Service Members United Amicus Brief in LCR V USA

Case: 10-56634 10/25/2010 Page: 1 of 23 ID: 7521852 DktEntry: 13
NO. 10-56634
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
LOG CABIN REPUBLICANS,
Plaintiff-Appellees,
v.
UNITED STATES OF AMERICA; and ROBERT M. GATES, Secretary of

Defense,
Defendant-Appellants.
Brief of Amicus Curiae Servicemembers United

In Support of Appellees’ Opposition to a Stay Pending Appeal
On Appeal from The United States District Court

for The Central District of California
No. 05-08425, Honorable Virginia A. Phillips
Raven W. Sarnoff (State Bar No. 240133)

David J. Sarnoff (State Bar No. 239363)
SARNOFF + SARNOFF, APLC
707 Wilshire Boulevard, Suite 4750
Los Angeles, CA 90017
Telephone: (213) 536-4236
Facsimile: (213) 536-4246
E-Mail: rsarnoff@sarnofflaw.com
dsarnoff@sarnofflaw.com
Attorneys for Amicus Curiae

Servicemembers United
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for Amicus
Curiae Servicemembers United, certifies that:
1. Servicemembers United is a not-for-profit corporation organized
under the District of Columbia Nonprofit Corporation Act and section
501(c)(4) of the Internal Revenue Code.
2. Servicemembers United has no parent corporation and no
publicly-held corporation owns ten percent or more of
Servicemembers United.
3.
DATED: October 25, 2010 SARNOFF + SARNOFF, APLC
By: s/ Raven W. Sarnoff

Raven W. Sarnoff
David J. Sarnoff

i
TABLE OF CONTENTS
Page
Table of Contents ................................................................................................ ii
Table of Authorities ............................................................................................ iv
Interest of Amicus Curiae .................................................................................... 1
Argument.....................................................................................................................2
A. The Requested Stay Will Substantially and Irreparably Harm Other

Interested Parties and the Public ................................................................2
1. A Lengthy Stay Would Permanently Preclude Countless Gay

and Lesbian Citizens and Veterans From Enlisting and
Re-enlisting in the Military..................................................................3
a. Sergeant Kevin Forte .......................................................................5
b. Sergeant Brian Fricke ......................................................................6
c. Specialist Jarrod Chlapowski .........................................................6
d. Brad Beckett.....................................................................................7
e. Chris Robinson.................................................................................7
2. The Stay Will Substantially and Irreparably Harm SU and its

Members’ Free Speech Rights ............................................................8
3. The Stay Will Substantially and Irreparably Harm SU’s Right of

Association ............................................................................................9
4. The Stay Will Substantially and Irreparably Harm SU’s Right to

Petition the Government for Redress of Grievances .........................10
5. The Stay Will Substantially and Irreparably Harm the Public..........11
ii
B. The Harm to Interested Parties and the Public if this Court

Grants the Stay Sharply Outweighs that Claimed by the
Government if it is Denied .....................................................................11
1. The Military’s Significant Increase of the Authority Required

to Discharge under DADT Demonstrates its Ability to Comply
with the Injunction Without Sustaining Substantial or Irreparable
Harm ....................................................................................................12
2. The Military Suffered No Irreparable Harm During Enforcement

of DADT’s Injunction Earlier this Month........................................13
3. The Military Suffered No Irreparable Harm During Voluntary

Suspensions of DADT During Periods of Heightened Conflict ... 14
Conclusion ......................................................................................................... 16
iii
TABLE OF AUTHORITIES
CASES Page
Golden Gate Rest. Ass’n v. City and County of San Francisco

512 F.3d 1112 (9th Cir. 2008) ................................................................... 2
Hilton v. Braunskill
481 U.S. 770 (1987)................................................................................... 2
NAACP v. Alabama, ex rel. Patterson

