Durgin sought
8 to enjoin an alleged Border Patrol practice of stopping
9 motorists in violation of the Fourth Amendment. Although
10 Defendants maintain that the Ninth Circuit found the
11 named plaintiffs lacked standing, the Ninth Circuit's
12 holding actually was two-fold: (1) the named plaintiffs
13 sufficiently alleged a "case or controversy" for
14 purposes of Article III standing, but (2) failed to show
15 a likelihood of substantial and immediate irreparable
16 injury for the purposes of obtaining a preliminary
17 injunction. See Hodgers-Durgin, 199 F.3d at 1041–44.
18 The standard for obtaining injunctive relief, of course,
19 is different from the standard for establishing standing,
20 as evidenced by the Ninth Circuit's decision.
21
22 b. When John Doe Became A Member of Plaintiff
23 John Doe began paying membership dues to Plaintiff
24 before the filing of the Original Complaint in 2004.
25 (Meekins Decl. ¶ 4.) Although he apparently took
26 measures to protect against disclosure of his identity —
27 including paying his membership dues through a member of
28
20

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1 Plaintiff's national board rather than directly to the


2 organization, (see id.) — he appears to have become a
3 dues-paying member before the Original Complaint was
4 filed.
5
6 Summary judgment is inappropriate here whether the
7 Court applies April 28, 2006 or October 12, 2004 as the
8 appropriate date for its standing analysis. As discussed
9 above, Plaintiff here must demonstrate it had standing to
10 bring suit as of April 28, 2006, the date the First
11 Amended Complaint was filed. Lt. Col. Doe was
12 indisputably a member of Plaintiff before that date.
13 Even assuming arguendo that Defendants are correct in
14 their assertion that Plaintiff must establish it had
15 standing as of the date the original complaint was filed,
16 however, there is at a minimum a genuine issue of fact as
17 to whether or not Lt. Col. Doe was a member of Plaintiff
18 association on that date. (See id. ¶¶ 3–4.) This
19 genuine issue of fact precludes summary judgment on this
20 basis.4
21
22
23
24
25
4
26 Defendants further appear to argue that Lt. Col. Doe
was not a bona fide member of Plaintiff organization at
27 any time. (See Mot. at 11:6–8.) As discussed above,
however, it is clear that Lt. Col. Doe was a dues-paying
28 member of Plaintiff organization.
21

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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 In 2006, Plaintiff's Georgia chapter made Mr.


2 Nicholson an honorary member. (Ensley Decl. ¶ 4.)
3 Though Plaintiff does not specify the date in 2006 on
4 which Mr. Nicholson became an honorary member, the
5 parties agree that he signed up to be included in
6 Plaintiff's database in April 2006, (Stmt. of Undisputed
7 Facts ("SUF") ¶ 10; SGI ¶ 10), and Plaintiff's records
8 indicate that Mr. Nicholson has been a member since April
9 28, 2006. (See Decl. of Terry Hamilton ("Hamilton
10 Decl.") ¶¶ 3–5, Ex. A.) Construing these facts in the
11 light most favorable to Plaintiff, the non-moving party,
12 it appears that Mr. Nicholson was an honorary member at
13 the time the First Amended Complaint was filed, the
14 applicable measuring date here.
15
16 Defendants argue that Mr. Nicholson's honorary
17 membership is a nullity because the provision of
18 Plaintiff's bylaws authorizing awards of honorary
19 membership conflict with Plaintiff's articles of
20 incorporation — which provide for a single class of dues-
21 paying members — and thus Plaintiff has no ability to
22 award honorary memberships. Plaintiff maintains that Mr.
23 Nicholson's honorary membership is valid, and even if it
24 were not, sufficient indicia of Mr. Nicholson's
25 membership exist to provide for standing here.
26
27
28
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1 Defendants respond that the line of authority


2 permitting associational standing where sufficient
3 indicia of membership exist is unavailable to Plaintiff,
4 a traditional membership organization, and that in any
5 case, the indicia of Mr. Nicholson's membership are
6 insufficient to confer standing. As the Court finds
7 Defendants have not met their burden of showing that
8 Plaintiff's grant of honorary membership to Mr. Nicholson
9 was invalid, the Court does not reach the question of
10 whether Plaintiff may alternatively obtain standing based
11 on Mr. Nicholson's indicia of membership.
12
13 Defendants' argument that Mr. Nicholson's honorary
14 membership is insufficient to confer standing on
15 Plaintiff fails for two reasons. First, although as a
16 general principle of corporate law5 bylaws that conflict
17 with mandatory provisions of a corporation's articles of
18 incorporation are ultra vires and void, see, e.g.,
19 Paolino v. Mace Sec. Int'l, Inc., 985 A.2d 392, 403 (Del.
20 Ch. 2009), Defendants have not shown that the bylaw at
21 issue actually conflicts with Plaintiff's articles of
22 incorporation. In relevant part, Plaintiff's articles of
23 incorporation provide that "[m]embers of the corporation
24
25 5
Defendants have directed the Court to no authority
26 specifically applying the District of Columbia Nonprofit
Corporation Act, and the Court has found none; Defendants
27 rely solely on Nev. Classified Sch. Employees Ass'n v.
Quaglia, 177 P.3d 509 (Nev. 2008), which appears to have
28 applied Nevada corporate law.
24

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1 shall be individuals who support the purposes of the


2 corporation and make a financial contribution to the
3 corporation each calendar year," and that "[t]he
4 corporation shall have one membership class." (Reply
5 App. of Evid. Ex. 8 at 2.) It does not, however, contain
6 any provision prohibiting Plaintiff's Board of Directors
7 from using their authority to create additional classes
8 and criteria of membership.
9
10 Furthermore, the law of the District of Columbia does
11 not require the harsh result Defendants advocate. The
12 District of Columbia Nonprofit Corporation Act (the
13 "Corporation Act") provides that a nonprofit corporation
14 shall designate its membership class or classes and
15 accompanying qualifications "in the articles of
16 incorporation or the bylaws." D.C. Code § 29-301.12
17 (emphasis added). The Corporation Act further provides
18 that articles of incorporation shall contain "any
19 provision which the incorporators elect to set forth . .
20 . designating the class or classes of members, stating
21 the qualifications and rights of the members of each
22 class and conferring, limiting, or denying the right to
23 vote." D.C. Code § 29-301.30(a)(5) (emphasis added).
24 Viewed together, these provisions offer flexibility and
25 broad discretion to incorporators as to where they choose
26 to describe membership classes and qualifications. The
27 ability to describe one class of members in the articles
28
25

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1 of incorporation and another in the bylaws falls within


2 this broad discretion.
3
4 B. Standard of Review
5 As indicated during the hearing on April 26, 2010,
6 the Court is inclined apply the standard of review set
7 forth in Witt v. Dep't of the Air Force, 527 F.3d 806,
8 819 (9th Cir. 2008) — i.e., that "when the government
9 attempts to intrude upon the personal and private lives
10 of homosexuals, in a manner that implicates the rights
11 identified in Lawrence, the government must advance an
12 important government interest, the intrusion must
13 significantly further that interest, and the intrusion
14 must be necessary to further that interest" — when
15 considering Defendants' challenge to Plaintiff's
16 substantive due process claim. Neither side addressed
17 whether or not the DADT Policy survives the Witt standard
18 in their papers in support of and opposition to the
19 Motion. The Court thus grants both sides leave to submit
20 further briefing addressing application of the Witt
21 standard of review to the DADT Policy.
22
23 IV. CONCLUSION
24 For the reasons set forth above, the Court DENIES
25 Defendants' Motion to the extent it is based on a lack of
26 standing. The Court grants the parties leave to file
27 supplemental briefs for the sole purpose of discussing
28
26

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1 application of the Witt standard to Plaintiff's


2 substantive due process claim. Defendant may file its
3 supplemental memorandum of points and authorities, along
4 with any further supporting evidence, no later than June
5 9, 2010. Plaintiff may file its response no later than
6 June 23, 2010. Neither side's supplemental memoranda
7 shall exceed fifteen pages, exclusive of tables of
8 contents and authorities.
9
10
11
12 Dated: May 27, 2010
13 VIRGINIA A. PHILLIPS
14 United States District Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27

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1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3 EASTERN DIVISION

4 - - -

5 HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

6 - - -

7 LOG CABIN REPUBLICANS, )


)
8 Plaintiff, )
)
9 vs. ) No. CV 04-8425-VAP(Ex)
)
10 UNITED STATES OF AMERICA, et al., )
) Pre-Trial Conference
11 Defendants. )
___________________________________)
12

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

23 THERESA A. LANZA, RPR, CSR


Federal Official Court Reporter
24 3470 12th Street, Rm. 134
Riverside, California 92501
25 (951) 274-0844
WWW.THERESALANZA.COM

Monday, June 28, 2010 CV 04-8425-VAP


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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

24

25

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1 I N D E X

2 Page

3 Proceedings........................................ 4

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11

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13

14

15

16

17

18

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21

22

23

24

25

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1 Riverside, California; Monday, June 28, 2010; 3:27 P.M.

2 -oOo-

3 THE CLERK: Calling Calendar Item Number 14,

4 Case Number CV 04-8425-VAP(ex), Log Cabin Republicans versus

5 United States of America, et al. 03:27

6 Counsel, please state your appearances.

7 MR. FREEBORNE: Paul Freeborne on behalf of the

8 United States and Secretary Gates, Your Honor. With me are my

9 colleagues, Josh Gardner, Scott Simpson, Ryan Parker, and

10 Major Patrick Grant. 03:27

11 THE COURT: Good afternoon.

12 MR. WOODS: Dan Woods from White & Case for

13 plaintiff, Log Cabin Republicans. With me are my colleagues,

14 Earle Miller and Aaron Kahn.

15 THE COURT: This matter is on the Court's calendar 03:27

16 for a pretrial conference.

17 And this matter is set to begin trial on July 13th?

18 MR. WOODS: Yes, Your Honor.

19 THE COURT: And we'll start trial that day, in the

20 absence of the unforeseen happening in the meantime. But as 03:28

21 far as I'm concerned, we'll start trial that day.

22 As I recall, there were some issues with counsel

23 about -- and perhaps witnesses, but as I recall, it was mostly

24 counsel -- about trial scheduling. So if we're not able to

25 complete testimony in the four days of that week -- as I 03:28

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1 recall, one side or the other, or maybe both, had some

2 scheduling problems the following week. Otherwise, I could

3 continue the following week.

4 Am I recalling correctly?

5 MR. FREEBORNE: You are, Your Honor. It was my 03:29

6 scheduling conflict. I was scheduled to take a mission trip

7 with my son. I have arranged for a backup in the event that we

8 go long, if we go longer than four days; so that's been taken

9 care of.

10 The following week, though, is a family vacation that 03:29

11 cannot be arranged around.

12 THE COURT: So you're available for two weeks?

13 MR. FREEBORNE: Yes. With the note that I have a

14 backup plan in place.

15 THE COURT: Because what we could do is pick up -- we 03:29

16 could go for four days, since it's a nonjury trial, and then

17 pick another week if we're not able to finish in four days.

18 MR. FREEBORNE: Your Honor, we note that we've asked

19 for a bifurcation on the standing and then the merits. But I

20 think it might be more efficient for everyone just to push 03:29

21 through, if we are going to go the full length.

22 THE COURT: I think that it wouldn't be a problem

23 finishing in two weeks. And, certainly, one way or the other,

24 you should plan to go on that vacation.

25 All right. Let's take up the motions in limine. 03:30

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1 I agree with the defense that the government's

2 motions in limine violate my standing order in a couple of

3 respects, although I've read them and I will consider them on

4 the merits.

5 My standing order limits the motions in limine not 03:30

6 only in number, but in subject matter.

7 Also, with perhaps one exception, the motions

8 in limine for this court trial appear to me to be largely

9 unnecessary in a court trial. They're not always unnecessary,

10 but most of what's covered in these motions in limine appear to 03:31

11 me to be unnecessary.

12 Although, to a certain extent, even if they weren't

13 called motions in limine, in some part they raise some issues

14 that we probably ought to take care of in advance of trial.

15 The motion that seems the least necessary is the 03:31

16 motion with respect to the exhibits. And I think for the sake

17 of expedition and in the interest of recycling the paper -- not

18 recycling it for another use, but recycling it for the

19 exhibits, because we'll be using them, of course, at trial to a

20 certain extent -- I'll take up, first, the motion to exclude 03:31

21 the use of the exhibits.

22 What's supposed to happen is -- the way I usually

23 proceed, as to the exhibits, would be to go through a joint

24 exhibit list, and as to what ideally would be a very short

25 number of disputed exhibits, talk about those with counsel at 03:32

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1 the pretrial conference.

2 There should not be -- and I don't even really think

3 there would be in this case, although I can't really tell for

4 sure -- a very limited -- I can't even believe there would be

5 any documents -- 03:32

6 Is there a joint exhibit list that has been prepared

7 here? Did you file one?

8 MR. FREEBORNE: Your Honor, we have, as you know, a

9 broad-based challenge to the use of the facts or evidence in

10 this case. That's one of the subjects of our motion in limine. 03:33

11 THE COURT: Well, that's common to all three of the

12 motions in limine.

13 MR. FREEBORNE: It is. But I just mention that in

14 that our understanding of the joint exhibit list is obviously

15 to agree upon admissibility. We don't believe that facts or 03:33

16 evidence outside of the legislative history of the statute are

17 at all relevant in this case.

18 We have offered to the other side to introduce the

19 legislative history and agree upon what that consists of, but

20 the other side has been unwilling to do that. 03:33

21 They see a joint exhibit list as for identification

22 purposes only. We don't see that the Court benefits from that.

23 As we understand it, it's for admissibility. The Court

24 deserves to know what the parties agree should be admissible on

25 the first day of trial. 03:33

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1 THE COURT: Well, it should be both. It's both for

2 identification and admissibility. Because, especially with the

3 number of exhibits here, it would be chaos if I don't have a

4 joint exhibit list.

5 Even if you don't agree on a single exhibit as to 03:34

6 relevance, you're still required to come up with a joint

7 exhibit list and a set of notebooks for the witnesses and

8 notebooks for the Court. We should all be operating under the

9 same set of exhibits, whether or not you agree as to a single

10 one that they will be admitted. 03:34

11 There has to be a joint exhibit list.

12 MR. FREEBORNE: Very well, Your Honor. We'll work

13 with the other side.

14 THE COURT: So that's why I would return to the

15 parties the notebooks that have all of the exhibits. To the 03:34

16 extent that your motion is based on an overarching objection

17 that there are no exhibits other than the legislative history,

18 that objection is overruled. But as a practical matter, there

19 must be a joint set of exhibits. That doesn't mean that you're

20 stipulating to their admission. 03:35

21 I would be extremely disappointed if there are

22 objections as to authenticity.

23 MR. FREEBORNE: Your Honor, we do. And we can walk

24 through those objections with you. We have evidentiary

25 objections. But we still have broad-based issues that need to 03:35

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1 be resolved in this case.

2 The proper nature of facial challenge. They seek to

3 introduce extrinsic evidence of subjective motivations on

4 behalf of members of Congress, which we believe is

5 inappropriate. 03:36

6 THE COURT: That's properly raised in some of your

7 other motions, and I intend to address those to a certain

8 degree. To the extent that some of the exhibits contain those,

9 the best way, it seems to me, to deal with that issue is --

10 most of those exhibits relate to the testimony of some of the 03:36

11 experts.

12 And I'm not sure I'm going to allow some of that

13 expert testimony. I mean, what comes to my mind immediately

14 when you say there's an objection to the testimony regarding

15 the subjective intent of certain members of Congress, I agree 03:36

16 with the government that for the most -- well, almost entirely,

17 I think such testimony would be objectionable.

18 And although the government didn't frame it this way,

19 at least insofar as the motions in limine were concerned, there

20 is the legislative privilege. I mean, I didn't see that in the 03:37

21 motion in limine, but that's, to me, the privilege that would

22 apply.

23 So the way I conceive it is, an expert can take the

24 witness stand and say -- I think the expert -- I really don't

25 want to jump around; I really want to keep this focus for the 03:37

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1 moment, on the motion with respect to the exhibits. But just

2 to give you an example -- maybe it was Professor Frank or --

3 MR. FREEBORNE: Professor Frank will testify about

4 the history of homosexual service, as well as the enactment of

5 "Don't Ask, Don't Tell." And his entire theory is based upon 03:38

6 an animus theory.

7 THE COURT: Maybe he's the one I had in mind.

8 Because I remember reading in some of your exhibits on the

9 experts -- I don't know if it's Exhibit 9 -- yes, it was

10 Professor Frank. Right, it was his report. That is what I'm 03:38

11 thinking of.

12 So, for example, if he's testifying on direct, like

13 any other expert, he can testify, Yes, this is what I was asked

14 to do; this is the work I did; this is my research; here are my

15 qualifications; these are the things I relied on, and so forth. 03:39

16 The materials, the research, the third-party sources

17 he consulted, et cetera, all of that is hearsay. So it doesn't

18 come in on direct because it's hearsay. He's entitled to say

19 what he relied on and to describe all of the research he did.

20 But it's hearsay. It doesn't come in on direct. 03:39

21 You can cross-examine about it. If you want to admit

22 it on direct -- you probably wouldn't -- but you can

23 cross-examine on it to your heart's -- well, not necessarily to

24 your heart's content, but you can cross-examine on it. It

25 doesn't come in. You can cross-examine on it, but it's 03:40

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1 hearsay.

2 It normally isn't even listed. It wouldn't be listed

3 on the exhibit list, because it's not going to come in. It can

4 be marked for identification on the exhibit list, but it's not

5 going to be admitted. So it might appear on the exhibit list 03:40

6 because it may be marked for identification, because you may

7 want to cross-examine on it. Either side may want to

8 cross-examine on something an expert relied upon if they think

9 it's good grounds for cross-examination.

10 So the fact that something is identified on the 03:40

11 exhibit list doesn't even mean it's going to be moved into

12 evidence, much less that it's going to be admitted.

13 But a joint exhibit list is crucial in any case,

14 especially a case with a lot of exhibits, so that we don't have

15 chaos at trial trying to keep straight what documents have been 03:41

16 identified and what documents have been admitted.

17 I didn't mean to jump ahead on the expert motion.

18 But on the exhibit motion, to the extent that it's based on a

19 broad objection to the use of any exhibits other than the

20 legislative history, that motion is denied. 03:41

21 Since I don't have a joint exhibit list and since it

22 is a nonjury trial, I'm not going to try to rule in advance

23 which ones would be admitted and which ones would not be,

24 because I think some of that rule will become clear as I go

25 through the other two motions. 03:42

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1 But, certainly, much of what the experts rely on is

2 not admitted; it just forms the basis for their opinion. So

3 that motion is denied without prejudice to making individual

4 objections to individual pieces of evidence.

5 Now let's move to the other two motions. 03:42

6 The motion in limine to exclude lay witnesses.

7 The defendants are seeking to exclude the testimony

8 of 12 lay witnesses. I think I have the breakdown correct. If

9 I misstate it, I'm sure one or both sides will correct me.

10 Eight of them are not listed either in initial 03:43

11 disclosures or interrogatory responses, nor otherwise in

12 discovery, according to the defense.

13 The second basis for the motion is that this is a

14 facial challenge; that is, this case represents a facial

15 challenge; so all evidence on the merits beyond the statute 03:43

16 itself and the legislative record should be excluded. And the

17 defense argues that this applies especially to the testimony

18 from the six former servicemembers who are to testify regarding

19 the circumstances of their discharge under the policy, "Don't

20 Ask, Don't Tell."

21 The argument is that testimony regarding the

22 application of the statute to any person is irrelevant, and,

23 finally, that the testimony of all six of them would be

24 cumulative.

25 As to the three 30(b)(6) witnesses, the government 03:44

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1 argues that some of their testimony is the personal testimony

2 of the witness rather than their testimony as an organizational

3 representative and that their personal views are irrelevant;

4 that is, their personal opinion about whether knowing that a --

5 I think some of them were asked in their depositions -- and 03:44

6 this is the testimony that the defense argues should be

7 precluded -- whether knowing that a fellow servicemember was

8 gay would affect the witness's working relationship with such

9 person or would cause him personal concerns about privacy.

10 In reading the transcript excerpts that were provided 03:44

11 in connection with these two motions, the expert witness motion

12 and the lay witness motion, it appears to me that what happened

13 at times during the depositions is that questions were asked or

14 testimony was volunteered or given in answer to a question

15 that, either in the case of a 30(b)(6) witness, went beyond the 03:45

16 designation, or, in the case of an expert witness, a question

17 was asked of someone designated as an expert witness that went

18 beyond the expert designation.

19 Sometimes I think what was cited was really out of

20 context. Sometimes it was clear to me that what was cited was 03:46

21 really out of context and that witness probably wouldn't even

22 be asked to testify to that at trial.

23 To the extent that it would be elicited, the personal

24 opinion of 30(b)(6) witnesses on a subject about whether

25 knowing a fellow servicemember was gay and how it would affect 03:46

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1 their working relationship, that's irrelevant. I agree.

2 I thought, though, from the context in which some of

3 those quotes were cited, that -- well, I'll just leave it with

4 I think that would be irrelevant.

5 So the testimony, to the extent that the motion seeks 03:46

6 to bar testimony that would seek a personal opinion from a

7 witness who is designated to speak on behalf of an

8 organization, that would be irrelevant. But, again, it's not

9 really necessary to bring a motion in limine in a court trial

10 on that, because it would probably be more efficient for me 03:47

11 just to rule.

12 Information regarding research and other

13 postenactment developments -- again, this is just 30(b)(6)

14 witnesses -- circumstances allowing -- I think the shorthand

15 term was moral waivers -- and experiences of foreign militaries 03:47

16 allowing -- I think what was called open service by gays and

17 lesbian members. The government seeks a ruling that all of

18 that is irrelevant and not admissible during the trial.

19 So taking up these issues in, more or less, that

20 order, the first one: Was the failure to identify the eight 03:47

21 lay witnesses substantially justified or harmless under

22 Rule 37(c)(1)?

23 The defendants claim that they were denied the

24 ability to depose these witnesses before trial because their

25 names were not disclosed until May 17th and the addresses and 03:48

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1 phone numbers weren't provided until June 7th. One of the

2 disputes between the parties is whether the general statement

3 in the early disclosures that persons of that general class

4 that is former servicemembers might be called to testify, the

5 government's position is that that doesn't suffice, and, of 03:48

6 course, there is a continuing duty to supplement the early

7 disclosures.

8 The plaintiff argues that it did not know it would

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

11 then, at that point, it immediately notified the government of

12 its intent to call these witnesses and made them available for

13 deposition.

14 The opposition contains a proffer of each witness's

15 testimony and points out that Rule 26 requires disclosure of 03:49

16 the witnesses with knowledge of a party's claims that are known

17 at the time of disclosure.