357 U.S. 449 (1958)................................................................................... 9
STATUTES
10 U.S.C. § 654.................................................................................................... 1
iv
Amicus curiae, Servicemembers United, submits this brief in support of the
Log Cabin Republican’s (Plaintiff-Appellees) position in opposition to the United
States of America and Robert M. Gates, Secretary of Defense’s (Defendant-
Appellants) (“the Government”) Emergency Motion for Stay Pending Appeal Under
Circuit Rule 27-3 and for Temporary Administrative Stay pending appeal of the
District Court’s October 12, 2010 injunction of the “Don’t Ask, Don’t Tell” Act, 10
U.S.C. § 654, (“DADT”), in the case of Log Cabin Republicans v. United States of
America and Gates, Case No. CV 04-08425-VAP, United States District Court for
the Central District of California. This brief is filed pursuant to the consent of all
parties.
INTEREST OF AMICUS CURIAE
Servicemembers United (“SU”), a non-profit and non-partisan organization,
is the nation's largest organization of gay and lesbian troops and veterans and their
supporters. SU engages in organizing, education, and advocacy on the issues that
impact the gay military, veteran, and defense community. SU was founded by gay
and lesbian troops and veterans in order to provide a way for those actually
affected by DADT to join the movement for its repeal. SU’s membership consists
of active duty gay and lesbian servicememmbers, veterans, and other individuals
who recognize that discrimination is not an American value. Based on its extensive
1
work in support of gay and lesbian troops and veterans, including its efforts to
repeal DADT, SU is uniquely qualified to assist the Court in the instant case.
ARGUMENT
A continued stay of the District Court’s judgment enjoining enforcement of
DADT will cause substantial and irreparable harm to SU’s individual members, the
organization itself, and the public, which sharply outweighs the harm claimed by
the Government if DADT is enjoined.
A. The Requested Stay Will Substantially and Irreparably Harm Other

Interested Parties and the Public
The factors this Court must consider in deciding whether to issue the stay
sought by the Government are: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the public
interest lies.” Golden Gate Rest. Ass’n v. City and County of San Francisco, 512
F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)). As advocates and educators on issues affecting the gay military, veteran,
and defense community, SU addresses in this amicus brief how SU’s members, the
association itself, and the public, will be substantially and irreparably harmed if
this Court grants the instant stay.
2
1. A Lengthy Stay Would Permanently Preclude Countless Gay and