18 So, in part, the issue comes down to, were the claims

19 known at the time of disclosure or the Court's decision to

20 apply the Witt standard? Does that change the claims? 03:49

21 The Witt standard, of course, being that the

22 government must advance an important government set of

23 restrictions. "The policy must advance an important government

24 interest; the intrusion must significantly further that

25 interest; and the intrusion must be necessary to further that 03:50

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1 interest."

2 Is that enough to justify, in this case, the

3 disclosure of the witnesses' identities?

4 So the issue comes down to whether the plaintiff had

5 reason to believe that these witnesses' testimony was necessary 03:50

6 or relevant before the April 26th hearing, because that's when

7 I first said that I was inclined to apply the Witt standard.

8 The five factors that the Court is to consider in

9 making this decision about allowing the witnesses to testify

10 are:

11 Was the disclosure substantially justified or

12 harmless, the late disclosure?

13 The defendant knew that the plaintiff was considering

14 adducing this testimony, just in very general terms, since the

15 early disclosures and the interrogatory responses, very general 03:51

16 terms; and they only had the identities for about a month

17 before trial, June 7th, and trial begins -- well, they had the

18 identities slightly early, but only the contact information,

19 names and phone numbers, about five weeks before trial.

20 Is the surprise or prejudice curable? 03:51

21 There are still two weeks left to depose them. They

22 have been available for deposition since May 20th.

23 One fact that the plaintiff pointed out is that the

24 defense had seven lawyers present at the 30(b)(6) depositions.

25 The argument that the plaintiff is making as to this 03:52

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1 point is that, I guess, given the detailed proffer of what

2 their testimony is going to be and the relatively short

3 depositions that would be needed, the depositions could be

4 taken. There could also be some arrangements -- I mean, I

5 could order, in terms of the schedule of the order of proof, 03:52

6 that they could testify later in the trial, rather than at the

7 beginning, to give the government more time to schedule their

8 depositions.

9 So I'm inclined to deny the motion as to those

10 witnesses and allow their depositions to be taken. 03:52

11 It doesn't seem to me that the depositions would be

12 more than a couple of hours, two or three hours, so I think

13 it's workable.

14 There are three witnesses, Craig Engle, Jamie Ensley,

15 and Martin Meekins, who submitted declarations in connection 03:53

16 with the summary judgment motion issue on standing.

17 It appears that there may no longer be an issue with

18 respect to Mr. Meekins.

19 Has that been worked out?

20 MR. FREEBORNE: Your Honor, the Court has not ruled 03:53

21 upon our request to depose Mr. Meekins.

22 MR. WOODS: The issue was worked out, Your Honor,

23 with respect to Mr. Engle. Because we've agreed that the

24 document that he had authenticated in the declaration would be

25 admissible without objection, we would not need to call him as 03:53

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1 a witness.

2 THE COURT: Oh. In the motion papers, as to this

3 motion, I think the parties referred to this being worked out

4 as to Mr. Meekins.

5 MR. SIMPSON: No, Your Honor. I believe our motion 03:53

6 said, particularly the reply -- I could refer to the Court to

7 the footnote where this was covered -- it was worked out as to

8 Mr. Engle, not Mr. Meekins.

9 THE COURT: Not Mr. Meekins.

10 MR. WOODS: The government and we agree on this, 03:54

11 Your Honor, of all things.

12 THE COURT: All right. Then I have that name wrong.

13 I'm sorry.

14 So there's no issue as to Mr. Engle.

15 MR. WOODS: Right. 03:54

16 And, Your Honor, our view was that you had already

17 ruled about Mr. Meekins at our last hearing. And that's part

18 of your order about standing. Because that was one of the

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.

23 MR. FREEBORNE: Your Honor ruled on our motion to

24 strike; never ruled on the request to depose Mr. Meekins.

25 THE COURT: I thought I said that -- I'm sorry. I'll 03:55

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1 look back at the order again.

2 I thought during the hearing that I resolved it by

3 saying I would not allow that deposition to be taken.

4 MR. FREEBORNE: A broader issue is whether you have

5 ruled on standing and whether there are triable issues. I 03:55

6 think both of us believe that you have ruled that there are

7 triable issues.

8 THE COURT: On standing. I issued an order on

9 standing.

10 MR. FREEBORNE: Right. But it's susceptible to a 03:55

11 variety of interpretations. It's unclear whether you have

12 definitively ruled on standing or if you have found triable

13 issues.

14 THE COURT: Well, I guess the answer to that is, I

15 think there is standing. If you wish to continue to challenge 03:55

16 it by challenging the witnesses on standing, I would allow you

17 to do so, to cross-examine. But I think that's a very weak

18 issue.

19 I can't say -- I mean, the motion that was brought

20 was your motion, and you raised standing -- actually, I don't 03:56

21 even think you raised standing; I think the Court raised it

22 sua sponte. I can't remember now.

23 MR. FREEBORNE: That's not correct, Your Honor.

24 THE COURT: No. I'm sorry. You did raise it, but

25 you didn't raise it on the grounds that I raised it. 03:56

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1 MR. FREEBORNE: That's also incorrect.

2 Our statement of uncontroverted facts said that --

3 and that came in today -- they have not said when John Doe paid

4 his dues to become a member of Log Cabin Republicans.

5 And even if you look at the proposed findings of 03:56

6 fact, they still refuse to say that. And they refuse to come

7 forward with logs, which would seem to be a very simple

8 exercise to substantiate Lieutenant Colonel Doe's standing in

9 this case.

10 THE COURT: And you said I was incorrect. 03:57

11 I think that the accurate history is that, on that

12 motion for summary judgment, what the defense did not raise and

13 the Court raised sua sponte by sending out a tentative ruling

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

17 on, on the standing issue. The Court raised it.

18 MR. FREEBORNE: Your Honor, with all due respect,

19 that's just not the case. But I don't know if we have to use

20 up time now. We cited Biodiversity. We said that they haven't 03:58

21 established that the time of membership --

22 THE COURT: You don't recall getting the tentative

23 ruling that raised this?

24 MR. FREEBORNE: It certainly raised it, but what we

25 would say is that we raised it in our papers squarely. 03:58

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1 THE COURT: But not on the timing issue.

2 MR. FREEBORNE: We did on the timing issue. We cited

3 Biodiversity, and we made the very argument as it relates to

4 John Doe and Mr. Nicholson.

5 One point of confusion, as I pointed out in the 03:58

6 summary judgment hearing, was that Judge Schiavelli, when he

7 had this case, required them to identify a member by name; they

8 could only proceed by a named member. So that did interject

9 some confusion.

10 But, Your Honor, we did raise the issue as it related 03:59

11 to Mr. Doe as well.

12 THE COURT: All right.

13 But the problem that I saw was that there wasn't a

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

16 in opposition to the motion.

17 MR. FREEBORNE: And we raised that issue. I don't

18 know if we --

19 THE COURT: No. Obviously, you're very intent on

20 being correct on this. It's more important to move on. 03:59

21 All right.

22 So I would deny the motion insofar as the lay

23 witnesses are concerned.

24 I'm not persuaded by the arguments raised by the

25 defense, and certainly not by the argument that their testimony 04:00

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1 would be cumulative.

2 The last of the lay witnesses, the proffer as to

3 that, at least in the order in which the proffers were

4 described in the motion, that's the only one whose testimony

5 might be cumulative. 04:00

6 Otherwise, I don't find the argument that their

7 testimony would be cumulative to be persuasive.

8 And balancing those five factors that I identified

9 under the case law, I don't find that under Rule 37(c)(1) that

10 their testimony should be excluded. 04:01

11 MR. SIMPSON: Your Honor, could I just stick my neck

12 out just for a moment here?

13 THE COURT: I'm going to let both sides argue.

14 MR. SIMPSON: Okay.

15 THE COURT: I just want to make sure I covered all of 04:01

16 the issues on the lay witnesses and finish by saying, as I've

17 already stated on the record, just for purposes of keeping

18 everyone focused on the issue as to the Witt standard. As to

19 the overarching objection about the irrelevance of all of this

20 evidence, it seems to me that the plaintiff's evidence as to 04:02

21 the lay witnesses would be relevant if it goes to, for

22 example -- and this is not the only thing that the plaintiff is

23 proffering it for -- but if it goes to the question of what

24 evidence the legislative branch may have ignored during the

25 legislative process, such as the Crittenden report, for 04:02

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1 example.

2 So as to the six witnesses who would testify -- well,

3 I think it's only five of those six -- as to the lay witnesses

4 who would testify regarding the circumstances of their

5 discharge, to show that the policy doesn't further its stated 04:02

6 purposes, isn't there some relevance to this testimony as to

7 that issue?

8 In other words, it seems that the government is

9 trying to have it both ways. The plaintiff has to prove, as

10 the government states, that the policy does not further or 04:03

11 advance any legitimate or important governmental objective.

12 That's what the government keeps focusing on, that it's a

13 facial challenge. So the plaintiff has to prove that it

14 doesn't further or advance any legitimate or important

15 governmental objective. Yet, by this motion, all three of 04:03

16 these motions, the defendants are attempting, really, to

17 prevent the plaintiff from putting in any evidence that goes to

18 this element of its case.

19 So with that, do you wish to be heard?

20 MR. SIMPSON: Yes. Thank you, Your Honor. 04:03

21 Those non-30(b)(6) witnesses is what, from my

22 understanding, we're addressing now. And I assume I should

23 address the failure to disclose as well, before going into the

24 cumulativeness of the witnesses.

25 THE COURT: Whichever order you prefer. 04:04

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1 MR. SIMPSON: Thank you, Your Honor.

2 I won't repeat what was said in the papers. The

3 Court is obviously very familiar with that. But if I could

4 just submit, Your Honor, that apparently what the Court is

5 envisioning is that we would conduct these depositions, if we 04:04

6 choose to do so, between now and the start of trial; or the

7 Court also said we could defer the testimony of those five or

8 six individuals until the latter days of the trial.

9 Apparently, the Court is thinking we could conduct some of them

10 during the trial. 04:04

11 We would submit, Your Honor, that all of that would

12 be highly prejudicial to us in presenting our case and

13 preparing for trial.

14 Although, as plaintiff says, in -- I believe it was

15 two of the 30(b)(6) depositions, there were seven attorneys 04:05

16 present on the side of the defendants, three of those were

17 Department of Defense attorneys, obviously who are there

18 because they are in-house counsel and would not be involved in

19 conducting depositions.

20 I think the core of the problem here is that 04:05

21 plaintiff did not disclose these individuals until after the

22 close of discovery. And what they say, as the Court has said,

23 is that they took care of their duty by simply saying in their

24 initial disclosures that they may rely on the testimony of

25 former servicemembers. But, obviously, that's not 04:05

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1 identification by name.

2 What they say in their opposition to our motion in

3 that regard is that, well, if we thought that wasn't

4 sufficient, we should have told them so at that time.

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

7 decided to rely on individuals in that regard.

8 So it seems to me that raising it in relation to the

9 initial disclosures would have been fruitless if plaintiff

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.

13 And it's not true, Your Honor, that they told us

14 immediately that they were going to do that.

15 In fact, if I'm not mistaken, they did not tell us 04:06

16 until May 17th, when they identified those individuals to us,

17 that they had actually decided that, Yes, we are going to rely

18 on the testimony of former servicemembers. So they did not

19 tell us that immediately.

20 THE COURT: I'm sorry. I think they told you on 04:06

21 May 17th; correct?

22 MR. SIMPSON: Correct. On May 17th, they gave us the

23 names, Your Honor.

24 This next point is --

25 THE COURT: And then you got the contact information, 04:07

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1 the phone numbers and the addresses, in early June.

2 MR. SIMPSON: Correct, Your Honor.

3 This next point, I guess, is not determinative, but I

4 think it makes the plaintiff's conduct here even more

5 egregious.

6 It was only after defendants pressed the plaintiff to

7 have a pretrial meet and confer that LCR finally provided the

8 names of those five witnesses. We took the initiative to

9 contact them on May 17th, saying, Look, we have to have a

10 pretrial meet and confer. They initially resisted having that 04:07

11 meet and confer at that time. It was only after we pressed

12 them some more that finally they said, Okay, here's our list of

13 witnesses. And, finally, at that point they gave us the names.

14 And, presumably, if we had not pressed them at that

15 time, they would have given us the names even later. 04:07

16 And, obviously, as the Court has said, we are

17 prejudiced because of the inability to depose those people

18 before discovery cutoff.

19 And not having done that, we are hamstrung in the

20 ability to cross-examine those witnesses at trial. And we 04:08

21 would submit, Your Honor, that trying to depose those people at

22 this point, particularly going into the first week of trial,

23 would be highly prejudicial to our ability to try the case.

24 In addition to what the Court has said from our

25 papers, that's our argument on that issue, Your Honor. 04:08

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1 THE COURT: All right.

2 MR. SIMPSON: I could address now, as well, the issue

3 of the cumulativeness. When we talk about the cumulativeness

4 of presenting testimony of six former servicemembers, I would

5 suggest, Your Honor, that the Court not focus on simply the 04:08

6 cumulativeness. There are basically two areas here.

7 In relation to the former servicemembers, the

8 presented testimony by the former servicemembers ties very much

9 into the whole issue of presenting evidence in a facial

10 challenge; and I think it goes beyond the overall issue on 04:09

11 which the Court has already ruled, denying that aspect of the

12 motion.

13 The plaintiff has said repeatedly that this is a

14 facial challenge. And we cited abundant case law to the Court

15 in our motion, in our papers, that on a facial challenge, the 04:09

16 facts are irrelevant.

17 For example, one court has said a facial challenge is

18 made in a factual vacuum. What they are saying in a facial

19 challenge is, the party is challenging the statute on its face,

20 implying that, aside from the facts, this statute is 04:09

21 unconstitutional.

22 However, the fact that they are now seeking to

23 present testimony, the stories of these six individuals

24 regarding the application of the statute to them, would seem to

25 belie their assertion at the same time that this is a facial 04:09

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1 challenge.

2 Either it is a facial challenge and it's in a factual

3 vacuum, or if it's not a facial challenge, then, yes, you bring

4 in evidence as to the application.

5 But if it's a facial challenge to a statute, then the 04:10

6 individual stories about its application are irrelevant, and

7 letting that evidence in would be erroneous.

8 Now we go to the cumulativeness part.

9 Our assertion on that is that receiving six

10 individual stories about the application of the statute would 04:10

11 simply compound that error six times.

12 And, finally, Your Honor, one other point on that:

13 The fact that LCR here is relying on associational standing

14 also belies their asserted need for this testimony about the

15 application of the statute. 04:10

16 One of the criteria for associational standing,

17 according to the Supreme Court in the Hunt case, is, quote,

18 "Neither the claim asserted, nor the relief requested, requires

19 the participation of individual members in the lawsuit."

20 If such testimony is not required, then it would seem 04:11

21 that permitting it would be a waste of time. It would make

22 this trial not an efficient trial; it would bring in testimony,

23 evidence, that is not required, that is not needed; and it

24 would sully the record that presumably would go up on appeal

25 with material that would be irrelevant and, again, cumulative. 04:11

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1 Your Honor, we would submit.

2 THE COURT: All right.

3 Mr. Woods.

4 MR. WOODS: Thank you, Your Honor.

5 I think, frankly, to begin with, the Court is being 04:11

6 very generous with the government in allowing them to argue the

7 merits of these motions in limine in light of the government's

8 most recent violation of your rules about, this time, the

9 number of motions in limine.

10 We did present to you evidence that the government, 04:12

11 in the meet and confer with us, had indicated that the

12 government intended to pursue at least four motions in limine

13 and told us exactly what they were. At least four motions

14 in limine were then crammed into three motions in limine. All

15 of the three motions in limine have numerous categories and 04:12

16 subparts that add up to far more than three. So I think the

17 government is fortunate that you're even considering these.

18 And that's especially true in light of the government's

19 repeated violations of this Court's rules in the past.

20 We did, as you saw, in our opposition to each of 04:12

21 these three motions in limine, detail every prior violation of

22 the local rules and this Court's rules by the government.

23 And you will see, Your Honor, in the three reply

24 briefs filed by the government, there's no response at all to

25 our argument that they had initially thought about at least 04:12

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1 four motions in limine. There's no response to that point at

2 all. And there's no response at all to our point that this was

3 just the latest of a series or a pattern of local rule

4 violations by the government.

5 But, turning to the merits, counsel really started by 04:13

6 saying he wasn't going to repeat the arguments in the papers.

7 But that's basically what he did.

8 I don't think, Your Honor, that it is highly

9 prejudicial to suggest that the United States of America take

10 five depositions of lay witnesses that could be done in half a 04:13

11 day each. The government may not have seven lawyers today at

12 the counsel table; they only have four. The government has

13 eight lawyers on the caption of this case. The government has

14 had the opportunity to conduct these depositions since

15 May 20th, when we offered them that opportunity. 04:13

16 The government gambled somehow that you would

17 disagree with our position about this and elected not to take

18 those depositions in the time that has passed since May 20th.

19 And I think, again, the Court is being very

20 reasonable and generous in allowing them to take the 04:13

21 depositions now.

22 And I think it's very hard for the government to

23 complain that they are being treated unfairly when you are

24 giving them yet another opportunity to conduct these

25 depositions that they could have already finished if they had 04:14

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1 just applied themselves diligently since May 20th.

2 The other arguments, Your Honor, that were made by

3 counsel fail because of the Court's inclination to apply the

4 Witt standard.

5 If the Court is applying the Witt standard in this 04:14

6 case, that standard specifies as follows: When the government

7 attempts to intrude upon the personal and private lives of

8 homosexuals in a manner that implicates the rights identified

9 in Lawrence, the government must advance an important

10 government interest, the intrusion must significantly further 04:14

11 that interest, and the intrusion must be necessary to further

12 that interest.

13 That's what the government is going to have to prove

14 at this trial if the Court adopts the Witt standard.

15 The testimony of these former servicemembers, 04:15

16 Your Honor, is not introduced for any purpose other than to

17 show that their discharges are representative examples of how

18 the government is not meeting the Witt standard today or over

19 the past several years.

20 These five or six people, out of over 13,000 people 04:15

21 who have been discharged pursuant to this unconstitutional law,

22 are going to tell very different stories about what happened to

23 them.

24 And you saw that in the declarations that we filed.

25 We filed them, in part, to show you that they were not 04:15

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1 cumulative, that some were men, some were women, some were of

2 one branch, some were another branch, some were one rank, some

3 were a different rank, and so on; and some were specifically

4 told by their supervisors that their discharge had nothing to

5 do with unit cohesion or troop morale, the stated purposes of 04:16

6 the policy.

7 So that's what this is about. It has nothing to do

8 with undermining or belying our facial challenge to the

9 Constitution. We're not bringing cases on behalf of these five

10 or six individuals. And they are all different and hardly 04:16

11 cumulative.

12 THE COURT: I'm not persuaded that it's cumulative.

13 That's not a concern to me. I think the number that you gave

14 in your papers, if I recall correctly, was 13,400 persons

15 discharged; so five or six in what's going to be a relatively 04:16

16 short case -- I don't think the testimony is going to take --

17 I'm just not concerned about whether the testimony is

18 cumulative.

19 But in order for the testimony to be relevant in a

20 facial challenge, it can't be testimony that is directed 04:17

21 solely -- or it shouldn't be directed at all, but it can't be

22 directed solely to showing how the policy, as applied to them,

23 is unconstitutional.

24 So it has to be relevant to showing how -- as I

25 understand the argument that you made in the papers and the 04:17

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1 argument that you made just now, their testimony must, as I

2 understand it, be directed to showing how the intrusion -- that

3 is, in this case, the policy -- it goes to the issue of whether

4 the policy significantly furthers the important government

5 interests and whether the intrusion is necessary to further 04:17

6 that interest. So it's a bit of a fine line. But the

7 testimony has to be considered in light of that.

8 It's almost as though, if it was being tried to a

9 jury, I would be instructing the jury they consider it only for

10 those purposes, not to consider it in terms of the effect or 04:18

11 the application of the policy on the individuals.

12 MR. WOODS: Yes, Your Honor. Lots of the facial

13 challenge cases that we have cited to you do involve the

14 presentation of evidence along the way about how that statute

15 has worked in practice. One of the things that seems -- 04:18

16 THE COURT: But not to show that as applied, it's

17 unconstitutional; only to show that the plaintiff meets its

18 burden of showing -- well, succeeding on a facial challenge.

19 MR. WOODS: Right. And I know the government keeps

20 trying to bring up the fact that it's a facial challenge, which 04:19

21 we have not disputed all along; but there is, of course,

22 nothing at all improper about facial challenges.

23 What we've seen in the facial challenges the more we

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

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1 immediately upon the enactment of the statute. Immediately.

2 And the cases we're citing are cases where there's a

3 longer-developed record.

4 THE COURT: Slow down, please.

5 MR. WOODS: Sorry. 04:19

6 What I was trying to say, Your Honor, was that some

7 of the cases about facial challenges are cases where the facial

8 challenge is made immediately. And those are the cases where

9 the facial challenge seldom works, because there's not enough

10 record to show whether it's going to work or not. 04:19

11 So the cases we're citing to you are cases where

12 facial challenges have been upheld after trials with evidence.

13 And those cases happened longer than the other cases; they

14 happened at some point years after the enactment of the

15 statute. And that's what this case is. 04:20

16 THE COURT: All right.

17 Well, let's move to the motion with respect to the

18 expert witnesses, where the government is seeking to bar the

19 plaintiff's seven experts. The government characterizes the

20 testimony of these witnesses as testimony that the policy 04:20

21 continues to have no rational basis today and argues that the

22 testimony is inadmissible under Rules 402 and 702 -- that is,

23 it's neither reliable nor relevant -- and then also argues, in

24 the alternative, that if admissible, it should be limited under

25 Rule 403 to one witness per topic, because otherwise it's 04:21

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1 cumulative.

2 So the seven witnesses are Lawrence Korb -- I'll go

3 through them quickly. I just have a couple of comments about

4 each. I have different concerns about each of them than are

5 necessarily raised in the papers. 04:21

6 As to the motion insofar as it concerns

7 Professor Korb, I don't think it's accurate, at least as I can

8 glean from the expert's deposition testimony that was attached

9 to the motion -- I don't think it's accurate to state that his

10 primary opinion is that the policy is unconstitutional. That's 04:22

11 really a mischaracterization of the transcript of the

12 deposition.

13 I think during the deposition he was asked that, and

14 he gave his opinion, but I don't think that's the primary

15 reason he's being called to testify. 04:22

16 Also, though, keeping in mind, however, that under

17 the federal rules, I don't think that opinion would be

18 admissible. But an expert is allowed to state the ultimate

19 opinion in the case. But I don't think that's why he's being

20 called to testify. 04:22

21 As to -- is it Nathan Frank?

22 MR. WOODS: Nathaniel, Your Honor.

23 THE COURT: Nathaniel. I typed it as "National."

24 And I knew that couldn't be right.

25 Some parts of his opinions, I think, such as the -- 04:22

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1 what I would characterize as the anecdotal bits, would probably

2 not be admissible.

3 As I said earlier, and I don't want to be repetitive,

4 an expert can testify as to the basis for his opinion if he's

5 got -- and I believe he does have other -- I mean, I believe 04:23

6 he's the expert who is trained as an historian -- he can

7 testify about his analysis of the record.

8 But the thing that I found most troubling about the

9 basis for his opinion is what I believe -- it's been a long

10 time since I looked at this issue, but what I believe is still 04:23

11 called the legislator's privilege; that is -- and I'm trying to

12 stay away from the word "sausage" here. But since a legislator

13 cannot be questioned about the reasons and the motivation for

14 his or her vote on legislation, and there's a privilege to that

15 effect, as I read some -- and I think some of the basis for 04:24

16 Professor Frank's opinion is, I think, based on sort of

17 privileged matter to that same effect. Perhaps not all of it.

18 But to the extent that he is opining that -- I know, for

19 example, some of the material that's included in his report

20 includes testimony that was given to Congress about either 04:25

21 members of the military or former members of the military and

22 others. That's testimony. That's, perhaps, one thing. But

23 his opinion is also based, I believe, on statements that were

24 made during the hearings by members of Congress, such as

25 Representative Dorman, that would go into his frame of mind; 04:25

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1 that is, Representative Dorman's. That name stood out to me

2 just because he's -- well, he's no longer in Congress, but he's

3 from this area, so it's a name I recognized. But I think there

4 were other members of Congress whose comments were reported

5 too. 04:25

6 So I think it's one thing to analyze and report and

7 form an opinion based on the hearings and the testimony that

8 was given without splitting hairs, but it's another thing to

9 form an opinion that's based on the reasoning of the

10 legislators, because that is privileged. So, to the extent 04:26

11 that his opinion is based on that, I don't think he could state

12 those -- I don't know that necessarily invalidates all of his

13 opinions, but I don't think he can testify about the reasoning

14 of -- well, I'm hesitant to say that he can testify as to the

15 reasoning of, insofar as the record reveals it. 04:27

16 Aaron Belkin, most of the objections as to his

17 testimony go to the weight, for example, regarding the

18 conclusion that getting rid of the policy wouldn't harm

19 military readiness. Most of those objections that were

20 expressed in the motion go to the weight, not the 04:27

21 admissibility. I think his conclusion is based on a number of

22 subconclusions, including that the military suspended discharge

23 proceedings of a large number of gay servicemen and women

24 during the first Gulf War; and that supports his conclusion

25 that getting rid of the policy wouldn't harm military 04:28

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1 readiness.

2 So the objections to his opinion, again, would go to

3 the weight and not admissibility.

4 As to Robert MacCoun, if I'm pronouncing his name

5 correctly, he's the law professor at Berkeley. I think he has 04:28

6 two fields. Is he also in the Public Policy School? I think

7 he's got two --

8 MR. WOODS: He's a sociologist, Your Honor.

9 THE COURT: Sociologist.

10 So his opinions are really more -- they're not really 04:28

11 legal opinions, but he has various opinions that he offers

12 regarding unit cohesion, task cohesion, and social cohesion.

13 And, again, I think the criticisms of his opinions go

14 to weight and not admissibility; that is, I don't think that

15 they would rise to the level of a true Daubert challenge. 04:29

16 I was just corrected in my last trial by somebody who

17 actually knew Daubert. And it's Daubert. I'm now relieved to

18 know the real pronunciation.

19 As to Professor Hillman at Hastings, I don't really

20 understand what her methodology is. I think that is a Daubert 04:29

21 attack, and so I would ask the plaintiff's counsel to argue as

22 to what methodology underlies her opinions.

23 And then as to Professor Embser-Herbert, her

24 qualifications are impressive, but the impact of the policy on

25 women serving in the military -- I think the government makes a 04:30

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1 good point, that this is not an Equal Protection -- I mean,

2 there's not an Equal Protection claim here, and so I'm

3 hard-pressed to see how that testimony fits within the

4 parameters of the issues raised in this case.

5 Overall, I would say that given what is required 04:30

6 under Rule 702, that is, if the specialized knowledge would

7 assist the trier of fact to understand the evidence, I think

8 all of the witnesses are qualified.

9 I think the first requirement is satisfied. I'm a

10 little concerned, as I said, about Professor Frank's -- whether 04:30

11 it's based on sufficient facts or data. But for the most part,

12 I don't think that's an issue with any of these witnesses,

13 other than Professor Frank.

14 As to Professor Hillman, I'm concerned as to the

15 second requirement under 702, if the testimony is the product 04:31

16 of reliable principles and methods.

17 So with that, I would ask the plaintiff to address

18 those concerns.

19 Some of the other opinions that the government has

20 objected to, some of the testimony may be admissible for one 04:31

21 purpose here but not another. If a witness holds the opinion

22 that the United States should follow the example of another

23 country, such as Canada, that's not admissible, except for a

24 very limited -- it's not admissible. Such an opinion would not

25 be admissible. Because, as the Government points out very 04:32

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1 aptly, the issue here is not the wisdom of the policy.

2 If the witness is relying on data of military

3 readiness or the effect on unit cohesion or the other stated

4 purposes of the policy, and they are relying on data from other

5 forces, and the testimony is given in that framework, then it 04:32

6 may be admissible.

7 And then one last issue that was raised as to

8 Hillman's testimony. Hillman is the Hastings professor.

9 Is she also testifying about a disparate impact on

10 female service members? 04:33

11 MR. FREEBORNE: She is, Your Honor.

12 THE COURT: Then I think I've covered that.

13 All right.

14 MR. GARDNER: Your Honor, if I may, can I address

15 some of the points you have raised, or would you prefer me

16 to --

17 THE COURT: You're Mr. Parker?

18 MR. GARDNER: Gardner.

19 THE COURT: I'm sorry. Gardner.

20 All right. Go ahead. 04:33

21 MR. GARDNER: Thank you, Your Honor.

22 I don't want to repeat what Mr. Simpson said, so I

23 won't, but I do want to be clear that regardless of whatever

24 standard of review you ultimately choose -- and to be clear, I

25 think it's made clear in our papers -- the Witt standard simply 04:33

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1 is inapplicable in a facial challenge. Witt itself says so.

2 But to the extent that this Court disagrees with

3 that, the fact of the matter is, this is a facial challenge.

4 And plaintiff has not cited a case where expert testimony is

5 utilized to support a facial constitutional challenge to a 04:34

6 statute. They simply have not.

7 Remember, Your Honor, in Cleburne, there was a facial

8 and as-applied challenge. The Supreme Court didn't consider

9 factual testimony in terms of invalidating the city ordinance

10 in the facial challenge. In fact, Cleburne went one step 04:34

11 further and said, We are not going to resolve the facial

12 constitutional challenge because those are disfavored, so we're

13 going to look at the as-applied challenge.

14 Lawrence, Your Honor, is also completely inapposite.

15 In Lawrence, the Court looks to facts -- by the way, gleaned 04:34

16 from amicus briefs, not discerned at a trial -- to determine

17 whether or not the logical historical underpinnings of the

18 Bowser decision should be overruled; in other words, should

19 stare decisis be departed from, not whether or not the Texas

20 ordinance that was criminalizing consensual private sex should 04:34

21 or should not be held unconstitutional as a facial challenge.

22 The fact of the matter is, facial challenges are not subject to

23 fact-finding, period. And the plaintiff cannot give an example

24 to the contrary.

25 We, on the other hand, have given multiple examples 04:35

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1 of where that is the case. But even if we were to get away

2 from that basic principle, that you cannot consider evidence

3 for a facial constitutional challenge, there are a host of

4 other legal impediments to the consideration of this testimony.

5 I know this Court alluded to the notion that 04:35

6 testimony challenging the wisdom of Congress is inadmissible.

7 We agree with that. But that is the purpose for which these

8 experts seek to offer testimony.

9 And here's the proof of that, Your Honor: What

10 plaintiff's experts want to provide this Court is the 04:35

11 following: There's no empirical evidence to support "Don't

12 Ask, Don't Tell." Foreign militaries do it, therefore the unit

13 cohesion rationale that Congress considered has somehow been

14 undermined. Unit cohesion, that argument is without merit.

15 But the fact of the matter is, Your Honor, in a 04:36

16 facial constitutional challenge, the Court looks at the

17 legislative history. And what does the legislative history say

18 in this case? And the plaintiff doesn't dispute this. It's

19 indisputable, frankly.

20 Congress heard testimony about foreign militaries and 04:36

21 weighed that testimony and ultimately reached a conclusion.

22 Plaintiff wants to bring in expert testimony to challenge that

23 conclusion to say, We understand Congress considered foreign

24 militaries and ultimately decided, while that may be a relevant

25 data point, it's not dispositive. Plaintiff's experts are 04:36

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1 going to come in and say, No, they are dispositive, and they

2 show the lack of logic in Congress's determinations.

3 Unit cohesion. Same example.

4 In fact, Dr. MacCoun, I think, is a particularly good

5 example of this. There's no dispute now, as plaintiff 04:36

6 acknowledged in its reply brief to the motion in limine, that

7 Dr. MacCoun, who offered Chapter 10 of the RAND report, was

8 submitted to Congress. Chapter 10 dealt with, just like his

9 expert opinion, unit cohesion.

10 Congress considered that RAND report, as well as all 04:37

11 sorts of other testimony, and reached a judgment. Plaintiff

12 now wants to bring in expert testimony to challenge that

13 judgment about unit cohesion.

14 And the same thing is true with empirical evidence,

15 Your Honor. Plaintiff wants to come in and say there was no 04:37

16 empirical evidence that Congress considered.

17 One, factually, that's not true; two, we don't need

18 an expert to say what Congress did or did not consider. The

19 legislative history says what Congress considered. And even

20 under a heightened scrutiny test, such as Goldman by the 04:37

21 Supreme Court, scientific studies are not necessary,

22 particularly in the context of the military, where the

23 judiciary routinely defers to the wisdom and judgment of

24 Congress.

25 THE COURT: Well, you know, you cite Goldman in your 04:37

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1 papers several times, but Goldman -- and I'm trying to remember

2 the exact wording the way you used it -- but Goldman was really

3 quite narrowly focused on the lack of -- I'm trying to remember

4 the exact wording of this holding, because I think you expanded

5 it beyond that -- on the lack of factual record that was needed 04:38

6 to analyze the dress code in the military.

7 That's the Yamika case; right?

8 MR. GARDNER: That's the Yamika case. That's right,

9 Your Honor.

10 And there was a regulation by the Department of the 04:38

11 Air Force.

12 And what did the Supreme Court do in that case? They

13 looked at the plain language of that regulation.

14 Justice Rehnquist, former-Chief Justice Rehnquist,

15 said, You know what, I don't need expert testimony to say 04:38

16 whether or not this is a good policy, a bad policy or whether

17 this policy makes sense. We're going to look at the plain

18 language of the regulation and make that determination.

19 That's the exact analysis this Court should apply

20 here. 04:39

21 And I know that the plaintiff, in its supplemental

22 brief, took the position that, Look, if you apply the

23 Witt standard and you conclude that the government has the

24 burden of proof, the government has not met that burden of

25 proof, and they're entitled to summary judgment. 04:39

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1 I think the plaintiff and the defendants agree on one

2 point, Your Honor. This is a legal conclusion. And to the

3 extent you conclude, and we would argue erroneously, that Witt

4 somehow applies and that somehow that shifts the burden to the

5 government, the government is not presenting evidence in this 04:39

6 case, Your Honor. And we can be very clear about that.

7 The government is relying upon the statute and

8 legislative history. So if you conclude that somehow the

9 government bears some burden in a facial constitutional

10 challenge, I don't know why there would be a need to have a 04:39

11 trial in this case. I think plaintiff has made that point in

12 its supplemental brief.

13 With respect to the animus issue, I know the Court

14 touched on the legislator privilege. I think it's broader than

15 that, Your Honor. The Court does not look at the motivations 04:39

16 of anyone associated with the legislation in a facial

17 constitutional challenge.

18 Instead, what it does is, it looks at the purposes

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

22 reasons. Because Philips has already resolved this. Because

23 Witt itself, in an as-applied context, said there are

24 legitimate reasons for "Don't Ask, Don't Tell." And those

25 involve things such as sexual tension, privacy, and unit 04:40

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1 cohesion. And regardless of the Lawrence decision, those

2 findings remain good law to this day.

3 In fact, the First Circuit's decision in Cook makes

4 that clear. Cook, a post-Lawrence case, considered Lawrence

5 and considered the unique context of the military and 04:40

6 determined that "Don't Ask, Don't Tell" was facially

7 constitutional. And it did that, it conducted that analysis,

8 Your Honor, by looking at the statute and legislative history.

9 Even the case the plaintiff cites to, where their two

10 experts testified, MacCoun and Korb, the Abel case, actually 04:41

11 refutes this notion that expert testimony is relevant or

12 important. In Abel, the Eastern District of New York didn't

13 even address the testimony of expert witnesses. Rather, it did

14 exactly what we are suggesting you should do in this case:

15 Look at the legislative history, look at the text of the 04:41

16 statute, and make a conclusion based upon that.

17 Ultimately, the Eastern District did, and that

18 decision was reversed by the Second Circuit, which has

19 concluded that "Don't Ask, Don't Tell" is constitutional.

20 In fact, Your Honor, the fact that different circuits 04:41

21 have held, even in an as-applied basis, that "Don't Ask, Don't

22 Tell" is constitutional should doom a facial constitutional

23 challenge. Because, under Salerno, it reveals the fact that

24 there are constitutional applications.

25 So I think that addresses many of the general 04:42

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1 relevance objections the government had under 702 and whether

2 or not this is probative of anything.

3 I do want to quickly address Dr. Korb's opinion.

4 Dr. Korb's opinion in this case -- I asked him at his

5 deposition, What is your opinion in this case? 04:42

6 He answered that "Don't Ask, Don't Tell" is

7 unconstitutional.

8 And how do you get there, Dr. Korb?

9 I get there because I don't see a rational basis for

10 it.

11 And if you look at Dr. Korb's report, that's all it

12 purports to be. In fact, the whole back half of Dr. Korb's

13 report is nothing but a regurgitation of some of the other

14 expert witnesses in this case's conclusions.

15 For example, I believe beginning at Page 8, if you 04:42

16 look at Dr. Korb's opinion, there's either no facts or data

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

19 I think in the section before that, he relies upon a

20 Rachael Maddow interview. 04:43

21 Even if this testimony were otherwise admissible

22 under the first prong of 702, to the extent it could ever be

23 helpful to the Court in a facial constitutional challenge, the

24 reliability is facially inherently suspect.

25 This Court has already addressed the disparate 04:43

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1 treatment claim from lesbian service members, and I won't

2 rehash that.

3 But I do want to focus a little bit more on Korb's

4 reliability issue. Dr. Korb was asked repeatedly at his

5 deposition, Are you challenging the wisdom of Congress in its 04:43

6 failure to consider certain issues? Are you challenging the

7 wisdom of Congress in its weighing of issues differently?

8 And what did Dr. Korb say repeatedly, as we noted in

9 our motion? Yes, I'm challenging the wisdom of Congress.

10 Now, I understand the plaintiff now wants to sort of 04:44

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

13 of his expert report reveals exactly the opposite, that all of

14 their expert witnesses at the end of the day want to challenge

15 the congressional findings. And that is simply inappropriate. 04:44

16 I know this Court has considered the cumulativeness

17 issue under 403.

18 The only other point I wanted to raise briefly was

19 Dr. Belkin's, quote, "revised report."

20 As we mentioned in the motion, that revised opinion 04:44

21 should be struck. That's an opinion related to privacy.

22 And just very quickly, per the pretrial schedule in

23 this case, Dr. Belkin submitted an initial expert report on

24 January 15th of this year. And there's no dispute whatsoever

25 that he didn't offer any opinions about privacy in that 04:45

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1 original report.

2 The night before his deposition, as Dr. Belkin

3 testified, counsel for LCR asked Dr. Belkin, Hey, Dr. Belkin,

4 will you offer an opinion about privacy?

5 So the next day at his deposition, my colleague, 04:45

6 Mr. Freeborne, asked Dr. Belkin, What did you do to prepare for

7 your deposition?

8 Spoke to counsel.

9 What did you speak about?

10 Privacy. 04:45

11 And that's where the privacy discussion came up.

12 And then on March 24th, approximately three weeks

13 later, Dr. Belkin now submits a revised report offering an

14 opinion about privacy.

15 This isn't a circumstance where Rule 26(e) applies. 04:45

16 There is certainly no duty to supplement a report as, quote,

17 "new facts become available." Dr. Belkin presumably had these

18 facts. In fact, Dr. Belkin testified at his deposition that

19 he's considered privacy issues before.

20 Frankly, this last-ditch effort to offer what is 04:46

21 essentially a rebuttal opinion is inappropriate and should be

22 excluded under Rule 37. The fact that the government asked

23 Dr. Belkin questions about the issue is largely irrelevant,

24 because, again, this is a violation of Rule 16 now and the

25 pretrial order deadlines. Plaintiff has to show good cause as 04:46

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1 to why it has the opportunity to issue revised opinions. It's

2 failed to meet that burden.

3 Thank you, Your Honor.

4 THE COURT: Thank you.

5 Mr. Woods. 04:46

6 MR. WOODS: Your Honor, I have several comments about

7 each of the individual experts, and then I want to talk about a

8 larger subject when I'm finished with that.

9 First, you asked about portions of the testimony of

10 Professor Frank and the potential application of the 04:47

11 legislator's privilege to that testimony.

12 As we all know, that issue was not part of the

13 government's motion in limine. It was not briefed and has not

14 been briefed.

15 And so what I intend to do, Your Honor, between now 04:47

16 and the date that we call Professor Frank, is to consider that

17 issue very carefully. If we think that his testimony or parts

18 of it would be in violation of that privilege, we won't ask him

19 those questions.

20 If we, however, Your Honor, conclude that it would 04:47

21 not violate that privilege, then we will supplement our

22 briefing on this for you and provide you a brief about that.

23 Because I seem to recall school prayer cases where the intent

24 of the legislators was considered as part of the constitutional

25 challenge to school prayer issues. But, as I said, we'll brief 04:47

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1 that later on.

2 With respect to Ms. Embser-Herbert, the point here,

3 Your Honor, is not that it's an Equal Protection claim. We

4 know it's not an Equal Protection claim.

5 And while people, including her perhaps, use the term 04:48

6 "disproportionate impact," it's not used in that sense. The

7 sense of it is that "Don't Ask, Don't Tell" doesn't further its

8 stated policies because of the way it is impacting women

9 instead of men. If the policy really was to further the

10 interests that it is supposedly furthering, you wouldn't see 04:48

11 40 percent of the discharges being women. We're not offering

12 it to support an Equal Protection claim; we're offering it to

13 show that the policy doesn't accomplish its stated purposes.

14 She is a sociologist who's testifying, from that

15 viewpoint, on how the policy disproportionately impacts women 04:48

16 and related subjects.

17 In contrast, Elizabeth Hillman, Your Honor, who is a

18 professor of law, is not testifying as a lawyer in this case;

19 she's testifying as a historian, a military historian no less,

20 whose particular emphasis is on military history and women. 04:49

21 She was in the military herself. So her testimony is from that

22 angle.

23 And you asked about her methodology and whether it

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

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1 explain it in as much detail as others. But as a social

2 scientist, historian in particular, it's not a situation where

3 you're going to find scientific experiments. She's going to

4 rely on the traditional things a historian, particularly with

5 an emphasis on military history and issues about women in 04:49

6 military issues, would testify.

7 And, again, I think that's something that perhaps

8 ought to be best taken up at the trial. If it doesn't qualify

9 once we lay a foundation, we can deal with it at that point,

10 Your Honor. 04:50

11 Similarly, counsel just asked about Professor Korb.

12 And I have to say, I mean, I think his argument about

13 Professor Korb doesn't do his stature the service it deserves.

14 And this is a recognized member of our military defense

15 organization from his career. 04:50

16 THE COURT: He is the former Assistant Secretary of

17 Defense.

18 MR. WOODS: Yes. And he's certainly not going to

19 come here, Your Honor -- we aren't calling him to say any legal

20 opinion or conclusion. I hope counsel would give us a little 04:50

21 more credit than that.

22 With regards to Professor Belkin's revised report, we

23 covered that, Your Honor, in the declaration of Ms. Feldman

24 that we submitted with our opposition papers.

25 What happened was, in the pre-deposition meeting, he 04:51

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1 was informed that he would likely be asked questions about

2 privacy. And so he was. He was asked in his deposition if he

3 would be supplementing his report. He said, Yes, I'd be happy

4 to. And he did. And those are the facts before you now.

5 And, again, those are the facts we put to you in 04:51

6 Ms. Feldman's declaration in opposition to the motion. The

7 government's reply papers did not contradict them at all.

8 Once again, I think you hit on this before when you

9 were saying that the government was trying to have it both

10 ways. In other words, the government is trying to say that in 04:51

11 a facial challenge, all the Court can look at is the

12 legislative history, and at the same time exclude all of our

13 evidence, so therefore what could possibly be challenged?

14 But I think we have briefed adequately, throughout

15 all of the papers that we have filed leading up to this 04:52

16 conference, the points that we have made throughout, which is

17 that the position by the government is just plain wrong.

18 We have many cases, Cleburne, Lawrence, and other

19 facial challenge cases, where evidence was admitted after the

20 enactment of the statute, both in terms of what people learned 04:52

21 about the enactment of the statute after it was passed and how

22 it was implemented in practice. We've got lots of cases in our

23 opposition to the summary judgment motion, in our pretrial

24 memorandum of contentions of fact and law, and our proposed

25 findings of fact and conclusions of law, and in our 04:52

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1 supplemental brief on Witt.

2 Again, counsel for the government continues to cite

3 to you cases that are not governing law in this circuit. I

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.

7 He cites Cook. And the Cook case says many, many

8 times that it explicitly disagrees with the Witt case; And so

9 it is not the law of this circuit. Witt is.

10 Once again, the Government is ignoring the 04:53

11 controlling law in the circuit, which is the Witt case.

12 And he mentions the Abel case in which two of our

13 experts were qualified as experts.

14 You know, once the Court allows evidence to come in

15 on a facial challenge, it really shouldn't matter whether the 04:53

16 evidence is from an individual who presents facts or whether

17 it's from an expert who synthesizes many facts and makes these

18 facts more useful and intelligently presented to the Court.

19 So all of these arguments, I think, Your Honor, we

20 have already covered. 04:53

21 I do want to go back to one other thing, though, that

22 Mr. Gardner said.

23 I think, Your Honor, we're all waiting for a final

24 definitive ruling on the government's motion for summary

25 judgment on the merits and a final ruling as to whether the 04:54

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1 Witt standard does apply.

2 THE COURT: The Witt standard does apply.

3 I have not issued a written ruling on it, and I had

4 hoped to have it by today, but a ruling on the motion is going

5 to go out this week. But the Witt standard, that part is done, 04:54

6 and the Witt standard is going to apply.