Lesbian Citizens and Veterans From Enlisting and Re-enlisting in
the Military
A continued stay of the injunction against DADT will cause substantial and
irreparable injury to the many gays and lesbians who seek to enlist or re-enlist in
the military if enforcement of DADT is enjoined. Tens of thousands of brave and
patriotic servicemembers have either been discharged or have left the military due
to the emotional and physical burdens placed on them by this unconstitutional
policy. Many of these individuals as well as civilians who never enlisted due to
DADT, will seek to re-enlist or enlist for the first time if DADT remains enjoined.
However, because the military branches have strict age limitations for enlistment
and re-enlistment, 1 if the stay is granted, a significant number of these courageous
individuals will “age-out” during the stay and lose the opportunity to serve their
country. The military has similar age limits for becoming a commissioned officer,
which will cause numerous gays and lesbians seeking enlistment or re-enlistment
to “age-out” of the opportunity to become commissioned officers if the stay is
1
For example, in order to enlist in the Air Force for active duty without prior
service, an individual must be 27 years of age or less. Likewise, 28 years old is the
limit for the Marines, 34 for the Navy, and 42 for the Army. Servicemembers who
wish to re-enlist may have their prior service considered and may have the age
limit waived. However, there is no guarantee of receiving an age waiver, and this
decision is left to the discretion of the person handling the enlistment application.
Each branch of the military treats those with prior service differently, regardless of
whether they are enlisting for active duty or seeking commissions.
3
granted. These honorable individuals will certainly suffer substantial and
irreparable harm if the stay is continued.
Moreover, the potential harm of a continued stay is even greater for enlistees
and commissioned officers already discharged under DADT or who may be
discharged under DADT during the requested stay. Once servicemembers leave
the military, it becomes harder every day to return, especially for commissioned
officers. After a certain period of time, some branches will not restore
servicemembers to the position they left. Returning servicemembers may also be
demoted in rank, thereby losing status, pay, and benefits, and may be required to
repeat basic training. Therefore, each day the stay remains in effect, it becomes
more difficult for servicemembers affected by DADT to return to active duty.
The substantial and irreparable harm these admirable gay and lesbian
civilians and discharged servicemembers will suffer is not merely speculative.
Granting the stay will foreclose the opportunity for many of them to join the
military, join the service branch of their choice, become commissioned officers, or
restore military careers destroyed by DADT.
When DADT is ultimately affirmed on appeal, the military will also have
lost the service of countless highly skilled individuals who would have otherwise
served their country during the stay. Many of the servicemembers ousted from
their military careers by DADT were highly trained soldiers, officers, and
4
specialists whose skills the military certainly needs. Their talents, and the effort
put forth by the military to train them, will be for naught if the injunction is
stayed.
If appeal of this case takes the typical year or more for completion,
numerous individuals hoping to serve their country will “age-out” during the stay.
The following examples of SU members who want to enlist or re-enlist in the
military but will likely “age-out” during the next year or more represent the real
and imminent harm that countless individuals will suffer if the stay is granted.
a. Sergeant Kevin Forte
Sergeant Kevin Forte, a current SU member, is a decorated veteran who left
the Marines due to the enormous toll exacted upon him by serving in the military
under DADT. During his service, he received the Navy and Marine Corps
Achievement Medal, Marine Corps Good Conduct Medal, Combat Action Ribbon
for his service in Iraq, Marine Corps Overseas Ribbon, Marine Security Guard
Ribbon, Global War On Terrorism Service Medal, Global War on Terrorism
Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Ribbon,
Navy Meritorious Unit Commendation Medal, Presidential Unit Citation – Navy,
Meritorious Mast, and Certificate of Appreciation. Sergeant Forte would
undoubtedly still be a Marine but for the distress he suffered from being forced to
hide his sexual identity to avoid discharge under DADT. If this Court grants the
5
stay, Sergeant Forte will likely never have the opportunity to rejoin his ranks, as he
is currently 27 years old and may soon become ineligible to re-enlist or be
commissioned in either the Marines or the Air Force.
b. Sergeant Brian Fricke
Sergeant Brian Fricke, a member of SU, served in the Marines for five years,
before leaving the service because of DADT. As a Marine, Sergeant Fricke
received the Meritorious Mast, Letter of Achievement, two Navy Marine Corps
Achievement Medals, Good Conduct Medal, Global War on Terror Service Medal,
Global War on Terror Expeditionary Medal, National Defense Medal, and the Iraq
Campaign Medal. Sergeant Fricke wants to return to the service if DADT is
enjoined, but because he turns 28 years old next month, he may be forever barred
from becoming a commissioned Marine officer, resulting in a waste of both his
ambition and the Marines’ time and expense training Sergeant Fricke.
c. Specialist Jarrod Chlapowski
Similarly, SU member Specialist Jarrod Chlapowski, age 28, served in the
Army for five years before leaving because of DADT. Like Sergeant Forte,
Specialist Chlapowski received numerous awards, medals, and commendations for
his service including the Army Commendation Medal, Army Achievement Medal,
Army Good Conduct Medal, National Defense Service Medal, Korea Defense
Service Medal, Non Commissioned Officer Professional Development Ribbon,
6
Army Service Ribbon, and Global War on Terrorism Service Medal. Specialist
Chlapowski wants to return to the service in the Marines, yet, because of his age,
he will soon be beyond the age limitation to be commissioned as a Marine officer.
d. Brad Beckett
Brad Beckett, a 26 year-old gay civilian and member of SU, wants to join
the Air Force, but currently cannot because of DADT. Beckett will lose the
opportunity to ever join the Air Force if this Court stays the injunction of DADT
beyond the next 13 months, since the Air Force requires enlistees to be no older
than 27 years old. Thus, a lengthy stay would effectively preclude Beckett from
ever serving in the Air Force.
e. Chris Robinson
Chris Robinson, a 33 year-old gay civilian and SU member, also wants to
join the military, but is barred from doing so by DADT. Robinson, who will be 34
years old in November 2010, will very likely be prohibited from enlisting in the
Navy, and will be illegible to become a commissioned officer in the Army, Navy,
or Air Force if the stay continues.
As demonstrated by these examples of SU members, granting the stay will
cause substantial and irreparable harm to the many gay and lesbian individuals
who want to serve their country and defend it from the many challenges it will
face, but will likely “age-out” during the stay.
7
2. The Stay Will Substantially and Irreparably Harm SU and its