7 MR. WOODS: Very well. Thank you.

8 And I think that's right, for all of the reasons

9 we've briefed before.

10 But I want to follow up on something Mr. Gardner just 04:54

11 said. He said to you a moment ago, if I heard him correctly,

12 Your Honor, that if the Witt standard applies --

13 THE COURT: Please slow down. I'm going to put a

14 sign on the lectern for this trial, I can see. It won't be the

15 first time I've done that. 04:54

16 MR. WOODS: Or the last.

17 THE COURT: And it's going to apply to both sides.

18 Go ahead.

19 MR. WOODS: I should speak more slowly on this point,

20 because it's really important. 04:55

21 If I understood what Mr. Gardner just said correctly,

22 he said that if the Witt standard applies, and we know what

23 that means, that means the Government has a burden to show

24 certain things. He has just said, again, that the government

25 does not intend to present any evidence at this trial beyond 04:55

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1 the legislative history.

2 I will remind you, Your Honor, you gave the

3 government the opportunity to present evidence in your order

4 requesting supplemental briefing about the application of the

5 Witt standard and whether "Don't Ask, Don't Tell" survives in 04:55

6 light of the Witt standard's application to this case. And the

7 government chose not to present any evidence in response to

8 that invitation you gave to the government.

9 Mr. Gardner just said, If the Witt standard applies

10 and we're not going to produce any evidence, there may be no 04:56

11 need for a trial.

12 Your Honor, I think, for once, I happen to agree with

13 Mr. Gardner. There is no need for a trial if that's the

14 government's position.

15 Instead, you should grant summary judgment right now, 04:56

16 right here, to us, sua sponte. Because once the Witt standard

17 applies, we know what that means. I read it already to you

18 once today. It's in your order. The government has to show

19 certain things. If the government does not intend to show

20 that, then there is no need for a trial and we win. And that's 04:56

21 something I think that may be worthy of some further

22 consideration.

23 Thank you, Your Honor.

24 THE COURT: All right.

25 MR. GARDNER: Your Honor, may I add just one very 04:56

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1 quick point. You've indicated that you're going to apply the

2 Witt standard.

3 THE COURT: I'm not going to hear any more argument

4 on the Witt standard. I gave both sides the opportunity to

5 brief the Witt standard, and the government's brief didn't 04:57

6 really address the Witt standard.

7 You spent the first, I can't remember, four or five

8 pages addressing whether the Court should issue a stay in this

9 case, but you didn't address the Witt standard. And I have a

10 lot of attorneys waiting outside for my next matter, so I need 04:57

11 to move on to finish up with your case. So no more argument on

12 the motions.

13 Is there a motion to exclude witnesses during

14 testimony?

15 MR. FREEBORNE: Yes, Your Honor. 04:57

16 Just to be clear, obviously experts would not be

17 excluded, nor the party representative, but the fact witnesses

18 would. And just to be clear, there can be no discussion with a

19 witness while they're on the stand.

20 THE COURT: No discussion of the witness while... 04:57

21 MR. FREEBORNE: No discussion with the witness while

22 he or she is on the stand.

23 THE COURT: Of course. That's right.

24 So each side is responsible for making sure that your

25 witnesses know to stay out of the courtroom during -- that 04:58

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1 doesn't include, of course, openings and closings, just

2 testimony. And it doesn't apply to experts. Make sure your

3 witnesses know to remain outside of the courtroom during

4 testimony.

5 Then we have the issue of Mr. MacCoun. 04:58

6 Is he to be considered unavailable because under the

7 terms of his contract, he can't testify?

8 MR. WOODS: Your Honor, we have served him with a

9 trial subpoena. We filed a proof of service of that subpoena

10 today. I continue to believe that he will not appear despite 04:58

11 the subpoena. I imagine that we only recently served the

12 subpoena, and it's possible that he may appear, but I tend to

13 doubt it.

14 THE COURT: He's the witness that works at RAND?

15 MR. WOODS: He is working for RAND currently, yes. 04:59

16 He's a UC Berkeley professor by profession.

17 THE COURT: But he takes the position that he can't

18 testify because of the terms of his consulting contract with

19 RAND?

20 MR. WOODS: Yes, Your Honor. 04:59

21 THE COURT: All right. Well, was his deposition

22 videotaped?

23 MR. WOODS: It was not, Your Honor.

24 THE COURT: The government cited some authority to

25 the effect that it's preferable to have a witness testify in 04:59

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1 person than by deposition, which is true. The thing that's not

2 clear to me is that a witness could be considered unavailable

3 because, by the terms of a contractual obligation, he more or

4 less declares himself unavailable.

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

7 in this district, completely overworked.

8 I think I'm going to research that a little bit. If

9 I'm not persuaded that makes him unavailable, then it's just

10 like any other witness, expert or no, if he doesn't obey a 05:00

11 subpoena, then he'll receive another kind of invitation to

12 appear.

13 MR. WOODS: We will also research that, Your Honor,

14 and perhaps we could let Professor MacCoun know that he may get

15 a different kind of invitation to appear. 05:00

16 THE COURT: You know, a witness is a witness. I just

17 went through this with some other reluctant witnesses in the

18 trial that I hope to finish tomorrow, so...

19 There are no exemptions. Occupation is not an

20 exemption. 05:01

21 But I'm just not sure whether it's a contractual

22 obligation. I don't know why it would be. So one way or the

23 other -- he may be riding in a different sort of vehicle than

24 he's used to to appear.

25 Any other witness issues that we're aware of? 05:01

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1 MR. WOODS: No, Your Honor.

2 THE COURT: All right.

3 Is either side going to use any equipment other than

4 the equipment that's in the courtroom?

5 For example, are you going to hook up your own 05:01

6 computers to do PowerPoints, anything like that?

7 MR. GARDNER: We do intend to use TrialDirector, Your

8 Honor, and we do intend to use realtime. As I understand it,

9 we can use the courtroom's facilities both to transmit

10 documents through TrialDirector and using the E.L.M.O. And for 05:01

11 realtime, we will bring in our own laptops, if that's --

12 THE COURT: That's fine. When you say "Trial

13 Director"...

14 MR. GARDNER: TrialDirector is one of the proprietary

15 software items that allows you to put up documents on the 05:02

16 screen. It's a little more high tech than the E.L.M.O. It

17 allows you to blow up portions of documents, et cetera.

18 THE COURT: I just wasn't familiar with it.

19 And your side?

20 MR. WOODS: I imagine we'll do something similar, 05:02

21 Your Honor.

22 THE COURT: Just make sure to make an appointment

23 through Ms. Dillard to come in and get your equipment

24 installed; and make sure, through the Court's IT person, that

25 everything works smoothly, so that we're ready to go on the 05:02

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1 morning of.

2 You should be able to set your things up -- I've

3 always wanted to say this: Have your people talk to my people,

4 the Friday before trial and make sure everything is up and

5 working. The courtroom should be available to you. 05:02

6 Make sure your depositions are lodged with the Court,

7 with the clerk before trial.

8 Make sure that you comply with the local rule about

9 redacting any personal identifying information, including

10 social security numbers, home addresses, and telephone numbers 05:03

11 of individual persons.

12 I'll allow the parties to make a short opening

13 statement, but keep in mind I've already read your memorandum

14 of contentions of law and fact; but you're free to give a short

15 opening statement at the beginning, if you'd like. 05:03

16 MR. FREEBORNE: Your Honor, that presents some

17 particular difficulties for us. Obviously, the way we see this

18 case is, it presents legal issues; and I know Your Honor has a

19 standing order which prohibits legal argument in the context of

20 an opening statement. We would ask that opening statements be 05:04

21 dispensed with. The parties have been heard on these issues.

22 THE COURT: I'm not so concerned in a court trial. I

23 mean, as lawyers who practice regularly in front of me can tell

24 to you, to their dismay I'll interrupt in a jury trial, even

25 without objection from the other side, if I think it's 05:04

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1 argument.

2 I agree with you in this case that it's hard to

3 separate. So if you want to waive, you can waive. But if you

4 want to give a brief opening to set the stage, you can do so.

5 But I am familiar, and I hope to be even more 05:04

6 familiar by July 13th. So if you want to set the stage and

7 give a brief opening, that's fine. If you want to waive,

8 that's fine.

9 A joint witness list is to be submitted.

10 When I take up my other matter, Ms. Dillard will talk 05:05

11 to you about the exhibit list and the exhibit notebooks and so

12 forth. Then she'll return those to you.

13 So, like I said, you can -- well, you know what I

14 mean by recycling them, use them for these purposes.

15 I will issue a written ruling on the motions 05:06

16 in limine.

17 And, like I said, I intend to have the ruling on the

18 motion for summary judgment out this week.

19 Anything further from either side?

20 MR. FREEBORNE: Your Honor, when can we expect the 05:06

21 order on the motions in limine?

22 THE COURT: This week. It's mostly done, so this

23 week.

24 MR. FREEBORNE: Thank you.

25 MR. WOODS: Nothing further, Your Honor. 05:06

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1 THE COURT: All right. Thank you very much.

2 (Proceedings concluded.)

4 CERTIFICATE

6 I hereby certify that pursuant to section 753, title 28, United


States Code, the foregoing is a true and correct transcript of
7 the stenographically recorded proceedings held in the above-
entitled matter and that the transcript page format is in
8 conformance with the regulations of the Judicial Conference of
the United States.
9

10 _/S/ Theresa A. Lanza _________________


CSR, RPR Date
11 Federal Official Court Reporter

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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0 adducing [1] - 16:14 animus [2] - 10:6, 41:13, 45:23, 46:21


6
adequately [1] - 45:13 aside [1] - 27:20
53:14 answer [2] - 13:14, aspect [1] - 27:11
04-8425-VAP(ex [1] - 6108 [1] - 2:15 admissibility [6] - 19:14 asserted [2] - 28:14,
4:4 633 [1] - 2:6 7:15, 7:23, 8:2, 37:21, answered [1] - 47:6 28:18
38:3, 38:14 appeal [1] - 28:24 assertion [2] - 27:25,
1 7 admissible [12] - appear [8] - 6:8, 28:9
7:24, 14:18, 17:25, 6:10, 11:5, 58:10, assist [1] - 39:7
34:24, 35:18, 36:2, 58:12, 59:12, 59:15, Assistant [1] - 52:16
10 [2] - 43:7, 43:8 702 [5] - 34:22, 39:6,
39:20, 39:23, 39:24, 59:24 associated [1] -
12 [1] - 12:8 39:15, 47:1, 47:22
39:25, 40:6, 47:21 APPEARANCES [1] - 45:16
13,000 [1] - 31:20 7th [2] - 15:1, 16:17
admission [1] - 8:20 2:1 associational [2] -
13,400 [1] - 32:14
admit [1] - 10:21 appearances [1] - 28:13, 28:16
13th [2] - 4:17, 62:6 8 admitted [7] - 8:10, 4:6 assume [1] - 23:22
14 [1] - 4:3
11:5, 11:12, 11:16, application [10] - assuming [1] - 18:20
15th [1] - 48:24
8 [1] - 47:15 11:23, 12:2, 53:19 12:22, 27:24, 28:4, attached [1] - 35:8
16 [1] - 49:24
adopt [1] - 15:10 28:6, 28:10, 28:15, attack [1] - 38:21
17th [5] - 14:25,
25:16, 25:21, 25:22, 9 adopts [1] - 31:14 33:11, 50:10, 56:4, attempting [1] -
advance [7] - 6:14, 56:6 23:16
26:9
11:22, 15:22, 15:23, applications [1] - attempts [1] - 31:7
1900 [1] - 2:7 9 [1] - 10:9 23:11, 23:14, 31:9 46:24 attorneys [3] - 24:15,
90071-2007 [1] - 2:7 affect [2] - 13:8, applied [7] - 31:1, 24:17, 57:10
2 13:25 32:22, 33:16, 41:8, authenticated [1] -
A afternoon [1] - 4:11 41:13, 45:23, 46:21 17:24
20 [1] - 2:14 ago [1] - 55:11 applies [7] - 12:17, authenticity [1] -
20001 [1] - 2:15 agree [13] - 6:1, 7:15, 45:4, 49:15, 55:12, 8:22
Aaron [3] - 2:6, 4:14,
2010 [1] - 4:1 7:19, 7:24, 8:5, 8:9, 55:22, 56:9, 56:17 authority [1] - 58:24
37:16
202-353-0543 [1] - 9:15, 14:1, 18:10, apply [12] - 9:22, available [5] - 5:12,
Abel [3] - 46:10,
2:16 42:7, 45:1, 56:12, 15:20, 16:7, 31:3, 15:12, 16:22, 49:17,
46:12, 54:12
20th [4] - 16:22, 62:2 44:19, 44:22, 55:1, 61:5
ability [3] - 14:24,
30:15, 30:18, 31:1 agreed [1] - 17:23 55:2, 55:6, 55:17, Avenue [1] - 2:14
26:20, 26:23
213-620-7772 [1] - ahead [3] - 11:17, 57:1, 58:2 aware [1] - 59:25
able [3] - 4:24, 5:17,
2:8 40:20, 55:18 applying [1] - 31:5
61:2
Air [1] - 44:11 appointment [1] -
24th [1] - 49:12 absence [1] - 4:20 B
26 [1] - 15:15 al [1] - 4:5 60:22
abundant [1] - 27:14
26(e [1] - 49:15 allow [5] - 9:12, April [3] - 16:6, 25:6,
accomplish [1] -
17:10, 19:3, 19:16, 25:11 backup [2] - 5:7,
26th [2] - 16:6, 25:11 51:13
61:12 aptly [1] - 40:1 5:14
27th [1] - 25:6 according [2] -
allowed [1] - 35:18 area [1] - 37:3 bad [1] - 44:16
28 [1] - 4:1 12:12, 28:17
allowing [5] - 14:14, areas [1] - 27:6 balancing [1] - 22:8
accurate [3] - 20:11,
14:16, 16:9, 29:6, argue [4] - 22:13, bar [2] - 14:6, 34:18
3 35:7, 35:9
29:6, 38:21, 45:3 based [13] - 7:9,
30:20
acknowledged [1] -
allows [3] - 54:14, argues [6] - 12:17, 8:16, 8:25, 10:5,
43:6
30(b)(6 [6] - 12:25, 60:15, 60:17 13:1, 13:6, 15:8, 11:18, 36:16, 36:23,
action [1] - 21:14
13:15, 13:24, 14:13, alluded [1] - 42:5 34:21, 34:23 37:7, 37:9, 37:11,
add [2] - 29:16, 37:21, 39:11, 46:16
16:24, 24:15 almost [2] - 9:16, argument [15] -
56:25 basic [2] - 42:2,
37 [1] - 49:22 33:8 12:21, 16:25, 21:3,
addition [1] - 26:24 45:21
37(c)(1 [2] - 14:22, alternative [1] - 21:25, 22:6, 26:25,
address [9] - 9:7, basis [8] - 12:2,
22:9 34:24 29:25, 32:25, 33:1,
23:23, 27:2, 39:17, 12:13, 34:21, 36:4,
3:27 [1] - 4:1 America [2] - 4:5, 42:14, 52:12, 57:3,
40:14, 46:13, 47:3, 36:9, 36:15, 46:21,
30:9 57:11, 61:19, 62:1
57:6, 57:9 47:9
4 addressed [1] -
amicus [1] - 41:16 arguments [4] -
analysis [3] - 36:7, 21:24, 30:6, 31:2, bears [1] - 45:9
47:25 became [1] - 20:15
44:19, 46:7 54:19
4 [1] - 3:3 addresses [4] -
analyze [2] - 37:6, arranged [2] - 5:7, become [3] - 11:24,
40 [1] - 51:11 14:25, 26:1, 46:25, 20:4, 49:17
44:6 5:11
402 [1] - 34:22 61:10
anecdotal [1] - 36:1 arrangements [1] - begin [2] - 4:17, 29:5
403 [2] - 34:25, 48:17 addressing [2] -
Angeles [1] - 2:7 17:4 beginning [3] - 17:7,
23:22, 57:8
angle [1] - 51:22 article [1] - 47:18 47:15, 61:15
adduced [1] - 21:15
animate [2] - 45:19 as-applied [4] - 41:8, begins [1] - 16:17

Case Name/number date


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2

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

Case Name/number date


303
Case: 10-56634 10/25/2010 Page: 66 of 74 ID: 7521688 DktEntry: 9-14
3

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

Case Name/number date


304
Case: 10-56634 10/25/2010 Page: 67 of 74 ID: 7521688 DktEntry: 9-14
4

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

Case Name/number date


305
Case: 10-56634 10/25/2010 Page: 68 of 74 ID: 7521688 DktEntry: 9-14
5

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

Case Name/number date


306
Case: 10-56634 10/25/2010 Page: 69 of 74 ID: 7521688 DktEntry: 9-14
6

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

Case Name/number date


307
Case: 10-56634 10/25/2010 Page: 70 of 74 ID: 7521688 DktEntry: 9-14
7

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,

Case Name/number date


308
Case: 10-56634 10/25/2010 Page: 71 of 74 ID: 7521688 DktEntry: 9-14
8

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,

Case Name/number date


309
Case: 10-56634 10/25/2010 Page: 72 of 74 ID: 7521688 DktEntry: 9-14
9

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,

Case Name/number date


310
Case: 10-56634 10/25/2010 Page: 73 of 74 ID: 7521688 DktEntry: 9-14
10

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

Case Name/number date


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11

42:14 17:10, 17:14, 19:16, 47:18


W
undermining [1] - 21:23, 22:2, 22:16,
32:8 22:21, 23:2, 23:3,
underpinnings [1] - waiting [2] - 54:23, 23:21, 23:24, 26:8,
41:17 57:10 26:13, 26:20, 30:10,
understood [1] - waive [3] - 62:3, 62:7 34:18, 34:20, 35:2,
55:21 waivers [1] - 14:15 39:8, 39:12, 46:13,
unfairly [1] - 30:23 walk [1] - 8:23 47:14, 48:14, 57:13,
unforeseen [1] - wants [4] - 42:22, 57:17, 57:25, 58:3,
4:20 43:12, 43:15, 48:10 59:17
unique [1] - 46:5 War [1] - 37:24 witnesses' [2] - 16:3,
unit [9] - 32:5, 38:12, Washington [1] - 16:5
40:3, 42:12, 42:14, 2:15 Witt [33] - 15:10,
43:3, 43:9, 43:13, waste [1] - 28:21 15:20, 15:21, 16:7,
45:25 ways [2] - 23:9, 22:18, 31:4, 31:5,
United [4] - 4:5, 4:8, 53:10 31:14, 31:18, 40:25,
30:9, 39:22 weak [1] - 19:17 41:1, 44:23, 45:3,
uNITED [1] - 2:11 week [10] - 4:25, 5:2, 45:23, 54:1, 54:8,
unnecessary [3] - 5:3, 5:10, 5:17, 26:22, 54:9, 54:11, 55:1,
6:9, 6:11 55:5, 62:18, 62:22, 55:2, 55:5, 55:6,
unwilling [1] - 7:20 62:23 55:12, 55:22, 56:5,
up [21] - 5:15, 5:25, weeks [5] - 5:12, 56:6, 56:9, 56:16,
6:20, 8:6, 14:19, 5:23, 16:19, 16:21, 57:2, 57:4, 57:5, 57:6,
20:20, 28:24, 29:16, 49:12 57:9
33:20, 49:11, 52:8, weighed [1] - 42:21 women [8] - 32:1,
53:15, 55:10, 57:11, weighing [1] - 48:7 37:23, 38:25, 51:8,
59:5, 60:5, 60:15, weight [4] - 37:17, 51:11, 51:15, 51:20,
60:17, 61:2, 61:4, 37:20, 38:3, 38:14 52:5
62:10 West [1] - 2:6 WOODS [24] - 4:12,
upheld [1] - 34:12 whatsoever [1] - 4:18, 17:22, 18:10,
useful [1] - 54:18 48:24 18:15, 29:4, 33:12,
utilized [1] - 41:5 whichever [1] - 33:19, 34:5, 35:22,
23:25 38:8, 50:6, 52:18,
55:7, 55:16, 55:19,
V while.. [1] - 57:20
58:8, 58:15, 58:20,
White [1] - 4:12
WHITE [1] - 2:4 58:23, 59:13, 60:1,
vacation [2] - 5:10, whole [2] - 27:9, 60:20, 62:25
5:24 47:12 Woods [4] - 2:5,
vacuum [2] - 27:18, win [1] - 56:20 4:12, 29:3, 50:5
28:3 wisdom [6] - 40:1, word [1] - 36:12
variety [1] - 19:11 42:6, 43:23, 48:5, wording [2] - 44:2,
various [1] - 38:11 48:7, 48:9 44:4
vehicle [1] - 59:23 wish [2] - 19:15, words [3] - 23:8,
versus [1] - 4:4 23:19 41:18, 53:10
videotaped [1] - witness [24] - 9:24, workable [1] - 17:13
58:22 13:2, 13:11, 13:12, works [3] - 34:9,
view [1] - 18:16 13:15, 13:16, 13:17, 58:14, 60:25
viewpoint [1] - 51:15 13:21, 14:7, 18:1, worthy [1] - 56:21
views [1] - 13:3 34:25, 39:21, 40:2, written [2] - 55:3,
violate [2] - 6:2, 57:19, 57:20, 57:21, 62:15
50:21 58:14, 58:25, 59:2,
violation [4] - 29:8, 59:10, 59:16, 59:25, Y
29:21, 49:24, 50:18 62:9
violations [2] - witness's [2] - 13:8,
Yamika [2] - 44:7,
29:19, 30:4 15:14
44:8
volunteered [1] - witnesses [41] -
year [2] - 21:14,
13:14 4:23, 8:7, 12:6, 12:8,
48:24
vote [1] - 36:14 12:25, 13:24, 14:14,
years [2] - 31:19,
14:21, 14:24, 15:9,
34:14
15:12, 15:16, 16:9,
York [2] - 46:12,

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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 04-08425-VAP (Ex) Date: July 1, 2010

Title: LOG CABIN REPUBLICANS, a non-profit corporation -v- UNITED


STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF
DEFENSE, in his official capacity
================================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE

Marva Dillard None Present


Courtroom Deputy Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR


PLAINTIFFS: DEFENDANTS:

None None

PROCEEDINGS: MINUTE ORDER GRANTING IN PART AND DENYING


DEFENDANTS' MOTIONS IN LIMINE (IN CHAMBERS)
[Motions filed June 18, 2010 (Docket Nos. 178, 179 &
180)]

Defendants United States of America and Secretary of Defense Robert Gates


("Defendants") filed three Motions in Limine on June 18, 2010: "To Exclude Expert
Testimony," "To Exclude Certain of Plaintiff's Proposed Exhibits," and "To Exclude
Lay Witness Testimony." Plaintiff Log Cabin Republicans ("Plaintiff") filed timely
opposition to each motion, and Defendants filed replies. Having reviewed and
considered all papers filed in support of and in opposition to the motions, and
having heard the arguments advanced by counsel at the hearing conducted at the

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CV 04-08425-VAP (Ex)
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

Motion in Limine to Exclude Expert Testimony


Defendants seek to exclude all testimony from the seven persons designated
by Plaintiff to testify as expert witnesses at trial. Defendants argue Federal Rules of
Evidence 402 and 702 bar the proposed testimony, as it is neither relevant nor
reliable. In the alternative, Defendants contend Plaintiff should only be allowed to
call one expert witness per topic as the proposed testimony will otherwise be
unnecessarily cumulative.

Defendants' argument is based in part on their mischaracterization of the


witnesses' prior testimony in this case. For example, they argue that "[t]he primary
opinion Dr Korb offers is that DADT is unconstitutional." (Mot. at 2.) Although
defense counsel asked Dr. Korb his opinion regarding the constitutionality of the
statute, he did not testify that he was retained in order to opine on this subject.

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.

Defendants' objections to the methods employed by the proposed witnesses


are not well-taken either. Qualified expert witnesses with training in the fields of law,

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."

Finally, Defendants contend that no expert testimony should be permitted in


this trial because Plaintiff's challenge to DADT is a facial one. It cites Goldman v.
Weinberger, 475 U.S. 503 (1986), in support of this contention, but in that case,
expert testimony on the desirability of religious exceptions to the military dress code.
Id. at 509. This argument also overlooks the clear authority of Lawrence v. Texas,
539 U.S. 558 (2003), where the Supreme Court went beyond the legislative history
of the Texas statute under examination.

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.

Motion in Limine to Exclude Lay Witnesses


Defendants seek to bar the testimony of 12 of the 14 lay witnesses Plaintiff has
designated to testify at the court trial in this case.

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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MINUTE ORDER of July 1, 2010

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.

To the extent this Motion is based on Defendants' contention that such


evidence is barred in a case mounting a facial challenge to a statute or regulation,
that argument is rejected for the reasons set forth on the record at the hearing and
for the reasons set forth above.

Motion in Limine to Exclude "Certain of Plaintiff's Exhibits"


Finally, Defendants move to exclude (1) "documents that were created by
groups or individuals who actively advocate for the repeal of DADT"; (2) "articles
from newspapers, magazines, and blogs, unofficial transcripts from television
programs," etc.; (3) "documents created by government contractors" (4) "documents
not previously disclosed to defendants and which, in large part, relate to the
particular facts and circumstances of individual service members who were
discharged under DADT"; and "the remainder of [Plaintiff's] exhibits, such as, among
other things, LCR’s experts’ reports, email exchanges by non-parties, non-party
letters, articles, and other documents that do not fall within the other four
categories." (Mot. at 3.) In other words, although entitled as one to exclude
"certain" exhibits, Defendants actually move to exclude all of Plaintiff's proposed trial
exhibits.

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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.

To the extent Defendants' Motion challenges such materials as polling


materials, those objections may be well-taken and should be raised during this non-
jury trial.

The objections directed to the nondisclosure of exhibits designated by Plaintiff


appear to be meritless, for the most part. As Plaintiff correctly points out, most of
those exhibits were published by, prepared by, or in the custody of the Government,
which cannot fairly complain of their admission at trial. To the extent the defense is
objecting on the basis of relevance, those objections will be taken up during this
bench trial.

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
2
3
4
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
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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1 Witt2 standard to Plaintiff's substantive due process


2 claim." (Docket No. 170 at 26:26–27:2.) Each side's
3 Supplemental Brief was filed timely. Having denied
4 Defendants' Motion to the extent it was based on
5 Plaintiff's standing, the Court now addresses the merits
6 of Defendants' Motion.
7
8 II. LEGAL STANDARD
9 A motion for summary judgment shall be granted when
10 there is no genuine issue as to any material fact and the
11 moving party is entitled to judgment as a matter of law.
12 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
13 477 U.S. 242, 247–48 (1986). The moving party must show
14 that "under the governing law, there can be but one
15 reasonable conclusion as to the verdict." Anderson, 477
16 U.S. at 250.
17
18 Generally, the burden is on the moving party to
19 demonstrate that it is entitled to summary judgment.
20 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998);
21 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707
22 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears
23 the initial burden of identifying the elements of the
24 claim or defense and evidence that it believes
25
26
27 2
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir.
28 2008).
3

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1 demonstrates the absence of an issue of material fact.


2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3
4 Where the non-moving party has the burden at trial,
5 however, the moving party need not produce evidence
6 negating or disproving every essential element of the
7 non-moving party's case. Id. at 325. Instead, the
8 moving party's burden is met by pointing out that there
9 is an absence of evidence supporting the non-moving
10 party's case. Id. The burden then shifts to the non-
11 moving party to show that there is a genuine issue of
12 material fact that must be resolved at trial. Fed. R.
13 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477
14 U.S. at 256. The non-moving party must make an
15 affirmative showing on all matters placed in issue by the
16 motion as to which it has the burden of proof at trial.
17 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See
18 also William W. Schwarzer, A. Wallace Tashima & James M.
19 Wagstaffe, Federal Civil Procedure Before Trial § 14:144
20 (2010). A defendant has the burden of proof at trial
21 with respect to any affirmative defense. Payan v.
22 Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122
23 (9th Cir. 2007).
24
25 A genuine issue of material fact will exist "if the
26 evidence is such that a reasonable jury could return a
27 verdict for the nonmoving party." Anderson, 477 U.S. at
28
4

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1 248. In ruling on a motion for summary judgment, the


2 Court construes the evidence in the light most favorable
3 to the non-moving party. Barlow v. Ground, 943 F.2d
4 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac.
5 Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir.
6 1987).
7
8 III. DISCUSSION
9 In its June 9, 2009 Order Granting in Part and
10 Denying in Part Defendants' Motion to Dismiss Case
11 ("Motion to Dismiss Order" or "June 9, 2009 Order"), the
12 Court denied Defendants' motion to dismiss as to
13 Plaintiff's substantive due process claim and its First
14 Amendment claim to the extent it is based on Defendants'
15 use of service members' statements for purposes other
16 than admissions of propensity to engage in homosexual
17 acts, and granted Defendants' motion to dismiss as to
18 Plaintiff's equal protection claim and its First
19 Amendment claim to the extent it is based on Defendants'
20 use of statements as admissions. Thus, Plaintiff's
21 remaining claims allege violation of substantive due
22 process and of the First Amendment. Defendants argue
23 they are entitled to summary judgment on each of these
24 claims. The Court addresses each separately.
25
26
27
28
5

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1 A. Substantive Due Process


2 1. Standard of Review
3 Before reaching the merits of Defendants' Motion, the
4 Court must first resolve the standard of review
5 applicable to the DADT Policy, which the parties dispute.
6 Plaintiff maintains the applicable standard of review is
7 that announced by the Ninth Circuit in Witt, i.e., in
8 order for the DADT Policy to survive constitutional
9 scrutiny, Defendants "must advance an important
10 governmental interest, the intrusion must significantly
11 further that interest, and the intrusion must be
12 necessary to further that interest." Id. at 819.
13
14 Defendants argue the DADT Policy need only survive
15 rational basis review, i.e., it is "rationally related to
16 a legitimate governmental purpose." Kadrmas v. Dickinson
17 Pub. Sch., 487 U.S. 450, 458 (1988); Matsuda v. City &
18 County of Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008).
19 For the reasons discussed below, the Court concludes that
20 the Witt standard of review applies to Plaintiff's
21 challenge to the DADT Policy.
22
23 Generally, courts apply rational basis review to
24 state actions which "neither utilize[] a suspect
25 classification nor draw[] distinctions among individuals
26 that implicate fundamental rights." Matsuda, 512 F.3d at
27 1156 (quoting United States v. Salerno, 481 U.S. 739, 746
28
6

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1 (1987)). Conversely, courts employ a heightened standard


2 of review where state actions implicate fundamental
3 rights.
4
5 In Witt, the Ninth Circuit recognized that the DADT
6 Policy implicates the fundamental rights recognized by
7 the Supreme Court in Lawrence v. Texas, 539 U.S. 558
8 (2003). See Witt, 527 F.3d at 819. While declining to
9 place its standard of review within the traditional
10 framework of rational basis review, intermediate
11 scrutiny, and strict scrutiny, and expressly declining to
12 apply strict scrutiny, the Ninth Circuit held the DADT
13 Policy constitutes an intrusion "upon the personal and
14 private lives of homosexuals, in a manner that implicates
15 the rights identified in Lawrence," and is subject to
16 heightened scrutiny. Id.
17
18 Defendants attempt to avoid application of a
19 heightened scrutiny standard by arguing that the Witt
20 court limited application of its standard to as-applied
21 challenges. (Defs.' Supp. Br. at 7:16–9:6.) Although
22 the Witt court stated that "this heightened scrutiny
23 analysis is as-applied rather than facial," see Witt, 527
24 F.3d at 819, it did not address what standard of review
25 would apply to a facial challenge to the DADT Policy.
26
27
28
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1 Defendants further rely on authority reflecting the


2 "disfavored" status of facial challenges, including
3 Washington State Grange v. Washington State Republican
4 Party, 552 U.S. 442, 450 (2008). This authority,
5 however, does not establish that the standard of review
6 depends on the nature of the challenge.3
7
8 To the contrary, the level of scrutiny the Court
9 applies depends not on the nature of the legal challenge,
10 but rather on the nature of the right implicated. See,
11 e.g., Reno v. Flores, 507 U.S. 292, 302 (1993)
12 (substantive due process "forbids the government to
13 infringe certain 'fundamental' liberty interests at all .
14 . . unless the infringement is narrowly tailored to serve
15 a compelling state interest.") (emphasis in original);
16 P.O.P.S. v. Gardner, 998 F.2d 764, 767–68 (9th Cir. 1993)
17 (strict scrutiny triggered by impairment of fundamental
18 rights). Where state action implicates a fundamental
19 right, that action is subject to heightened scrutiny
20 regardless of whether the nature of the challenge is
21 facial or as-applied. The Supreme Court has applied
22 heightened scrutiny to facial challenges where
23
24 3
Indeed, the consequence of the "disfavored" status
25 of facial challenges is not a varying standard of review,
but rather the requirement that the challenger prove that
26 no circumstances exist under which the statute could be
constitutionally applied. See Salerno, 481 U.S. at 745;
27 Wash. State Grange, 552 U.S. at 457;; S.D. Myers, Inc. v.
City & County of San Francisco, 253 F.3d 461, 467 (9th
28 Cir. 2001).
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1 fundamental rights were implicated. See Planned


2 Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845, 877–78
3 (1992) (applying intermediate scrutiny to facial
4 challenge).
5
6 In Witt, the Ninth Circuit recognized that the DADT
7 Policy implicates fundamental rights protected by
8 Lawrence. See Witt, 527 F.3d at 819. Although it noted
9 the as-applied nature of the plaintiff's challenge, the
10 Witt court did not expressly limit its holding to as-
11 applied cases. Given the centrality of its recognition
12 of the fundamental rights implicated by the DADT Policy,
13 Witt's heightened standard of review applies in this
14 action challenging the Policy on a facial basis. To the
15 extent the June 9, 2009 Order on Defendants' motion to
16 dismiss Plaintiff's First Amended Complaint indicated
17 otherwise, the Court, having allowed the parties to
18 submit additional briefing on the issue, now finds the
19 standard announced by the Ninth Circuit in Witt governs
20 here.
21
22 2. Defendants Fail to Show They Are Entitled to
23 Summary Judgment under the Witt Standard
24 Despite the order granting leave to file a
25 supplemental brief addressing why they are entitled to
26 summary judgment under the Witt standard, Defendants have
27 failed to offer any argument why the DADT Policy survives
28
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1 under a heightened level of scrutiny. Instead,


2 Defendants again have sought a stay of this action,4
3 (Defs.' Supp. Br. at 3–6), argued that rational basis is
4 the appropriate standard of review, (Defs.' Supp. Br. at
5 6–9), argued in the alternative that the standard of
6 review set forth in Beller v. Middendorf, 632 F.2d 788
7 (9th Cir. 1980) applies,5 (Defs.' Supp. Br. at 9–12),
8 argued that Plaintiff's facial challenge cannot survive,6
9 (Defs.' Supp. Br. at 12), and argued that Plaintiff is
10 not entitled to rely on evidence outside of the DADT
11 Policy itself and the relevant legislative history in
12 challenging the DADT Policy.7 (Defs.' Supp. Br. 13–15).
13
4
The Court addresses Defendants' request for a stay
14 separately. (See infra, Section III.C.)
15 5
This argument fails, as it ignores the Witt court's
16 819 ("Wedisavowal
express of Beller's holding. Witt, 527 F.3d at
also conclude that our holding in Beller, 632
17 F.2d 788, that a predecessor policy to DADT survived
heightened scrutiny under the Due Process Clause, is no
18 longer good law."), 820 ("Beller's heightened scrutiny
analysis and holding therefore have been effectively
19 overruled by intervening Supreme Court authority.").
6
20 Defendants maintain that Plaintiff has failed to
meet its burden of showing there are no circumstances in
21 which the DADT Policy could be constitutionally applied.
Although Plaintiff ultimately may bear the burden of
22 proof on this issue, at the summary judgment stage the
burden is on Defendants. Defendants have failed to
23 identify any instance in which the DADT Policy could
constitutionally be applied, and thus fail to meet their
24 burden of showing they are entitled to summary judgment
on this basis.
25 7
This argument also fails. The only authorities
26 Defendants rely on in support of this proposition are FCC
v. Beach Commc'n, Inc., 508 U.S. 307 (1993) and Goldman
27 v. Weinberger, 475 U.S. 503 (1986). Beach, however,
involved rational basis review, not heightened scrutiny.
28 (continued...)
10

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1 As the moving party, Defendants bear the burden of


2 showing they are entitled to summary judgment. As they
3 failed to address why they are entitled to summary
4 judgment under the Witt standard of review, Defendants do
5 not meet their burden of showing they are entitled to
6 summary judgment.
7
8 B. First Amendment
9 Defendants argue Plaintiff's First Amendment
10 challenge fails because "the DADT Policy and testimony
11 establish that service members are not and have not been
12 discharged for statements other than to show a propensity
13 or intent to engage in homosexual acts." (Mot. at 22.)
14 Specifically, Defendants argue Plaintiff cannot sustain
15 its First Amendment claim because: (1) John Alexander
16 Nicholson was discharged on the basis of his statement
17 that he is "gay," which was used as evidence of his
18 propensity to engage in homosexual acts and which he
19 chose not to rebut; and (2) Lt. Col. Doe has not been
20 discharged from the military and accordingly "no
21 statement has been used as the basis to discharge Doe
22
23
24 7
(...continued)
25 Goldman related to a military regulation, not an act of
Congress. Furthermore, the regulation at issue applied
26 only to the dress codes of on-duty service members. The
DADT Policy is far broader in its reach and affects
27 wholly different substantive rights; thus it is not
entitled to the same degree of deference as a uniform
28 dress regulation.
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1 under the challenged statute or otherwise."8 (Mot. at


2 24.)
3
4 Defendants' argument regarding the use of statements
5 as admissions under the DADT Policy is unnecessary
6 because the Court already addressed that issue in its
7 June 9, 2009 Order. The Court dismissed Plaintiff's
8 First Amendment claim to the extent it related to use of
9 a service member's statement regarding homosexuality as
10 evidence of his or her propensity to engage in homosexual
11 acts. (June 9, 2009 Order at 21–22.) The Court based
12 its conclusion on the Ninth Circuit's holding in Holmes
13 v. California Army National Guard, 124 F.3d 1126 (9th
14 Cir. 1997) that use of a service member's statement under
15 the DADT Policy as an admission of conduct does not
16 violate the First Amendment. See id. at 1136. The
17 Court, however, denied Defendants' motion to dismiss
18 Plaintiff's First Amendment claim insofar as it related
19 to speech not used as an admission of a propensity to
20 engage in homosexual acts. (See June 9, 2009 Order at
21 23–24.)
22
23
24
25
8
26 Defendants appear to read the Court's June 9, 2009
Order as limiting Plaintiff's First Amendment claim to
27 statements related to discharge. (See Mot. at 22–23.)
The Court's June 9, 2009 Order, however, contains no such
28 limitation.
12

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1 Defendants argue discovery has revealed that


2 Nicholson was discharged because of his statement that he
3 is "gay," which created a rebuttable presumption of his
4 likelihood to engage in "homosexual acts." (Mot. at 23.)
5 Nicholson, Defendants argue, was discharged because his
6 failure to rebut this presumption constituted an
7 admission. (Id.)
8
9 According to Plaintiff, the DADT policy is "circular"
10 because it "[p]rovides that sexual orientation is
11 considered a personal and private matter," yet "defines
12 'conduct' to include a statement by a member that
13 demonstrates a propensity or intent to engage in
14 homosexual acts." (Opp'n at 21 (internal citations
15 omitted) (emphasis in original).) "In other words, the
16 fact of one's status as a homosexual is supposedly not a
17 basis for discharge but the statement of that permissible
18 status is." (Opp'n at 22 (emphasis in original).) "Not
19 surprisingly, given this framework, the vast majority of
20 discharges under DADT are for 'statements,' not conduct."
21 (Id. (emphasis in original).)
22
23 The Ninth Circuit considered and rejected this very
24 reasoning in Holmes, which remains binding precedent on
25 this issue. See Holmes, 124 F.3d at 1134–36; Hensala v.
26 Dep't of Air Force, 343 F.3d 951, 957–59 (9th Cir. 2003)
27
28
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1 (endorsing Holmes' First Amendment analysis of the DADT


2 Policy).
3
4 In Holmes, two service members were discharged after
5 they made statements about their homosexuality and failed
6 to present evidence to rebut the presumption they engaged
7 in or intended to engage in homosexual acts. 124 F.3d at
8 1129–32. Though the plaintiffs presented evidence of
9 their excellent service records, and one denied engaging
10 in homosexual acts with fellow service members, or with
11 any person at all during the performance of military
12 duty, the court determined the plaintiffs failed to rebut
13 the presumption of a propensity or intent to engage in
14 homosexual acts:
15 [U]nder the statements prong of the "don't
ask/don't tell" policy, service members are not
16 discharged for having a homosexual "status." The
discharges result because of actual conduct or a
17 propensity for conduct that is prohibited. [The
plaintiffs'] respective declarations of homosexual
18 orientation did not automatically lead to their
discharge; rather, their declaration was coupled
19 with their tacit acceptance of the link between
their orientation and their conduct, as evidenced
20 by their failure to show that they did not engage
in, attempt to engage in, have a propensity to
21 engage in, or intend to engage in homosexual acts.
22
Id. at 1135.
23
24
As noted above, the Court already dismissed
25
Plaintiff's claim to the extent it sought to challenge
26
the use of statements as evidence of a propensity to
27
engage in conduct. (June 9, 2009 Order at 23.) In other
28
14

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1 words, Plaintiff's First Amendment claim fails to the


2 extent it is premised upon service members' discharges
3 for making statements about their homosexuality and
4 failing to present evidence to rebut the presumption that
5 they engaged in or intended to engage in homosexual acts.
6 See Holmes, 124 F.3d at 1129.
7
8 Next, Defendants argue Plaintiff's First Amendment
9 claim fails because Lt. Col. Doe is still serving in the
10 military and has not been discharged on the basis of
11 speech. While Lt. Col. Doe indeed has not been
12 discharged under the DADT Policy, Plaintiff alleges the
13 DADT Policy prevents Doe and other LCR members from
14 "communicating the core of [their] emotions and identity
15 to others", (see Opp'n at 23; Doe Decl. ¶ 7), and chills
16 "public, off-base" speech such as participating in
17 political rallies for gay rights and denouncing "biased
18 comments about homosexuals." (Opp'n at 24.) Plaintiff
19 also contends the DADT Policy chills service members'
20 First Amendment right to petition the government for a
21 redress of grievances because members like Doe are unable
22 to identify themselves publicly as members of LCR or to
23 testify at trial for fear they will be discharged. (Id.
24 at 23.) Thus, according to Plaintiff, the DADT Policy
25 chills the constitutionally protected speech of service
26 members who have not been discharged.
27
28
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1 Plaintiff may succeed in its facial challenge (see


2 Opp'n at 1, 24) in one of two different methods: by
3 showing the law (1) "is unconstitutional in every
4 conceivable application,"9 or (2) "seeks to prohibit such
5 a broad range of protected conduct that it is
6 unconstitutionally 'overbroad.'" Members of the City
7 Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
8 789, 796 (1984). The Ninth Circuit has held that "a law
9 is void on its face if it sweeps within its ambit not
10 solely activity that is subject to governmental control,
11 but also includes within its prohibition the practice of
12 a protected constitutional right." Clark v. City of Los
13 Angeles, 650 F.2d 1033, 1039 (9th Cir. 1981) ("The
14 overbreadth doctrine has been applied almost exclusively
15 in the areas of [F]irst [A]mendment expressive or
16 associational rights.") (citing Broadrick v. Oklahoma,
17 413 U.S. 601, 612 (1973); Dombrowski v. Pfister, 380 U.S.
18 479, 486 (1965)).
19
20 Under the "overbreadth" doctrine, a plaintiff may
21 challenge an overly broad statute, facially, by showing
22 that it may inhibit the First Amendment rights of
23 individuals who are not before the court. See, e.g.,
24 Vincent, 466 U.S. at 798-99; Village of Schaumburg v.
25
26 9
Plaintiff does not make this argument, which would
27 be foreclosed in light of the Court's June 9, 2009 Order,
holding the use of service members' statements as
28 admissions constitutional under Holmes.
16

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1 Citizens for a Better Env't, 444 U.S. 620, 634 (1980).