Members’ Free Speech Rights
If this Court grants the requested stay, DADT will continue to infringe upon
SU and its members’ First Amendment free speech rights every day that it remains
in effect. Approximately one-third of SU’s members are active duty gay and
lesbian servicemembers forced by DADT to conceal their sexual orientation. Not
only does DADT silence these servicemembers’ daily speech regarding their
personal lives, identity, and feelings, it also prevents the very people affected by
DADT from speaking out against the policy. Every day that DADT remains in
effect, is another day that the voices of the very people injured by the policy
remain silenced and unable to advocate on their own behalf. Not only does this
diminish SU’s effectiveness, it also squelches public discourse by active duty gay
and lesbian servicemembers regarding all aspects of gay rights (gay marriage,
adoption, etc.) for fear of discharge under DADT.
SU was founded to give a voice to gay and lesbian servicemembers affected
by DADT and provide a way for them to join the movement for DADT’s repeal.
However, it is not a perfect solution. SU’s very existence is only necessary
because DADT prevents self-advocacy by the individuals actually affected by the
policy. If the stay is granted, these servicemembers’ will suffer substantial and
irreparable harm as a result of being excluded from the public discourse regarding
DADT’s constitutionally while this very issue is on appeal.
8
3. The Stay Will Substantially and Irreparably Harm SU’s Right of

Association
If the injunction is further stayed, DADT will also continue to infringe upon
SU and its members’ constitutional right of association. The freedom of
association is an essential part of the freedom of speech because, as noted by the
United State Supreme Court in NAACP v. Alabama, ex rel. Patterson, 357 U.S.
449, 460 (1958), in many cases, effective speech can only happen when people
join together. In Patterson, the Supreme Court overturned a state law compelling
disclosure of the NAACP’s membership because it found it to be an
unconstitutional restraint on association that “may induce members to withdraw
from the Association and dissuade others from joining it because of fear of
exposure of their beliefs shown through their associations and of the consequences
of this exposure.” Id. at 463.
DADT similarly restrains SU’s right of association by dissuading active duty
gay and lesbian servicemembers from joining and publicly participating in SU for
fear that doing so will arouse suspicion about their sexual orientation. The
deleterious effect DADT has on SU’s membership substantially and irreparably
harms both the gay and lesbian servicemembers who choose not to join or actively
participate in SU, as well as the organization itself. Many servicemembers choose
not to join or actively participate in SU because of the risk doing so could pose to
their military careers. By dissuading servicemembers from joining or publically
9
participating in SU, DADT’s continued enforcement compromises SU’s mission to
educate and advocate on behalf of gay and lesbian servicemembers. For every
servicemember who chooses not to join or actively participate in SU for fear of
reprisal under DADT, not only is the size and efficacy of SU’s membership
diminished, so too is the diversity of ideas and perspectives that might otherwise
flourish.
4. The Stay Will Substantially and Irreparably Harm SU’s Right to