2 That is, a plaintiff may challenge a statute on the
3 ground that it is unconstitutional as applied to someone
4 else, even if her own conduct is not protected under the
5 First Amendment. See Foti v. City of Menlo Park, 146
6 F.3d 629, 635 (9th Cir. 1998) (citing Vincent, 466 U.S.
7 at 797); Forsyth County v. Nationalist Movement, 505 U.S.
8 123, 129 (1992) (overbreadth doctrine is based on the
9 observation that "the very existence of some broadly
10 written laws has the potential to chill the expressive
11 activity of others not before the court"); see also Lind
12 v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994)
13 (overbreadth doctrine is designed to avert a potential
14 chilling effect on speech). Of course, a plaintiff whose
15 conduct is protected may also bring a facial challenge to
16 a statute that she contends is unconstitutional, without
17 having to employ the overbreadth doctrine, by arguing
18 that the statute could never be applied in a valid manner
19 and would chill the speech of others. See Foti, 146 F.3d
20 at 635; Nunez v. City of San Diego, 114 F.3d 935, 949
21 (9th Cir. 1997); Tucker v. State of California Dep't of
22 Educ., 97 F.3d 1204, 1217 n.10 (9th Cir. 1996).
23
24 Defendants' argument that they are entitled to
25 summary judgment on the basis of facts related to
26 Nicholson and Doe fails, because Plaintiff is not limited
27 to pursuing its members' individual claims. Rather,
28
17

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1 Plaintiff may challenge the DADT Policy by showing that


2 it has the potential to chill the expressive activity of
3 others not before the court. See Vincent, 466 U.S. at
4 796–97.
5
6 A litigant making a facial challenge to a statute on
7 First Amendment grounds bears a "heavy burden" and "must
8 demonstrate a substantial risk that the application of
9 the [statutory] provision will lead to the suppression of
10 speech." Nat'l Endowment for the Arts v. Finley, 524
11 U.S. 569, 580 (1998) (citing Broadrick, 413 U.S. at 615).
12 Here, as Plaintiff bears the burden at trial, Defendants
13 need not produce evidence negating or disproving every
14 essential element of Plaintiff's claim, but must point
15 out that there is an absence of evidence supporting
16 Plaintiff's claim. See Celotex, 477 U.S. at 325.
17 Defendants fail to address Plaintiff's overbreadth claim
18 whatsoever, and consequently have not met their burden of
19 showing they are entitled to summary judgment on
20 Plaintiff's First Amendment claim.
21
22 C. A Stay of This Action Is Not Warranted
23 In their Supplemental Brief, Defendants again seek a
24 stay of this action.10 Defendants appear to advance three
25
10
26 Defendants use the vehicle of their Supplemental
Brief to seek a stay of this action despite having leave
27 to file this brief "for the sole purpose of discussing
application of the Witt standard to Plaintiff's
28 (continued...)
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1 arguments in support of this request: (1) a stay would be


2 in the interests of all parties as it may moot the need
3 for a trial; (2) a stay would permit the Court to avoid
4 reaching constitutional issues; and (3) the Court should
5 defer to the other branches of government on questions
6 involving the military. For the reasons set forth below,
7 the Court finds none of these arguments persuasive, and
8 declines to stay this action.
9
10 1. A Stay Is Unlikely to Moot This Action
11 Defendants argue that a stay is appropriate because a
12 measure to repeal the DADT Policy currently is pending in
13 both houses of Congress. Defendants contend that "the
14 Court should defer ruling on LCR's facial constitutional
15 challenge to allow the political branches to properly
16 consider whether the implementation of a repeal would be
17 consistent with the standards of military readiness,
18 military effectiveness, and unit cohesion." (Defs.'
19 Supp. Br. at 6:17–20.)
20
21 A stay of this action on the basis of this pending
22 legislation would be unjustified for at least two
23 reasons. First, at this time it is speculative to assert
24 that the measures in question, section 591 of Senate Bill
25
26 10
(...continued)
27 substantive due process claim." (Docket No. 170 at
26:26–27:2.) The Court nevertheless considers the merits
28 of Defendants' request.
19

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1 3454, and section 536 of H.R. 5136, will ultimately be


2 included as part of the final defense authorization bill
3 that emerges from Congress.
4
5 Second, even if these measures were to become law,
6 they still would not repeal the DADT Policy immediately.
7 As Defendants concede, ultimate repeal depends on several
8 contingencies. First, the Secretary of Defense must
9 complete a "Comprehensive Review on the Implementation of
10 a Repeal of 10 U.S.C. 654" (the "Review") initiated on
11 March 2, 2010. The currently contemplated repeal
12 measures provide no deadline for completion of the
13 Review; thus there is no means for the Court to determine
14 when this first condition precedent may occur, if ever.
15 Second, once the Review has been completed, the President
16 must transmit a certification signed by himself, the
17 Secretary of Defense, and the Chairman of the Joint
18 Chiefs of Staff stating that they have: (1) considered
19 the recommendations and proposals of the Review; (2)
20 prepared necessary policies and regulations for repeal of
21 the DADT Policy; and (3) determined that implementation
22 of those policies and regulations is "consistent with the
23 standards of military readiness, military effectiveness,
24 unit cohesion, and recruiting and retention of the Armed
25 Forces." S. 3454, 111th Cong. § 591(b)(2)(C) (2010);
26 H.R. 5136, 111th Cong. § 536(b)(2)(C) (2010). Again, the
27 measure provides no deadline for the President to
28
20

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1 transmit such a certification, and effectively vests him


2 with discretion to decline to do so.
3
4 In other words, the currently contemplated
5 legislation, were it to become law, would not result in
6 imminent repeal of the DADT Policy. Given the many
7 contingencies involved — including the threshold
8 contingency of Congressional approval — and the lack of
9 clear timelines, any ultimate repeal that may result from
10 this legislation is at this point remote, if not wholly
11 speculative.
12
13 2. The Court Is Not Obligated to Stay This Action
14 to Avoid Constitutional Questions
15 Defendants cite the well-established principle that
16 "courts should not decide constitutional issues if they
17 can reasonably avoid doing so." (Defs.' Supp. Br. at
18 4:8–9.) This is a canon of construction, however. See
19 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105–06
20 (1944) (applying doctrine of avoidance to require courts
21 to await determinations on local law issues before
22 reaching questions of constitutionality). Whether or not
23 to stay a case is a separate matter, one within the
24 Court's discretion. See Mediterranean Enter., Inc. v.
25 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) ("A
26 trial court may, with propriety, find it is efficient for
27 its own docket and the fairest course for the parties to
28
21

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1 enter a stay of an action before it, pending resolution


2 of independent proceedings which bear upon the case.")
3 (quoting Leyva v. Certified Grocers of California, 593
4 F.2d 857, 863–64 (9th Cir. 1979). Here, for the reasons
5 discussed above, the possibility that action by the
6 legislative and executive branches will moot this case is
7 sufficiently remote that a stay of this action is
8 inappropriate.
9
10 3. The Court Is Not Obligated to Defer to the
11 Judgment of the Legislative and Executive
12 Branches
13 Defendants' argument that "Congress, rather than the
14 courts, [should] make decisions regarding the military,"
15 (Defs.' Supp. Br. at 6:9–10), also lacks merit. It is
16 true, as the Supreme Court has recognized, that the
17 military is entitled to a certain degree of deference.
18 See, e.g., North Dakota v. United States, 495 U.S. 423,
19 443 (1990) ("When the Court is confronted with questions
20 relating to military discipline and military operations,
21 we properly defer to the judgment of those who must lead
22 our Armed Forces in battle."). That deference, however,
23 is not unlimited, and must be balanced against the
24 courts' "time-honored and constitutionally mandated roles
25 of reviewing and resolving claims." Hamdi v. Rumsfeld,
26 542 U.S. 507, 535 (2004). This role "does not infringe
27 on the core role of the military." Id. Defendants have
28
22

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1 identified no authority requiring the Court to stay this


2 action on this basis or to refrain from reaching the
3 constitutional questions presented. Accordingly, the
4 Court declines to enter a stay.
5
6 IV. CONCLUSION
7 For the reasons set forth above, the Court DENIES
8 Defendants' Motion.
9
10
11 Dated: July 6, 2010
12 VIRGINIA A. PHILLIPS
United States District Judge
13
14
15
16
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19
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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 Plaintiff Log Cabin Republicans attacks the constitutionality of the


2 statute known as the "Don't Ask, Don't Tell" Act ("the Act" or "the Policy"),
3 found at 10 U.S.C. § 654, and its implementing regulations.1 Plaintiff's
4 challenge is two-fold: it contends the Act violates its members' rights to
5 substantive due process guaranteed by the Fifth Amendment to the United
6 States Constitution, and its members' rights of freedom of speech,
7 association, and to petition the government, guaranteed by the First
8 Amendment.2
9
10 The Court finds Plaintiff Log Cabin Republicans (sometimes referred to
11 in this Order as "Log Cabin," "LCR," or "Plaintiff"), a non-profit corporation,
12 has established standing to bring and maintain this suit on behalf of its
13 members. Additionally, Log Cabin Republicans has demonstrated the Don't
14 Ask, Don't Tell Act, on its face, violates the constitutional rights of its
15 members. Plaintiff is entitled to the relief sought in its First Amended
16 Complaint: a judicial declaration to that effect and a permanent injunction
17 barring further enforcement of the Act.
18
19
20
21
22 1
The Act, described in greater detail below, provides that any member
23 of the U.S. Armed Forces who engages in homosexual conduct is subject to
discharge unless the servicemember is able to demonstrate that he or she
24 has no propensity to engage in "homosexual conduct." Under the Act,
homosexual conduct includes sexual acts with persons of the same sex,
25 admissions that one is homosexual or bisexual, and attempts to marry a
person of the same sex.
26
2
27 The Court dismissed Plaintiff's claim for violation of the Equal
Protection Clause in an Order dated June 9, 2009 ("June 9, 2009, Order").
28 (Doc. No. 83.)
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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).
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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
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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
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1 A. John Nicholson's Standing


2 John Alexander Nicholson, III, enlisted in the United States Army in
3 May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As described in more detail
4 below, he received an honorable discharge on March 22, 2002, pursuant to
5 the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July
6 20, 2010.) Nicholson satisfies all three of the requirements for constitutional
7 standing, i.e., "injury in fact" caused by the defendants (his discharge by
8 Defendants pursuant to the Policy), which is redressable by the relief sought
9 in this lawsuit, as he testified he would rejoin the Army if the policy was no
10 longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.)
11
12 Nicholson first became involved with Log Cabin Republicans in August
13 2005, when he and others embarked on a nationwide speaking tour
14 sponsored by LCR to raise awareness of the movement to repeal the Don't
15 Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.) LCR's
16 national and Georgia state chapter leaders asked Nicholson to join the
17 organization formally after he gave a speech at LCR's national convention on
18 April 28, 2006; he did not pay dues or make a cash contribution at that time,
19 but was told his membership was granted in exchange for his services to the
20 organization. (Trial Tr. 1207:22-1208:25, 1211:25-1212:15, July 21, 2010.)
21 Later he was told his was an honorary membership. (Trial Tr. 1211:10-12,
22 1214:13-15, July 21, 2010.)
23
24 Thus, Nicholson officially joined Log Cabin Republicans on April 28,
25 2006, and has been a member continuously ever since. (Trial Tr. 1208:11-
26 15, 1214:24-1215:17, July 21, 2010.) He testified credibly that he did not
27 complete a paper membership application form that day because he gave the
28
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1 necessary information to an LCR administrative assistant who entered it


2 directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff
3 maintains an electronic database of its membership which lists Nicholson as
4 a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:20-
5 22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered
6 the precise date Log Cabin's Georgia chapter granted him honorary
7 membership because it was the same day he addressed LCR's national
8 convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.)
9
10 The testimony of James Ensley, President of Plaintiff's Georgia chapter
11 since 2006 and a member of LCR's national board of directors since 2008,
12 corroborated Nicholson's testimony regarding the date he became a member
13 of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) Ensley testified that the
14 Georgia chapter conferred honorary membership on Nicholson at the 2006
15 Log Cabin Republicans national convention, in recognition of his
16 "remarkable" efforts on the nationwide speaking tour and on college
17 campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-16,
18 July 13, 2010.) Ensley specifically recalled the date the Georgia chapter
19 conferred honorary membership on Nicholson because Ensley's
20 congressman had arranged a private tour of the White House for him on the
21 morning of April 28, 2006, which was the same day Nicholson addressed the
22 convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to
23 be a candid and credible witness.
24
25 Plaintiff also produced the credible testimony of Terry Hamilton, a 25-
26 year member of Log Cabin Republicans and presently chairman of its
27 national board of directors. (Trial Tr. 33:11-35:22, July 13, 2010.) He verified
28
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1 that the organization's membership records reflected Nicholson's membership


2 status since April 28, 2006, and also that Nicholson regularly attended and
3 spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July
4 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a
5 member of the organization since that date. (Trial Tr. 38:8-39:3, July 13,
6 2010.)
7
8 Thus, at the time Nicholson was conferred honorary membership, he
9 satisfied the requirements for membership under section 2.02 of the Log
10 Cabin Republican Bylaws, which states:
11 Honorary and Special Members: The Board of Directors may
establish other criteria for granting an Honorary Membership to Log
12 Cabin Republicans for individuals who have exhibited a unique or
noteworthy contribution to the Mission of the Corporation or a
13 Special Membership to Log Cabin Republicans for individuals or
entities that have provided assistance to the Corporation.4
14 (Trial Ex. 109.)
15 Accordingly, Log Cabin Republicans has standing through Nicholson,
16 who himself satisfies all the requirements for constitutional standing and has
17 been a member of LCR from the date the First Amended Complaint was filed
18 to the present.
19
20
21 4
Defendants argue Nicholson's honorary membership, pursuant to
22 section 2.02 of the Bylaws, did not confer membership on him because LCR's
Articles of Incorporation refer only to one class of membership. (See Doc.
23 No. 186 [Defs.' Mem. Cont. Fact & Law] at 3-4.) The Court rejected this
argument in its May 27, 2010, Order, noting "Defendants' argument that Mr.
24 Nicholson's honorary membership is insufficient to confer standing on Plaintiff
fails for two reasons . . . . Defendants have not shown that the bylaw at issue
25 actually conflicts with Plaintiff's articles of incorporation . . . . [, and] [t]he
District of Columbia Nonprofit Corporation Act (the 'Corporation Act') provides
26 that a nonprofit corporation shall designate its membership class or classes
and accompanying qualifications 'in the articles of incorporation or the
27 bylaws.' D.C. Code § 29-301.12 (emphasis added)." (May 27, 2010, Order at
24-25.)
28
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1 The Court rejects Defendants' suggestion that LCR "manufactured" its


2 standing for purposes of this lawsuit. (See Doc. No. 188 [Defs.' Proposed
3 Findings of Fact & Conclusions of Law] at 3.) The only authority Defendants
4 cite on this point is Washington Legal Foundation v. Leavitt, 477 F. Supp. 2d
5 202, 211 (D.D.C. 2007), holding the manufacture of standing "weakens" an
6 association's ability to maintain a lawsuit on behalf of its members. The
7 record before the district court in Washington Legal Foundation revealed
8 facts not present here, however. As that court explained, the Washington
9 Legal Foundation's board of directors explicitly decided to bring suit, and then
10 set about to find and recruit persons who would confer standing on it. By
11 contrast, Martin Meekins, a member of LCR's national board of directors,
12 testified that the initiative for filing this lawsuit came from the rank and file of
13 the organization; Meekins then interviewed members regarding the viability of
14 a lawsuit and to determine if they met the requirements to confer standing on
15 the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:11-
16 707:12, July 16, 2010.)
17
18 Although not explicitly argued, Defendants' only factual basis for
19 contending that Log Cabin Republicans manufactured standing appears to be
20 the identity of dates on which John Nicholson became an LCR member and
21 the First Amended Complaint was filed. The Court found credible, however,
22 the testimony of the several witnesses who testified about the reason LCR
23 bestowed an honorary membership on Nicholson that day, as explained
24 above.
25
26
27
28
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1 Washington Legal Foundation is, of course, not binding authority on this


2 Court, but to the extent it provides guidance, it only holds that "manufacture"
3 of standing weakens but does not destroy an association's ability to maintain
4 its suit. Furthermore, there is no evidence here that LCR manufactured
5 standing, so Washington Legal Foundation is factually dissimilar.
6
7 B. John Doe's Standing
8 For the reasons set forth in its May 27, 2010, Order, the Court looks to
9 the filing date of the First Amended Complaint to determine standing. (See
10 May 27, 2010, Order at 15.) Nevertheless, even accepting Defendants'
11 contention that standing in this case must be established as of October 12,
12 2004, when the original Complaint was filed, Log Cabin Republicans satisfies
13 that requirement through its member John Doe.
14
15 John Doe serves as a lieutenant colonel in the United States Army
16 Reserve. He joined Log Cabin Republicans in early September 2004 by
17 completing an application form (using a pseudonym) and paying annual dues
18 through Martin Meekins, then a member of Plaintiff's national board of
19 directors. Meekins accepted the application form and dues payment from
20 Doe and forwarded them to LCR's national headquarters. Doe arranged to
21 pay his membership dues in this manner because he feared he would be
22 discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if
23 he joined the organization openly, using his true name. (Trial Ex. 38.)
24
25
26
27
28
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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
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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
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1 First, there was conflicting evidence regarding the effect of a member's


2 nonpayment of dues. James Ensley testified that when a member failed to
3 renew his or her annual dues payment, the Log Cabin Republicans viewed
4 the member as a "former" or "inactive" member, but the name would not be
5 stricken from LCR's membership rolls or electronic database simply because
6 of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry
7 Hamilton, another member of the national board of directors, testified that a
8 member who failed to renew his membership timely no longer would be
9 considered a member, but his testimony did not contradict Ensley's testimony
10 regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13,
11 2010.)
12
13 Nevertheless, neither Log Cabin Republicans nor Doe lost the
14 necessary personal stake in this litigation merely because Doe did not pay
15 dues after the initial year. Doe still served in the Army Reserve and still was
16 subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a
17 personal stake in the outcome of the case, and his injury – his susceptibility
18 to discharge under the Act – continued to be redressable by favorable
19 resolution of the lawsuit.
20
21 Nor is this a case where standing has been lost because of a change in
22 circumstances rendering the subject matter of the case moot: the Act has not
23 been repealed and the challenged policy is still in effect; Doe is still serving
24 and subject to discharge under it;5 Nicholson already has been discharged
25
26
5
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 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
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1 III. EVIDENCE PRESENTED AT TRIAL


2 A. Plaintiff's Burden on a Facial Challenge
3 In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court
4 held a plaintiff challenging the validity of a law on its face must establish that
5 "no set of circumstances exists under which the Act would be valid." Id. at
6 745. The defendants in Salerno were detained pending trial under the
7 provisions of the Bail Reform Act; they challenged the Act, on its face,
8 claiming it unconstitutionally violated the Fifth and Eighth Amendments.
9 More recently, in Washington State Grange v. Washington State Republican
10 Party, 552 U.S. 442 (2008), the Supreme Court noted the criticisms leveled at
11 the Salerno standard and recognized an alternative the test as follows: "a
12 facial challenge must fail where the statute has a 'plainly legitimate sweep.'"
13 Id. at 449 (citing Washington v. Glucksberg, 521 U.S. 702, 739-740 & n.7
14 (1997) (Stevens, J., concurring)); see also United States v. Stevens, 559 U.S.
15 ___, ___, 130 S. Ct. 1577, 1587 (2010) (citing Glucksberg and noting the
16 existence of two standards for facial challenges outside the First Amendment
17 context).
18
19 The Court considers the evidence presented at trial in this facial
20 challenge not for the purpose of considering any particular application of the
21 Don't Ask, Don't Tell Act, but rather for the permissible purposes described in
22 Section III(B) below. (See infra Section III(B).) Plaintiff's evidence, as
23 described below, amply illustrates that the Act does not have a "plainly
24 legitimate sweep." Rather, Plaintiff has proven that the Act captures within its
25 overreaching grasp such activities as private correspondence between
26 servicemembers and their family members and friends, and conversations
27 between servicemembers about their daily off-duty activities. Plaintiff also
28
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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
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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 otherwise constitutional statute on the basis of an alleged illicit legislative


2 motive." Id.
3
4 In part, the O'Brien Court founded its reasoning on the difficulty of
5 discerning a unified legislative "motive" underlying any given enactment:
6 "What motivates one legislator to make a speech about a statute is not
7 necessarily what motivates scores of others to enact it . . . ." Id. at 384.
8 Thus, O'Brien instructs that when "a statute . . . is, under well-settled criteria,
9 constitutional on its face," a court should not void the law based on
10 statements by individual legislators. Id.
11
12 O'Brien does not stand for the proposition urged by Defendants,
13 however, that when deciding whether a challenged law "is, under well-settled
14 criteria, constitutional on its face," this Court should limit itself to examining
15 only the statute's legislative history. In fact, in the O'Brien decision the
16 Supreme Court specifically pointed to two cases, Grosjean v. American Press
17 Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot, 364 U.S. 339 (1960),
18 noting that they "stand, not for the proposition that legislative motive is a
19 proper basis for declaring a statute unconstitutional, but that the inevitable
20 effect of a statute on its face may render it unconstitutional." O'Brien, 391
21 U.S. at 394 (emphasis added). In both Grosjean and Gomillion, the Court
22 noted, the purpose of the law was irrelevant "because [of] the inevitable effect
23 – the necessary scope and operation." Id. at 385 (citations omitted).
24 Therefore, under these authorities, the court may admit and examine
25 evidence to determine the "scope and operation" of a challenged statute;
26 nothing in O'Brien, Grosjean, or Gomillion limits the Court's discretion to
27 consider evidence beyond the legislative history.
28
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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
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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
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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
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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 After Almy completed his third deployment to Iraq in January 2005,


2 someone began using the same computer Almy had used while deployed;
3 that person searched Major Almy's private electronic mail message ("e-mail")
4 files without his knowledge or permission. The search included a folder of
5 Major Almy's personal e-mail messages,8 sent to his friends and family
6 members, and read messages, including at least one message to a man
7 discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16,
8 2010.) Almy thought the privacy of his messages was protected; he was very
9 knowledgeable about the military's policy regarding the privacy of e-mail
10 accounts because of his responsibility for information systems. (Trial Tr.
11 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He knew, for example,
12 that according to Air Force policy, e-mail accounts could not be searched
13 unless authorized by proper legal authority or a squadron commander or
14 higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16,
15 2010.)
16
17 Almy only learned his private e-mail had been searched when he
18 returned to Germany and his commanding officer confronted him with the
19 messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit
20 he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At
21 the end of the meeting, Almy was relieved of his duties, and his commanding
22 officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15,
23 July 16, 2010.) Almy had attained one of the highest level security
24
25 8
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.)
22

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1 clearances available for military personnel, "top secret SCI9 clearance;"


2 approximately three months after Almy was relieved of his duties, his security
3 clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.)
4
5 Initially, Almy contested his discharge, as he felt he had not violated the
6 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military
7 he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's
8 understanding was that his discharge was based solely on the e-mail
9 discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.)
10 Accordingly, Almy invoked his right to an administrative hearing and solicited
11 letters of support from those who had worked with him in the Air Force. (Trial
12 Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such
13 a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.) Colonel Paul
14 Trahan, US Army (Ret.), wrote: "My view is that Major Almy has been, and
15 will continue to be an excellent officer. As a former Commander and
16 Inspector General I am well aware of the specifics of the Homosexual
17 Conduct Policy. To my knowledge, Major Almy is not in violation of any of
18 the provisions of the policy. To the contrary, it appears that in prosecuting
19 the case against Major Almy, the USAF may have violated the 'Don't Ask,
20 Don't Tell Policy,' the Electronic Privacy Act and Presidential directives
21 regarding the suspension of security clearances." (Trial Ex. 113 [Character
22 Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].)
23
24 Captain Timothy Higgins wrote about Almy: "Of the four maintenance
25 directorate chiefs I have worked with at the 606th, Major Almy is by far the
26 finest. During his tenure as the [director of logistics], he had maintenance
27
9
28 "SCI" means "Sensitive Compartmented Information."
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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
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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 Almy testified that if the Act were no longer in effect, he "wouldn't


2 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.) The Court
3 found Almy a credible, candid, and forthright witness.
4
5 2. Joseph Rocha
6 Joseph Rocha enlisted in the United States Navy on April 27, 2004, his
7 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like
8 Major Almy's, had a tradition of military service, and the September 11, 2001,
9 attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He
10 wanted to be an officer in the United States Marine Corps, but was not
11 admitted to the Naval Academy directly out of high school; so he hoped to
12 enter Officer Training School through diligence as an enlisted man. (Trial Tr.
13 473:24-474:24, July 15, 2010.)
14
15 After successfully completing basic training, he was promoted to
16 seaman apprentice and received further training in counter-terrorism and
17 force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered
18 for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15,
19 2010.) Once he arrived at the Naval Support base there, Rocha sought out
20 the base's canine handler position because he wanted to specialize in
21 becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.)
22
23 The canine group is a very elite and competitive unit, for which
24 qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha
25 volunteered his off-duty time to earn the qualifications to interview and be
26 tested for a kennel-support assignment; during this time, his interactions with
27 members of the canine unit were limited to one or two handlers on the night
28
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1 shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.)


2 Eventually, Rocha took and passed oral and written examinations with Chief
3 Petty Officer Toussaint, the canine group's commanding officer; Rocha met
4 the other qualifications and received an assignment in kennel support. (Trial
5 Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs –
6 who were trained to sniff and detect explosives and explosive devices – were
7 clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.)
8
9 At the same time, Rocha voluntarily participated in additional physical
10 training exercises with members of the Marine Corps, such as martial arts
11 and combat operations training, in the belief this eventually would improve his
12 chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July
13 15, 2010.) As Rocha aspired to become a Marine officer, after receiving
14 permission through the Marine chain of command, Rocha began "more
15 formal training," eventually earning martial arts, combat, and swimming
16 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)
17
18 Once assigned as kennel support to the canine unit and under Chief
19 Petty Officer Toussaint's command, Rocha was hazed and harassed
20 constantly, to an unconscionable degree and in shocking fashion. When the
21 eighteen-year-old Rocha declined to participate in the unit's practice of
22 visiting prostitutes, he was taunted, asked if he was a "faggot," and told to
23 prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:18-
24 487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to
25 the others in the unit, and others in the unit referred to him in a similar
26 fashion. (Trial Tr. 486:11-17, July 15, 2010.) When Rocha refused to answer
27 the questions from Toussaint and others in the unit about his sexuality, "it
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
28
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1 officer's questions regarding Toussaint only after he was threatened with a


2 court martial if he refused to do so. (Trial Tr. 520:11-15, July 15, 2010.)
3
4 The Navy recognized Rocha with several awards during his service,
5 including the Navy and Marine Corps Achievement Medal for professional
6 achievement that exceeds expectations; the Global War on Terrorism
7 Expeditionary Medal; the National Defense Service Medal; and the Navy
8 Expert Rifleman Medal. (Trial Tr. 517:23-24, 518:7-8, 14-16, 519:4-7, July
9 15, 2010.)
10
11 Rocha received consistently excellent performance evaluations and
12 reviews while he served in the Navy. (See Trial Exs. 144, 145.) In Rocha's
13 review covering February 18, 2005, through July 15, 2005, his supervisors –
14 including Toussaint – described Rocha as "highly motivated" and a
15 "dedicated, extremely reliable performer who approaches every task with
16 enthusiasm." (Trial Ex. 145; Trial Tr. 494:23-497:13, July 15, 2010.) Rocha's
17 review also stated that he was a "proven performer" who was "highly
18 recommended for advancement." (Trial Tr. 496:16-497:3, July 15, 2010.)
19 Rocha's review recommended him for early promotion, which he received
20 shortly thereafter. (Trial Tr. 497:7-22, July 15, 2010.) Toussaint signed the
21 review as Rocha's senior reviewing military officer. (Trial Tr. 495:19-23,
22 498:4-6, July 15, 2010.)
23
24 Despite the ongoing harassment, Rocha continued to receive
25 exemplary reviews from his supervisors in the canine handling unit, including
26 Chief Petty Officer Toussaint. In a review covering July 16, 2005, through
27 June 16, 2006, then-Petty Officer Rocha is described as an "exceptionally
28
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1 outstanding young sailor whose performance, initiative, and immeasurable


2 energy make[ ] him a model Master-At-Arms." (Trial Ex. 144; Trial Tr.
3 504:23-506,19, July 15, 2010.) The review also noted that as a military
4 working dog handler, Rocha "flawlessly inspected [over 300 items of military
5 equipment,] increasing the force protection of NSA Bahrain." (Trial Ex. 144;
6 Trial Tr. 506:10-13, July 15, 2010.) As a result of his performance as a
7 military working dog handler, Rocha received the Navy and Marine Corps
8 Achievement Medal, which is given when an enlisted member exceeds
9 expectations. (Trial Tr. 517:15-518:6 July 15, 2010.)
10
11 In 2006, Rocha was chosen to receive the sole nomination from his
12 congressman for entrance into the U.S. Naval Academy, and Rocha chose to
13 apply to the Naval Academy's preparatory school in the event he was not
14 accepted directly into the Naval Academy.10 (Trial Tr. 506:1-4; 507:4-23, July
15 15, 2010.) As required, he received the nomination of everyone in his chain
16 of command for his entry into the academy and was accepted into the Naval
17 Academy's preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) He
18 described his acceptance as "the most significant moment of [his] life . . . ,
19 [because acceptance into the Naval Academy] was the biggest dream [he'd]
20 ever had." (Trial Tr. 519:8-15, July 15, 2010.)
21
22 Once he enrolled at the preparatory academy, Rocha testified, he had
23 the opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-24,
24 July 15, 2010.) His instructors at the preparatory academy stressed the
25
10
26 According to Rocha's uncontradicted testimony on this point, the
preparatory academy is designed to give extra academic support before entry
27 into the Naval Academy at Annapolis. (Trial Tr. 507:24-508:4, July 15, 2010.)
Once admitted into the preparatory academy, acceptance into Annapolis is
28 guaranteed. (Trial Tr. 508:5-12, July 15, 2010.)
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1 nature of the fifteen- to twenty-year commitment expected of the officer


2 candidates. (Id.) Rocha understood he was gay when he enlisted in the
3 Navy at age eighteen, and had complied fully with the Don't Ask, Don't Tell
4 Act during his service, which he had thought would protect him. (Id.) After
5 reflecting on his experiences in the military working dog unit in Bahrain,
6 however, he decided it would be impossible for him to serve under the
7 restraints of the Act and fulfill the commitment expected of him. He then
8 decided to inform the Navy of his sexual orientation. (Trial Tr. 522:12-523:15,
9 July 15, 2010.)
10
11 He first sought permission from Ensign Reingelstein, his immediate
12 superior, to speak to the division commander; Ensign Reingelstein
13 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr.
14 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with his
15 commanding officer, Lt. Bonnieuto, who listened and told him to return to his
16 unit. (Trial Tr. 525:2-19, July 15, 2010.) Eventually, he received an
17 honorable discharge (see Trial Ex. 144), although before accepting Rocha's
18 statement, Lt. Bonnieuto tried to dissuade him, telling him he was being
19 considered for various honors and leadership positions at the preparatory
20 academy, including "battalion leadership." (Trial Tr. 525:21-526:6, 527:13-
21 528:22, 530:4-25, July 15, 2010.)
22
23 After his discharge, Rocha testified, he was diagnosed with service-
24 related disorders including "post-traumatic stress disorder with major
25 depression." (Trial Tr. 532:11-19, July 15, 2010.) He also testified he would
26 rejoin the Navy if the Don't Ask, Don't Tell Act was repealed. (Trial Tr.
27 533:24-534:2, July 15, 2010.)
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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
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1 shipmates, Kopfstein testified, because it causes people to "hide significant


2 parts of themselves," making it harder to establish the necessary sense of
3 teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.) When she overheard
4 homophobic comments and name-calling by her shipmates, she felt she
5 could neither report them nor confront the offenders, because to do either
6 might call unwanted suspicion upon her. (Trial Tr. 932:18-933:6, July 16,
7 2010.)
8
9 After serving for four months on the USS Shiloh, Kopfstein wrote a
10 letter to Captain Liggett, her commanding officer, stating she was a lesbian;
11 she wanted Captain Liggett to learn this from her rather than hear it from
12 another source. (Trial Tr. 933:7-13, 935:8-23, July 16, 2010; Trial Ex. 140
13 ["Memorandum of Record" from Kopfstein to Liggett dated July 17, 2000].)
14 Captain Liggett did not begin any discharge proceedings after Kopfstein
15 wrote this letter; he told her this was because he did not know her well and
16 thought she might have written the letter not because she was a lesbian, but
17 rather as an attempt to avoid deployment to the Arabian Gulf. (Trial Tr.
18 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.) Kopfstein continued
19 to serve and perform her duties in the same manner she had before writing,
20 but no longer lying or evading her shipmates' questions about her personal
21 life when asked. (Trial Tr. 950:25-951:11, July 20, 2010.)
22
23 When Liggett was leaving the USS Shiloh, to be replaced by Captain
24 Dewes, Captain Liggett not only invited her to the farewell party at his house
25 for the officers and their spouses, but made a point of telling her she was
26 welcome to bring "any guest she chose" with her. (Trial Tr. 955:12-956:8,
27 July 20, 2010.) Kopfstein and her partner attended the party, and Kopfstein
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
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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.)
27
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1 The Court found Kopfstein an honest, candid, and believable witness;


2 she testified with modest understatement about her talent and achievements
3 as a Naval Officer and with obvious sincerity about her desire to rejoin to
4 fulfill her original commitment.
5
6 4. John Nicholson
7 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. 1129:3-
10 1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He underwent testing in
11 the military for foreign language aptitude and qualified for the most difficult
12 level of language training, Category 4. (Trial Tr. 1151:25-1152:3, 1154:4-9,
13 July 20, 2010.) While Nicholson served, and especially while he was in basic
14 training at Fort Benning, Georgia, he sometimes heard other soldiers make
15 sexist or homophobic slurs but was afraid to report these violations of military
16 conduct lest suspicion fall on him or he be retaliated against in a manner that
17 would lead to his discharge under the Act. (Trial Tr. 1138:1-1142:14, 1143:2-
18 24, July 20, 2010.) Nicholson testified that the Don't Ask, Don't Tell Act
19 prevented him from being open and candid with others in his unit; it kept him
20 under a "cloud of fear," caused him to alter who he was, and made him lie
21 about who he was. (Trial Tr. 1194:17-1196:20, July 20, 2010.)
22
23 After completing his basic training, Nicholson was assigned to Fort
24 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr.
25 1143:25-1144:3, July 20, 2010.) While completing his intelligence training at
26 Fort Huachuca, Nicholson requested and received a reassignment to
27 counterintelligence, but remained at Fort Huachuca to complete the requisite
28
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1 counterintelligence training. (Trial Tr. 1148:5-14, July 20, 2010.) Nicholson


2 was waiting to start the next cycle of the counterintelligence course when
3 another servicemember started spreading a rumor that Nicholson was gay.
4 (Trial Tr. 1154:12-18, July 20, 2010.)
5
6 The rumor originated because, while off duty one day in January 2002,
7 Nicholson was writing a letter to a man with whom he had a relationship
8 before joining the Army; Nicholson was writing the letter in Portuguese to
9 prevent other servicemembers from reading it, because it contained
10 references that could reveal Nicholson's sexual orientation. (Trial Tr.
11 1134:10-23, 1161:10-1163:7, July 20, 2010.) Despite Nicholson's
12 precautions, another servicemember caught sight of the letter while chatting
13 with Nicholson. (Id.) After the two had been talking for a few minutes,
14 Nicholson realized she was one of the few persons he knew in the Army who
15 also could also read Portuguese; he gathered up the pages of his letter after
16 he noticed she appeared to be interested in it and reading it. (Id.; Trial Tr.
17 1163:8-18, July 20, 2010.)
18
19 After this incident, members of Nicholson's unit approached him and
20 told him to "be more careful" with regard to disclosure of his sexual
21 orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson sought his
22 platoon sergeant's assistance to stop the spread of the rumor, but instead the
23 sergeant informed the chain of command. (Trial Tr.1166:9-1167:19, 1170:9-
24 15, July 20, 2010.) Nicholson's company commander summoned Nicholson
25 to his office and informed Nicholson that he was initiating discharge
26 proceedings. (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the
27 meeting, the platoon sergeant, who also had been present at the meeting,
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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.)
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1 After completing training in December 2001, Loverde was stationed at


2 the Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.)
3 While at Ramstein, Loverde's flight was responsible for calibrating and
4 ensuring the accuracy and reliability of "various equipment used throughout
5 the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.) Loverde was
6 stationed at Ramstein for approximately three years. (Trial Tr. 1337:5-11,
7 July 21, 2010.)
8
9 After completing his tour at Ramstein Air Base, Loverde was stationed
10 at Edwards Air Force Base in California for approximately two years. (Trial
11 Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards, Loverde
12 was deployed to the Al Udeid Air Base in Qatar for four months, where he
13 supported Operations Iraqi Freedom and Enduring Freedom, as well as
14 missions taking place in the Horn of Africa. (Trial Tr. 1344:8-22, 1345:17-21,
15 July 21, 2010.)
16
17 During his stint in the Air Force, Loverde received frequent promotions;
18 three and one-half years after enlistment, for example, he was promoted to
19 staff sergeant, although the usual length of time to reach that rank is six
20 years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July 21, 2010.) After
21 serving his initial enlistment commitment, he reenlisted and received further
22 training to qualify as a loadmaster. (Trial Tr. 1352:25-1353:15, July 21,
23 2010.) In that capacity, he flew sixty-one combat missions in Iraq, where he
24 received two Air Medals. (Trial Tr. 1357:12-17, 1359:17-25, July 21, 2010.)
25
26 Loverde testified he was raised in a religious family and his church
27 taught that homosexuality was a sin; he had not realized he was gay at the
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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
24
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26
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1 Vossler met Jerrod Chaplowski, another soldier and Korean language


2 student, at the Monterey Language Institute, and became friends with him.
3 (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually he heard a rumor
4 that Chaplowski was gay. (Trial Tr. 318:22-320:24, July 14, 2010.) Vossler
5 testified that he was initially surprised at this, because "up until that point, [he]
6 still held some very stereotyping beliefs about gays and lesbians," but also
7 testified that as a heterosexual he had no difficulty sharing living quarters with
8 Chaplowski at any of the several Army bases where they were quartered
9 together; in fact, Chaplowski was a considerate roommate and it was always
10 a "great living situation." (Trial Tr. 319:16-17, 321:2-10, 327:1-11, 329:20-25,
11 July 14, 2010.)
12
13 The difficulty Vossler did encounter, he testified, was that when he and
14 Chaplowski were with other servicemembers and the conversation turned to
15 general subjects, he had to be excessively cautious lest he inadvertently cast
16 suspicion on Chaplowski and trigger an investigation under the Don't Ask,
17 Don't Tell Act. (See Trial Tr. 327:12-328:20, July 14, 2010.) For example, if
18 a group of soldiers was discussing their respective social activities over the
19 previous weekend, Vossler had to refer to Chaplowski's dinner companion as
20 "Stephanie" rather than "Steven;" even this small deception pained Vossler
21 as it violated the Army's code of honor. (Id.) Vossler also testified that he
22 observed that the Don't Ask, Don't Tell Act infringed Chaplowski's ability or
23 willingness to enforce the Army's policy banning offensive and discriminatory
24 language. (Trial Tr. 328:22-329:4, July 14, 2010.) Homophobic slurs,
25 epithets, and "humor" were commonplace and made Vossler uncomfortable;
26 he noticed that Chaplowski did not confront those who employed them,
27 although Vossler eventually did at times. (Trial Tr. 329:5-19, July 14, 2010.)
28
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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.
27
28
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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 shall be discharged if he or she "has stated that he or she is a homosexual11


2 or bisexual,12 or words to that effect . . . ." 10 U.S.C. § 654 (b)(2). Finally, a
3 servicemember shall be discharged if he or she has married or attempted to
4 marry a person "known to be of the same biological sex." 10 U.S.C. § 654
5 (b)(3).
6
7 The first two routes to discharge have escape clauses; that is,
8 discharges via either subsection (b)(1) or (b)(2) create a rebuttable
9 presumption which the servicemember may attempt to overcome. Through
10 this exception, a servicemember may rebut the presumption by
11 demonstrating the homosexual conduct which otherwise forms the basis for
12 the discharge under the Act meets five criteria, including inter alia, that it is a
13 "departure" from the servicemember's "usual and customary behavior," is
14 unlikely to recur, and was not accomplished by use of force, coercion or
15 intimidation. 10 U.S.C. § 654 (b)(1)(A)-(E).
16
17 An escape route also applies to the second basis for discharge under
18 the Act, the making of a statement that one is a homosexual. It allows the
19 servicemember to rebut the presumption thus created by demonstrating that
20 "he or she is not a person who engages in, attempts to engage, or has a
21 propensity to engage in, or intends to engage in homosexual acts." 10
22 U.S.C. § 654 (2).
23
24 11
"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).
12
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 B. The Standard of Review


2 As set out more fully in the July 6, 2010, Order, courts employ a
3 heightened standard of review when considering challenges to state actions
4 implicating fundamental rights. (July 6, 2010, Order at 6-9.) After the United
5 States Supreme Court's decision in Lawrence v. Texas, recognizing the
6 fundamental right to "an autonomy of self that includes freedom of thought,
7 belief, expression, and certain intimate conduct," 539 U.S. at 562, the Ninth
8 Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), held
9 the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and
10 private lives of homosexuals, in a manner that implicates the rights identified
11 in Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819. Thus,
12 in order for the Don't Ask, Don't Tell Act to survive Plaintiff's constitutional
13 challenge, it must "[1] advance an important governmental interest, [2] the
14 intrusion must significantly further that interest, and [3] the intrusion must be
15 necessary to further that interest." Id. Noting the Act "concerns the
16 management of the military, and judicial deference to . . . congressional
17 exercise of authority is at its apogee" in this context, Witt went on to decide
18 the Act advances an "important governmental interest." 527 F.3d at 821
19 (citations omitted). Accordingly, the Court's focus turns to the second and
20 third prongs.
21
22 C. The Act Does Not Significantly Further the Government's Interests
23 in Military Readiness or Unit Cohesion
24 1. Defendants' Evidence: The Legislative History and the
25 Statute Itself
26 Defendants relied solely on the legislative history of the Act and the Act
27 itself in support of their position that the Act passes constitutional muster.
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 chaired the Board, which made detailed recommendations regarding the


2 manner in which discipline against homosexual servicemembers should be
3 imposed, including circumstances in which discharge would be appropriate,
4 and whether discharge should be honorable or otherwise. The Report does
5 not, however, discuss the impact of the presence of homosexuals serving in
6 the Armed Forces on either military readiness or unit cohesion. Instead, the
7 Board assumed, without investigation, that the presence of homosexuals had
8 a negative effect and their exclusion was desirable, without elaborating on
9 the basis for those assumptions; the Report never made any findings
10 concerning the impact of homosexual servicemembers on military operations.
11
12 Accordingly, the Crittenden Report is not evidence that discharge of
13 homosexual servicemembers significantly furthers government interests in
14 military readiness or troop cohesion, or that discharge is necessary to those
15 interests. The Report, in fact, is silent on those interests.
16
17 It did conclude, however, that assumptions that homosexuals present
18 security risks and are unfit for military service are not well-supported by
19 evidence. The Report also generally found homosexuals to be no more or
20 less likely to be qualified to serve in the Armed Forces than heterosexuals
21 according to a number of measures.
22
23 b. The PERSEREC Report (Trial Ex. 5)
24 The PERSEREC Report, formally titled "Nonconforming Sexual
25 Orientation in the Military and Society," was published in 1988 by the
26 Defense Personnel Security Research and Education Center and authored
27 by Theodore R. Sabin and Kenneth E. Karois. The Report is a broad survey
28
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1 of then-prevailing legal trends regarding treatment of homosexuals, scientific


2 views on homosexuality, and the history of social constructions of
3 "nonconforming" sexual behavior. The Report notes a legal trend toward
4 increasingly recognizing rights of homosexuals, a scientific trend toward
5 recognizing homosexuality both as biologically determined and as a normal
6 condition not necessarily indicating physical or mental disease, and a societal
7 trend towards increasing acceptance of homosexual behavior.
8
9 The PERSEREC Report generally dismisses traditional objections to
10 service by homosexuals in the military as abstract, intangible, and tradition-
11 bound. The Report cites no evidence that homosexual servicemembers
12 adversely affect military readiness or unit cohesion. The Report discusses
13 unit cohesion, but only to state that empirical research on the effect of
14 homosexual servicemembers on unit cohesion is important and necessary in
15 the future; it points to no existing empirical data. In general, the Report
16 suggests the military begin a transition towards acceptance of homosexual
17 servicemembers.
18
19 c. The Rand Report (Trial Ex. 8)
20 The Rand Report was prepared by the Rand Corporation's National
21 Defense Research Institute in 1993 at the request of the Office of the
22 Secretary of Defense, Les Aspin. This summary of the Rand Report
23 discusses only "Section 10," entitled "What Is Known about Unit Cohesion
24 and Military Performance," as that is the sole section that bears on the issues
25 presented here.
26
27
28
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1 Foremost among the Rand Report's conclusions is that no empirical


2 evidence exists demonstrating the impact of an openly homosexual
3 servicemember on the cohesion of any military unit. In its discussion of unit
4 cohesion, the Report distinguished between social cohesion – "the emotional
5 bonds of liking and friendship of the members of a unit" (Trial Tr. 872:3-4,
6 July 16, 2010) and task cohesion – "a shared commitment to the group's
7 mission or task goals" (Trial Tr. 872:4-6, July 16, 2010); concluded that
8 according to public literature, only task cohesion has an even moderately
9 positive correlation with unit performance; and found after controlling for task
10 cohesion, social cohesion has almost no correlation to unit performance. The
11 Report further opines that an openly homosexual servicemember is more
12 likely to affect only social cohesion, rather than task cohesion, thus having
13 little to no impact on a unit's military performance.
14
15 The Report also concluded that merely assigning openly homosexual
16 servicemembers to a unit can decrease negative feelings towards
17 homosexuals, as fellow unit members tend to hold positive views of other
18 individuals simply because they have been arbitrarily assigned to the same
19 group. Moreover, contact with a group towards which negative feelings are
20 held tends to decrease negative feelings towards that group; Professor Belkin
21 described this phenomenon as "familiarity breeds tolerance." (Trial Tr. 297:9-
22 19, July 14, 2010.) The Report opined that the relationship between negative
23 feelings toward a group would not necessarily translate into disruptive
24 behavior, and that to the extent it did so translate, such behavior could be
25 influenced and controlled by appropriate institutional attitudes and attitudes of
26 unit leaders.
27
28
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1 d. Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255)