Petition the Government for Redress of Grievances
Every day that DADT is not enjoined, active duty gay and lesbian
servicemembers will suffer substantial and irreparable harm because they are
precluded from exercising their First Amendment right to Petition the Government
for redress of grievances. One-third of SU’s membership, the gay and lesbian
troops actively serving in the military, is precluded from petitioning the
government to seek changes regarding its policies toward gays and lesbians,
including DADT. Moreover, countless gay and lesbian servicemembers never join
organizations such as SU that promote gay rights in fear of career ending dismissal
under DADT. Thus, the voices of those oppressed by DADT are silenced from
petitioning our government for redress of their grievances regarding the very
policy that silences them. Additionally, active duty gay and lesbian
servicemembers are prohibited from advocating regarding any aspect of gay rights
for fear of discharge under DADT.
10
5. The Stay Will Substantially and Irreparably Harm the Public
Granting the requested stay will also inflict substantial and irreparable harm
on the public. DADT infringes upon the First Amendment rights of speech and
association of every person who is a family member, friend, spouse or, partner of a
gay or lesbian servicemember. Every person close to a gay or lesbian
servicemember is involuntarily enlisted in hiding the truth about the
servicemember’s sexual orientation. They must censor their written and public
communications, avoid associating with certain people or in certain places, and
repress behavior that may arouse suspicion about the servicemember’s sexual
orientation. As recognized by SU’s civilian and/or heterosexual membership,
DADT substantially and irreparably harms the public every day that it remains in
effect by enforcing and condoning unconstitutional discrimination that is wholly
inconsistent both with the military’s mission to safeguard and advance freedom, as
well as the American public’s interest in freedom and equality under the law.
B. The Harm to Interested Parties and the Public if this Court Grants
the Stay Sharply Outweighs that Claimed by the Government if it is
Denied
The Government claims that the military will sustain irreparable harm absent
a continued stay of DADT’s injunction because it will interfere with the military’s
efforts to devise an orderly end to DADT. However, the military’s own voluntary
response to DADT’s injunction, as well its historical willingness to suspend DADT
11
during periods of heightened conflict, belies the Government’s argument.
Moreover, any negligible harm the military may sustain from DADT’s immediate
injunction is clearly outweighed by the continued deprivation of constitutional
rights interested parties such as SU, its membership, and the public will suffer if
the stay is granted.
1. The Military’s Significant Increase of the Authority Required to

Discharge under DADT Demonstrates its Ability to Comply with
the Injunction Without Sustaining Substantial or Irreparable
Harm
Rather than falling into the administrative disarray the Government claims it
will if the Court denies the stay, the military has responded to DADT’s inevitable
repeal efficiently and cooperatively. As early as March 25, 2010, the military
raised the authority to initiate investigations and approve discharges under DADT
to the one-star general level. 2 On October 21, 2010, Defense Secretary Robert
Gates raised the level of authority required to approve DADT discharges to the
armed services secretaries under consultation with the Under Secretary of Defense
for Personnel and Readiness and the General Counsel of the Department of
Defense. By raising this authority to such a high level, Gates’ directive effectively
requires the military to comply with the injunction’s order to suspend discharges
2
Before March 25, 2010, the authority to initiate an investigation under DADT
was usually vested in a company commander, and the authority to sign-off on a
DADT discharge generally rested with a brigade commander.
12
under DADT. The higher in the chain of command approval of discharges lies, the
fewer discharges will be referred up the chain and the longer the discharge process
will be. 3 The military’s voluntary compliance with at least half of the District
Court’s injunction makes it clear that a stay is not necessary to effectuate an
orderly end of DADT.
2. The Military Suffered No Irreparable Harm During Enforcement

of DADT’s Injunction Earlier this Month
The Government has further failed to meet its burden to prove the
irreparable harm necessary to justify a stay by failing to identify any harm to the
military during the approximately one-week period DADT was enjoined. During
that time, not only did the military not sustain irreparable harm, it demonstrated
ability to comply with the injunction. On October 12, 2010, all services branches
ordered immediate cessation of all discharges and investigations under DADT in
compliance with the District Court’s injunction. The Government has submitted
no evidence that the military suffered any harm, let alone irreparable harm, during
the injunction. Similarly, a Pentagon spokesman admitted six days after issuance
of the injunction that “no disciplinary problems or mass-resignations,” two
consequences of halting gay discharges consistently predicted by DADT’s
3
Prior to Gates’ October 12, 2010 memorandum, discharging an officer, which
required approval at the service secretary level typically took 12-16 months.
Discharging an enlistee, which did not require service secretary approval prior to
the memorandum, typically took one week to two months.
13
defenders, were reported following issuance of the injunction. 4 The fact that the
military immediately complied with the injunction without suffering any harm, let
alone irreparable harm, warrants denial of the stay.
3. The Military Suffered No Irreparable Harm During Voluntary