2 Dr. Korb testified before the Senate Armed Services Committee on
3 March 31, 1993 concerning the likely impact on unit cohesion if homosexuals
4 were permitted to serve openly. According to Dr. Korb, there was no
5 empirical research to support the view that homosexual servicemembers
6 would disrupt unit cohesion, and that such evidence could not be obtained
7 without integrating homosexuals into the military. Dr. Korb did concede,
8 however, that in the short run immediately following integration of
9 homosexual servicemembers, some negative effect on unit cohesion was
10 likely, but did not point to any evidence in support of this view. Dr. Korb
11 testified concerning the experiences of foreign militaries and domestic law
12 enforcement agencies that had integrated homosexual servicemembers, and
13 stated that their integration had not adversely affected unit cohesion or
14 performance in those entities.
15
16 e. Testimony of Dr. William Henderson (Trial Ex. 344 at
17 248)
18 Dr. Henderson testified before the Senate Armed Services Committee
19 on March 31, 1993 concerning the significance of unit cohesion. Dr.
20 Henderson testified that the "human element" is the most important factor in
21 warfare and the only force that motivates a unit to fight rather than flee or
22 take cover. Dr. Henderson testified that creation of a cohesive unit is
23 "significantly influenced by broad cultural values, norms, and characteristics
24 that are the result of a common socialization process and basic agreement
25 among unit members about cultural values." Dr. Henderson testified that two
26 types of unit cohesion exist: horizontal cohesion whereby troops identify with
27 each other, and vertical cohesion whereby troops identify with their leaders.
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 g. Testimony of General Colin Powell (Trial Ex. 344 at 707)


2 General Powell testified before the Senate Armed Services Committee
3 on July 20, 1993. General Powell expressed his general support for the
4 Policy as then proposed by President Clinton. General Powell testified that in
5 his opinion open homosexuality was incompatible with military service and
6 would undermine unit cohesion. General Powell opined that "behavior too far
7 away from the norm undercuts the cohesion of the group." He testified to his
8 belief that military training on tolerance could not overcome the innate
9 prejudices of heterosexual servicemembers. He also testified that the Policy
10 would improve military readiness, but only in that it settled the question of
11 whether or not homosexuals could serve in the military, as the public debate
12 had been a recent distraction to the military. His testimony implied that any
13 final resolution of the issue, regardless of substance, would improve military
14 readiness.
15
16 General Powell testified that despite the official position of
17 nondiscrimination towards homosexuals in the militaries of countries such as
18 Canada, Germany, Israel, and Sweden, practice does not always match
19 policy, and homosexuals are often subjected to discrimination in those
20 militaries. General Powell also rejected attempts to draw parallels between
21 exclusion of homosexuals and historical exclusion of African-Americans,
22 because "skin color is a benign nonbehavioral characteristic, while sexual
23 orientation is perhaps the most profound of human behavioral
24 characteristics."
25
26
27
28
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1 2. Plaintiff's Evidence: Reports, Exhibits and Expert and Lay


2 Testimony
3 When a governmental enactment encroaches on a fundamental right,
4 the state bears the burden of demonstrating the law's constitutionality. See
5 Witt, 527 F.3d at 819. Although Defendants bear this burden here and, as
6 described above, have relied unsuccessfully only on the statute itself and its
7 legislative history to meet it, Plaintiff introduced evidence demonstrating the
8 Act does not significantly advance the Government's interests in military
9 readiness or unit cohesion. The testimony of former servicemembers
10 provides ample evidence of the Act's effect on the fundamental rights of
11 homosexual members of the United States military. Their testimony also
12 demonstrates that the Act adversely affects the Government's interests in
13 military readiness and unit cohesion. In addition to the testimony from the lay
14 witnesses, Plaintiff introduced other evidence, from witnesses in such
15 specialties as national security policy, military sociology, military history, and
16 social psychology, on whether the Act furthered the Government's interests in
17 military readiness or unit cohesion.
18
19 a. Discharge of Qualified Servicemembers Despite Troop
20 Shortages
21 From 1993 through 2009, Defendants discharged, pursuant to the Act,
22 over 13,000 men and women serving in the United States Armed Forces.
23 During the years between 1994 through 2001, Defendants discharged at
24 least 7,856 servicemembers under the Act, according to a General
25 Accounting Office Report entitled "Financial Costs and Loss of Critical Skills."
26 (Trial Ex. 9 [2005 Government Accountability Office ("GAO") Report on the
27 "Financial Costs and Loss of Critical Skills Due to [the] DOD's Homosexual
28
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1 Conduct Policy"].) The combined branches of the Armed Forces discharged


2 the following numbers of servicemembers from 1994, the first full year after
3 adoption of the Don't Ask, Don't Tell Act, through the calendar year 2001:
4
5 Number of Servicemembers
6 Year
Discharged
7 1994 61613
8 1995 75714
9 1996 85815
10 1997 99716
1998 1,14517
11
1999 1,04318
12
2000 1,21319
13 2001 1,22720
14
Total discharged 1994 2001 7,856
15
16
17
18 13
(Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers
19 discharged).)
14
20 (Trial Ex. 9, at 8.)
15
21 (Id.)
16
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 17
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
24 18
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42
25 (showing 1,034 servicemembers discharged).)
19
26 (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42
(showing 1,213 servicemembers discharged).)
27 20
(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 Starting in 2002, after the U.S. began fighting in Afghanistan, the


2 number of servicemembers discharged under the Act fell sharply, despite the
3 greater raw number of military personnel. As but one example, in 2001,
4 Defendants discharged at least 1,217 servicemembers pursuant to the Don't
5 Ask, Don't Tell Act. In 2002, the number discharged under the Act fell to 885.
6
7 Year Number of Servicemembers
8 Discharged
9 2002 88521
10 2003 77022
11 2004 65323
12 2005 72624
2006 61225
13
2007 62726
14
2008 61927
15 2009 27528
16
Total discharged 2002-2009 5,167
17
18
19
21
20 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing
884 servicemembers discharged).)
21 22
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing
22 769 servicemembers discharged).)
23
23 (Trial Ex. 85, RFA Resp. No. 40.)
24
24 (Trial Ex. 85, RFA Resp. No. 41.)
25
25 (Trial Ex. 85, RFA Resp. No. 42.)
26
26 (Trial Ex. 85, RFA Resp. No. 43.)
27
27 (Trial Ex. 85, RFA Resp. No. 44.)
28
28 (Trial Ex. 85, RFA Resp. No. 45.)
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1 The decline in discharges after 2001, according to Dr. Nathaniel Frank,


2 illustrates that during wartime the military retains servicemembers known to
3 be homosexual, despite the Don't Ask, Don't Tell Act requiring discharge,
4 because of the heightened need for troops. (Trial Tr. 196:5-198:6, 257:21-
5 258:6, July 13, 2010.)
6
7 b. Discharge of Servicemembers with Critically Needed
8 Skills and Training
9 Among those discharged were many with critically needed skills.
10 According to the Government's own data, many of those discharged pursuant
11 to the Act 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. (Trial
14 Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering
15 the military's readiness, the discharge of these service men and women had
16 a direct and deleterious effect on this governmental interest.
17
18 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 Policy"
20 (Trial Ex. 9), Professor Frank pointed out that through fiscal year 2003,
21 several hundred medical professionals had been discharged pursuant to the
22 Act, yet a 2003 Senate report described a lack of medical care for wounded
23 troops returning from the Arabian Gulf and the resulting negative impact on
24 physical health and troop morale. (Trial Tr. 258:10-259:2, July 15, 2010.)
25 And at the same time that more than one-hundred thousand U.S. troops were
26 deployed to serve in combat in Iraq and Afghanistan, several hundred
27 servicemembers with "critical" language skills, including many qualified as
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 suspected of violating the Act, the investigation would be suspended if the


2 subject received deployment orders; not until he or she returned from combat
3 – assuming this occurred, of course – would the investigation be completed
4 and the servicemember discharged if found to have violated the Act. Thus,
5 Defendants deployed servicemembers under investigation for violating the
6 Act to combat missions or, if they were already so deployed, delayed the
7 completion of the investigation until the end of the deployment. (Trial Tr.
8 196:5-24, July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11,
9 188:13-190:9, Apr. 16, 2010.)
10
11 This evidence, in particular, directly undermines any contention that the
12 Act furthers the Government's purpose of military readiness, as it shows
13 Defendants continue to deploy gay and lesbian members of the military into
14 combat, waiting until they have returned before resolving the charges arising
15 out of the suspected homosexual conduct. If the warrior's suspected violation
16 of the Act created a threat to military readiness, to unit cohesion, or to any of
17 the other important Government objectives, it follows that Defendants would
18 not deploy him or her to combat before resolving the investigation. It defies
19 logic that the purposes of the Act could be served by suspending the
20 investigation during overseas deployments, only to discharge a
21 servicemember upon his or her return to a non-combat station.
22
23 Taken as a whole, the evidence introduced at trial shows that the effect
24 of the Act has been, not to advance the Government's interests of military
25 readiness and unit cohesion, much less to do so significantly, but to harm
26 that interest. The testimony demonstrated that since its enactment in 1993,
27 the Act has harmed efforts of the all-volunteer military to recruit during
28
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1 wartime. The Act has caused the discharge of servicemembers in


2 occupations identified as "critical" by the military, including medical
3 professionals and Arabic, Korean, and Farsi linguists. At the same time that
4 the Act has caused the discharge of over 13,000 members of the military,
5 including hundreds in critical occupations, the shortage of troops has caused
6 the military to permit enlistment of those who earlier would have been denied
7 entry because of their criminal records, their lack of education, or their lack of
8 physical fitness.
9
10 D. The Act is Not Necessary to Advance the Government's Interests
11 The Witt court held that to justify the infringement on the fundamental
12 rights identified in Lawrence, a defendant must satisfy both the requirement
13 that the Act "significantly furthers" the Government's interests and the
14 requirement that it is "necessary" to achieve them. To the extent that
15 Defendants have made a distinct argument here that the Act is necessary to
16 achieve the Government's significant interest, they have not met their burden
17 as to this prong of the Witt test, either.
18
19 1. Defendants' Admissions
20 In fact, Defendants have admitted that, far from being necessary to
21 further significantly the Government's interest in military readiness, the Don't
22 Ask, Don't Tell Act actually undermines that interest. President Obama, the
23 Commander-in-Chief of the Armed Forces, stated on June 29, 2009:
24 "Don't Ask, Don't Tell" doesn't contribute to our national security . .
. preventing patriotic Americans from serving their country weakens
25 our national security . . . . [R]eversing this policy [is] the right thing
to do [and] is essential for our national security.
26 (Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.) President Obama also
27 stated, regarding the Act on October 10, 2009, "We cannot afford to cut from
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 Professor Aaron Belkin confirmed this evidence in his testimony; his


2 research into military architecture revealed that apart from basic training sites
3 and service academies where there are open showers, servicemembers
4 usually have access to single stall showers. (Trial Tr. 617:21-619:1, July 15,
5 2010.) According to Professor Belkin, "the army, in recent years, has
6 implemented something called the one-plus-one barracks design standard.
7 What that means is that servicemembers are housed in an arrangement
8 where they each have their own bedroom and there is a bathroom between
9 the two bedrooms that they share." (Trial Tr. 618:8-13, July 15, 2010.)
10 Three-fourths of the troops quartered in combat zones in Afghanistan and
11 Iraq had access to single stall showers, according to his research. (Trial Tr.
12 626:3-8, July 15, 2010.)
13
14 Plaintiff's evidence regarding unit cohesion was equally plentiful and
15 persuasive. The testimony of both its lay and expert witnesses revealed that
16 the Act not only is unnecessary to further unit cohesion, but also harms the
17 Government's interest.
18
19 After Michael Almy was relieved of his command abruptly under the
20 Act, he witnessed firsthand what occurred when an unprepared junior officer
21 was forced to take over. He testified that "[t]he maintenance of the
22 equipment, the mission overall, the availability – the up time of the
23 equipment, the availability of the equipment to meet the mission suffered"
24 and there was "a huge detrimental effect to the morale" of the troops he
25 commanded after he was relieved of his command. (Trial Tr. 813:21-25, 814:
26 1-6, July 16, 2010.) Almy testified, "Virtually every day on my base on
27 Spangdahlem, I would encounter one of my former troops who wanted me
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
28
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1 ! by impeding the efforts to recruit and retain an all-volunteer military


2 force, the Act contributes to critical troop shortages and thus harms
3 rather than furthers the Government's interest in military readiness;
4
5 ! by causing the discharge of otherwise qualified servicemembers with
6 critical skills such as Arabic, Chinese, Farsi, and Korean language
7 fluency; military intelligence; counterterrorism; weapons development;
8 and medical training, the Act harms rather than furthers the
9 Government's interest in military readiness;
10
11 ! by contributing to the necessity for the Armed Forces to permit
12 enlistment through increased use of the "moral waiver" policy and lower
13 educational and physical fitness standards, the Act harms rather than
14 furthers the Government's interest in military readiness;
15
16 ! Defendants' actions in delaying investigations regarding and
17 enforcement of the Act until after a servicemember returns from combat
18 deployment show that the Policy is not necessary to further the
19 Government's interest in military readiness or unit cohesion;
20
21 ! by causing the discharge of well-trained and competent
22 servicemembers who are well-respected by their superiors and
23 subordinates, the Act has harmed rather than furthered unit cohesion
24 and morale;
25
26
27
28
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1 ! the Act is not necessary to protect the privacy of servicemembers


2 because military housing quarters already provide sufficient protection
3 for this interest.
4
5 The Don't Ask, Don't Tell Act infringes the fundamental rights of United
6 States servicemembers in many ways, some described above. The Act
7 denies homosexuals serving in the Armed Forces the right to enjoy "intimate
8 conduct" in their personal relationships. The Act denies them the right to
9 speak about their loved ones while serving their country in uniform; it
10 punishes them with discharge for writing a personal letter, in a foreign
11 language, to a person of the same sex with whom they shared an intimate
12 relationship before entering military service; it discharges them for including
13 information in a personal communication from which an unauthorized reader
14 might discern their homosexuality. In order to justify the encroachment on
15 these rights, Defendants faced the burden at trial of showing the Don't Ask,
16 Don't Tell Act was necessary to significantly further the Government's
17 important interests in military readiness and unit cohesion. Defendants failed
18 to meet that burden. Thus, Plaintiff is entitled to judgment in its favor on the
19 first claim in its First Amended Complaint for violation of the substantive due
20 process rights guaranteed under the Fifth Amendment.
21
22 V. PLAINTIFF'S FIRST AMENDMENT CHALLENGE TO THE ACT
23 Congress shall make no law . . . abridging the freedom of speech,
. . . or the right of the people peaceably to assemble, and to petition
24 the Government for a redress of grievances.
U.S. Const. amend. I.
25
26
27
28
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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 decided before Lawrence and was "necessarily rooted" in Bowers v.


2 Hardwick, 478 U.S. 186 (1986), which Lawrence overruled. See Holmes, 124
3 F.3d at 1137 (Reinhardt, J., dissenting).
4
5 Lawrence struck down a Texas statute making felonious certain sexual
6 acts between two persons of the same sex; the Supreme Court held in part
7 that the Constitution recognized certain substantive due process rights,
8 associated with the "autonomy of self that includes freedom of thought, belief,
9 expression, and certain intimate conduct." Lawrence, 539 U.S. at 562
10 (emphasis added). The Holmes decision, finding the Act did not implicate the
11 First Amendment, and the Act's provisions, appear at odds with the Supreme
12 Court's decision in Lawrence. As Holmes explains:
13 Homosexual conduct is grounds for separation from the Military
Services under the terms set forth [in the DOD Directives.]
14 Homosexual conduct includes homosexual acts, a statement by a
member that demonstrates a propensity or intent to engage in
15 homosexual acts, or a homosexual marriage or attempted marriage.
A statement by a member that demonstrates a propensity or intent to
16 engage in homosexual acts is grounds for separation not because it
reflects the member's sexual orientation, but because the statement
17 indicates a likelihood that the member engages in or will engage in
homosexual acts.
18 124 F.3d at 1129 (quoting DOD Directive 1332.30 at 2-1(c) (emphasis
19 added)).
20
21 The Holmes Court found the Act does not punish status, despite the
22 presumption embodied within it that declared homosexual servicemembers
23 will engage in proscribed homosexual conduct, finding the assumption was
24 "imperfect" but "sufficiently rational to survive scrutiny . . . ." 124 F.3d at
25 1135.
26
27
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1 Thus, Holmes's foundations – rational basis scrutiny, acceptance of an


2 assumption of sexual misconduct based on admitted homosexual orientation,
3 and the Bowers decision – all have been undermined by Lawrence,
4 particularly in light of its explicit protection of "expression." See Lawrence,
5 539 U.S. at 562. Furthermore, if the proscription in subsection (b)(1) of the
6 Act violates substantive due process as set forth above, then the limitation on
7 speech in subsection (b)(2) necessarily fails as well. "Plainly, a limitation on
8 speech in support of an unconstitutional objective cannot be sustained." Able
9 v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996). Holmes, decided before
10 Lawrence, therefore does not shield Defendants from Plaintiff's First
11 Amendment claim.
12
13 C. The Don't Ask, Don't Tell Act is Content Based
14 The Act in subsection (b)(2) requires a servicemember's discharge if he
15 or she "has stated that he or she is a homosexual or bisexual, or words to
16 that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act does not
17 prohibit servicemembers from discussing their sexuality in general, nor does
18 it prohibit all servicemembers from disclosing their sexual orientation.
19 Heterosexual members are free to state their sexual orientation, "or words to
20 that effect," while gay and lesbian members of the military are not. Thus, on
21 its face, the Act discriminates based on the content of the speech being
22 regulated. It distinguishes between speech regarding sexual orientation, and
23 inevitably, family relationships and daily activities, by and about gay and
24 lesbian servicemembers, which is banned, and speech on those subjects by
25 and about heterosexual servicemembers, which is permitted.
26
27
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1 The First Amendment's hostility to content-based regulation "extends


2 not only to restrictions on particular viewpoints, but also to prohibition of
3 public discussion of an entire topic. As a general matter, 'the First
4 Amendment means that government has no power to restrict expression
5 because of its message, its ideas, its subject matter, or its content.'" Consol.
6 Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980)
7 (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).
8
9 In evaluating the constitutionality of such regulations in a military
10 context, however, courts traditionally do not apply the strict scrutiny described
11 above. Rather, courts apply a more deferential level of review of military
12 restrictions on speech.
13 Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of similar
14 laws or regulations designed for civilian society. The military need
not encourage debate or tolerate protest to the extent that such
15 tolerance is required of the civilian state by the First Amendment; to
accomplish its mission the military must foster instinctive obedience,
16 unity, commitment, and esprit de corps.
Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted).
17
18
Although careful to point out that the "subordination of the desires and
19
interests of the individual to the needs of the service," which is "the essence
20
of military life," does not entirely abrogate the guarantees of the First
21
Amendment, the Supreme Court emphasized the "great deference [courts
22
must afford] to the professional judgment of military authorities concerning
23
the relative importance of a particular military interest." Id. (citations omitted).
24
The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S. 57
25
(1981), oft-cited for the principle that "judicial deference . . . is at its apogee
26
when legislative action under the congressional authority to raise and support
27
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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 By contrast to the relatively narrow regulations at issue in Brown and


2 Greer, however, the Don't Ask, Don't Tell Act encompasses a vast range of
3 speech, far greater than necessary to protect the Government's substantial
4 interests.
5
6 For example, Michael Almy and Anthony Loverde, as well as other
7 witnesses, described how the Act prevented them from discussing their
8 personal lives or comfortably socializing off duty with their respective
9 colleagues; this in turn created a certain "distance" and perhaps an aura of
10 distrust. (Trial Tr. 820:6--821:4;821:19-822:9, July 16, 2010 (Almy); Trial Tr.
11 1360:1-1361:17, July 21, 2010 (Loverde).) Steven Vossler testified that the
12 Act made it difficult for him to spend time off duty with other members of his
13 unit, as the Act prevented him from talking openly about spending time with
14 his friend Jerrod Chaplowski because of the need to disguise the identity of
15 Chaplowski's companion. (Trial Tr. 327:12-328:20, July 14, 2010.)
16
17 Similarly, Jenny Kopfstein testified that before she decided not to
18 conceal her sexual orientation, the Act made it impossible for her to respond
19 to her shipmates' questions about mundane matters such as how she spent
20 her leisure time, as doing so would necessarily reveal the existence of her
21 lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) She testified that
22 having to conceal information that typically was shared made her feel as
23 though others on the ship might distrust her, and that trust is critical,
24 especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 2010.)
25
26
27
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1 In other words, all of these examples demonstrate that the Act's


2 restrictions on speech not only are broader than reasonably necessary to
3 protect the Government's substantial interests, but also actually serve to
4 impede military readiness and unit cohesion rather than further these goals.
5
6 Many of the lay witnesses also spoke of the chilling effect the Act had
7 on their ability to bring violations of military policy or codes of conduct to the
8 attention of the proper authorities. Joseph Rocha, eighteen years old and
9 stationed in Bahrain, felt restrained from complaining about the extreme
10 harassment and hazing he suffered because he feared that he would be
11 targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14,
12 July 15, 2010.) In fact, his fear was so great that he initially refused to
13 answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15,
14 July 15, 2010.) John Nicholson and Anthony Loverde also testified about a
15 similar chilling effect on their speech when overhearing or being subjected to
16 homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20,
17 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).)
18
19 The Act prevents servicemembers from openly joining organizations
20 such as the plaintiff in this lawsuit that seek to change the military's policy on
21 gay and lesbian servicemembers; in other words, it prevents them from
22 petitioning the Government for redress of grievances. John Doe, for
23 example, feared retaliation and dismissal if he joined the Log Cabin
24 Republicans under his true name or testified during trial; thus, he was forced
25 to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doe Decl.]
26 ¶¶ 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16,
27 2010.)
28
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1 Furthermore, as discussed above, the Act punishes servicemembers


2 with discharge for writing a private letter, in a foreign language, to a person of
3 the same sex with whom they shared an intimate relationship before
4 volunteering for military service. It subjects them to discharge for writing
5 private e-mail messages, in a manner otherwise approved, to friends or
6 family members, if those communications might lead the (unauthorized)
7 reader to discern the writer's sexual orientation. These consequences
8 demonstrate that the Act's restrictions on speech are broader than
9 reasonably necessary to protect the Government's interest. Moreover, the
10 Act's restrictions on speech lead to the discharge of servicemembers with
11 qualifications in critically-needed occupations, such as foreign language
12 fluency and information technology. The net effect of these discharges, as
13 revealed not only in the testimony of the lay witnesses but also of the experts
14 who testified and Defendants' own admissions regarding the numbers of
15 servicemembers discharged and the costs of recruiting and maintaining an
16 all-volunteer military force, compel the conclusion that the Act restricts