Suspensions of DADT During Periods of Heightened Conflict
Although the military has maintained an official policy of excluding gays
and lesbians since World War II, enforcement has fluctuated relative to the
personnel needs of the military. 5 The military relaxes restrictions on gays serving
in the military during periods of heightened conflict pursuant to “stop-loss” orders
issued by the president. 6 During the first Gulf War, President Bush invoked a
4
Michael Bowman, Judicial Battle Continues Over Repeal of Openly-Gay
Military Service Ban, Voice of America,
http://www.voanews.com/english/news/usa/Judicial-Battle-Continues-Over-
Repeal-of-Openly-Gay-Military-Service-Ban-105281723.html.
5
Rhonda Evans, Center for the Study of Sexual Minorities in the Military, Institute
for Social, Behavioral, and Economic Research, UC Santa Barbara, U.S Military
Policies Concerning Homosexuals: Development, Implementation and Outcomes
15-16, 22 (2001).
6
Id. Discharge statistics corroborate a pattern of rising expulsions during
peacetime and plummeting rates during military conflicts, and Pentagon statistics
confirm that, as has been the case in every war since World War II, gay discharges
have declined during the current conflict in the Middle East. Press Release,
Geoffrey Bateman, Center for the Study of Sexual Minorities in the Military,
University of California, Santa Barbara, Researchers Locate Army Document
Ordering Commanders Not to Fire Gays (September 13, 2005),
http://www.palmcenter.org/press/dadt/releases/researchers_locate_army_document
_ordering_commanders_not_to_fire_gays; DADT Discharges by Fiscal Year
14
“stop-loss” order allowing the suspension of discharge proceedings, which was
applicable to those facing separation for homosexuality.7 Three days after the
terrorist attacks of 9/11, President Bush signed an executive order that authorized
the individual service branches to initiate a “stop-loss,” allowing (but not ordering)
the military to suspend laws relating to separation of military personnel. 8
Not surprisingly, given that DADT requires gays and lesbians to be
discharged whether or not the country is at war, the military has consistently
denied that it suspends DADT during heightened conflict. However, in 2005,
researchers discovered a regulation in the "Reserve Component Unit Commander's
Handbook" which stated that if a discharge for homosexual conduct is requested
"prior to the unit's receipt of alert notification, discharge isn't authorized. Member
will enter AD [active duty] with the unit." 9 Clearly, the military voluntarily
1994-2009 from Servicemembers United (based on data from the Office of the
Secretary of Defense, the Department of Homeland Security, and the Army
National Guard Bureau), http://dadtarchive.org/ (2010) (charting the decline in
discharges of gay and lesbian troops by approximately one-third after 9/11, and the
same after the U.S. invasion of Iraq).
7
Nathaniel Frank, Ph.D., Palm Center, Research Note on Pentagon Practice of
Sending Known Gays to War 2 (July 1, 2007).
8
Id. at 2.
9
Press Release, Geoffrey Bateman, Center for the Study of Sexual Minorities in
the Military, University of California, Santa Barbara, Researchers Locate Army
Document Ordering Commanders Not to Fire Gays (September 13, 2005),
www.palmcenter.org/press/press-releases; FORSCOM Regulation 500-3-3
15
suspends DADT’s enforcement where there is a practical need for increased
manpower. In light of this policy, the Government can hardly demonstrate that
enjoining DADT pending appeal will cause the military irreparable harm, since the
military itself voluntarily suspends DADT without any deleterious effects.
CONCLUSION
For all the reasons stated above, Servicemembers United respectfully
requests that the Court deny a stay pending appeal.
DATED: October 25, 2010 Respectfully submitted,

SARNOFF + SARNOFF, APLC

Raven W. Sarnoff
David J. Sarnoff

Volume III, Reserve Component Unit Commanders Handbook, 15 July 1999,

available at http://www.palmcenter.org/files/active/0/2005-09_forscomReport.pdf.
16
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B) because it contains 3,622 words, excluding the
parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because it has been prepared in a proportionally
spaced typeface using Microsoft Word 2003 in size 14 Time News Roman font.
DATED: October 25, 2010 SARNOFF + SARNOFF, APLC

Raven W. Sarnoff
David J. Sarnoff

17
CERTIFICATE OF SERVICE
I am employed in the County of Los Angeles, State of California. I am
over the age of 18 and not a party to the within action. My business address is
707 Wilshire Blvd., Ste. 4750, Los Angeles, CA 90017.
I herby certify that on October 25, 2010, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF will be served by the
appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepaid, or have dispatched it to a third party commercial carrier for
delivery within 3 calendar days, to the following non-CM/ECF participants:
Executed on October 25, 2010, at Los Angeles, California.
I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
/s/ David J. Sarnoff

David J. Sarnoff

Service Members United Amicus Brief in LCR V USA

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Case: 10-56634 10/25/2010 Page: 1 of 23 ID: 7521852 DktEntry: 13

UNITED STATES COURT OF APPEALS

LOG CABIN REPUBLICANS,

UNITED STATES OF AMERICA; and ROBERT M. GATES, Secretary of

Brief of Amicus Curiae Servicemembers United

On Appeal from The United States District Court

Raven W. Sarnoff (State Bar No. 240133)

Attorneys for Amicus Curiae

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for Amicus

Curiae Servicemembers United, certifies that:

1. Servicemembers United is a not-for-profit corporation organized

under the District of Columbia Nonprofit Corporation Act and section

501(c)(4) of the Internal Revenue Code.

2. Servicemembers United has no parent corporation and no

publicly-held corporation owns ten percent or more of

DATED: October 25, 2010 SARNOFF + SARNOFF, APLC

By: s/ Raven W. Sarnoff

Attorneys for Amicus Curiae

Table of Contents ................................................................................................ ii

Table of Authorities ............................................................................................ iv

Interest of Amicus Curiae .................................................................................... 1

A. The Requested Stay Will Substantially and Irreparably Harm Other

1. A Lengthy Stay Would Permanently Preclude Countless Gay

a. Sergeant Kevin Forte .......................................................................5

b. Sergeant Brian Fricke ......................................................................6

c. Specialist Jarrod Chlapowski .........................................................6

2. The Stay Will Substantially and Irreparably Harm SU and its

3. The Stay Will Substantially and Irreparably Harm SU’s Right of

4. The Stay Will Substantially and Irreparably Harm SU’s Right to

5. The Stay Will Substantially and Irreparably Harm the Public..........11

B. The Harm to Interested Parties and the Public if this Court

1. The Military’s Significant Increase of the Authority Required

2. The Military Suffered No Irreparable Harm During Enforcement

3. The Military Suffered No Irreparable Harm During Voluntary

Golden Gate Rest. Ass’n v. City and County of San Francisco

NAACP v. Alabama, ex rel. Patterson

Amicus curiae, Servicemembers United, submits this brief in support of the

Log Cabin Republican’s (Plaintiff-Appellees) position in opposition to the United

States of America and Robert M. Gates, Secretary of Defense’s (Defendant-

INTEREST OF AMICUS CURIAE

Servicemembers United (“SU”), a non-profit and non-partisan organization,

supporters. SU engages in organizing, education, and advocacy on the issues that

A continued stay of the District Court’s judgment enjoining enforcement of

the Government if DADT is enjoined.

A. The Requested Stay Will Substantially and Irreparably Harm Other

this Court grants the instant stay.

1. A Lengthy Stay Would Permanently Preclude Countless Gay and

the military if enforcement of DADT is enjoined. Tens of thousands of brave and

to the emotional and physical burdens placed on them by this unconstitutional

and re-enlistment, 1 if the stay is granted, a significant number of these courageous

to “age-out” of the opportunity to become commissioned officers if the stay is

granted. These honorable individuals will certainly suffer substantial and

irreparable harm if the stay is continued.

and commissioned officers already discharged under DADT or who may be

servicemembers to the position they left. Returning servicemembers may also be

more difficult for servicemembers affected by DADT to return to active duty.

civilians and discharged servicemembers will suffer is not merely speculative.

restore military careers destroyed by DADT.

The following examples of SU members who want to enlist or re-enlist in the

a. Sergeant Kevin Forte

Sergeant Kevin Forte, a current SU member, is a decorated veteran who left

Ribbon, Global War On Terrorism Service Medal, Global War on Terrorism