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No.

10A–_______

In the
Supreme Court of the United States

LOG CABIN REPUBLICANS,

Applicant,
vs.

UNITED STATES OF AMERICA and ROBERT M. GATES,


SECRETARY OF DEFENSE, in his official capacity,

Respondents.

ON APPLICATION TO VACATE AN ORDER OF THE


UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPLICATION TO VACATE ORDER


STAYING JUDGMENT AND PERMANENT INJUNCTION

Dan Woods
dwoods@whitecase.com
Counsel of Record
Earle Miller
emiller@whitecase.com
Aaron A. Kahn
aakahn@whitecase.com
WHITE & CASE LLP
633 West Fifth Street, Suite 1900
Los Angeles, California 90071
Telephone: (213) 620-7700
Facsimile: (213) 452-2329
Attorneys for Applicant
TABLE OF CONTENTS

Page

ARGUMENT........................................................................................................ 3

A. The Don't Ask, Don't Tell statute and the proceedings below ..... 3

B. A stay of the district court’s order is not a matter of right,


and respondents failed to make the required showing for a
stay. ................................................................................................ 8

C. The court of appeals completely failed to balance the


hardships, or to take into account at all the injury to
applicant that a stay causes .......................................................... 9

D. The court of appeals’ order ignored both the uncontroverted


evidence and controlling precedent to reach a result-oriented
outcome......................................................................................... 14

1. A presumption of constitutionality does not trump a


balancing of the equities ................................................... 14

2. Deference to military judgment does not outweigh


constitutional rights.......................................................... 15

3. The court of appeals incorrectly ignored controlling


law and claimed that an injunction would interfere
with the pronouncements of other circuits....................... 16

E. At a minimum, discharges under DADT must be suspended. ... 19

CONCLUSION .................................................................................................. 21

CORPORATE DISCLOSURE STATEMENT................................................... 22

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TABLE OF AUTHORITIES

Page

Cases

Able v. United States, 155 F.3d 628 (2d Cir. 1998)....................................16, 17


Blum v. Caldwell, 446 U.S. 1311 (1980) ...........................................................15
Bowers v. Hardwick, 478 U.S. 186 (1986) ....................................................3, 17
Brown v. Bd. of Educ., 349 U.S. 294 (1955)................................................20, 21
Brewer v. Landrigan, No. 10A416, 562 U.S. ___ (October 26, 2010)...............14
Edwards v. Hope Medical Group, 512 U.S. 1301 (1994)..................................15
Christian Legal Society v. Martinez, ___ U.S. ___, 130 S. Ct. 2971 (2010).....17
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ...........................................16, 17, 18
Elrod v. Burns, 427 U.S. 347 (1976) .................................................................12
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ......................................................15
Hamdi v. Rumsfeld, 542 U.S. 507 (2007) .........................................................15
Hilton v. Braunskill, 481 U.S. 770 (1987) ..........................................................8
Lawrence v. Texas, 539 U.S. 558 (2003)................................................... passim
Nken v. Holder, ___ U.S. ___, 129 S. Ct. 1749 (2009) ..............................8, 9, 15
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) ......................................16, 17
Rostker v. Goldberg, 453 U.S. 57 (1981)...........................................................15
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983)...................................9, 15
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ......................................16, 17
United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008) .....19
Weiss v. United States, 510 U.S. 163 (1994) ....................................................15
Whalen v. Roe, 423 U.S. 1313 (1975)..................................................................9
Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221
(1971) ................................................................................................................8
Winter v. Natural Resources Defense Council, 555 U.S. ___, 129 S. Ct.
365 (2008) .........................................................................................................9
Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) ........ passim
Witt v. Department of the Air Force, 548 F.3d 1264 (9th Cir. 2008) ................4

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Statutes

10 U.S.C. § 654 ................................................................................................1, 3


10 U.S.C. § 654(a)(15)..........................................................................................3
48 U.S.C. § 12181 ..............................................................................................19

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TO THE HONORABLE ANTHONY M. KENNEDY, CIRCUIT JUSTICE FOR

THE NINTH CIRCUIT:

Log Cabin Republicans, plaintiff and appellee below, applies for an

order vacating the Order of the United States Court of Appeals for the Ninth

Circuit in Case No. 10-56634, entered November 1, 2010 (App. 001a–008a),

which stayed pending appeal the judgment of the United States District

Court for the Central District of California in Case No. 04-CV-08425, entered

October 12, 2010 (App. 009a–011a). The district court’s judgment

permanently enjoined the government respondents (the United States and

the Secretary of Defense) from enforcing and applying the “Don't Ask, Don't

Tell” Act, 10 U.S.C. section 654, and its implementing regulations (“DADT”).

Unless the court of appeals’ stay is vacated, the respondents will be free to

continue to investigate and discharge American servicemembers for no

reason other than their homosexuality, in violation of their due process and

First Amendment rights.

Following six years of pretrial proceedings, numerous reasoned interim

orders, and a two-week bench trial, the district court found that “Don't Ask,

Don't Tell” violates American servicemembers’ Fifth Amendment substantive

due process rights under this Court’s holding in Lawrence v. Texas, 539 U.S.

558 (2003), and their First Amendment rights of free speech and petition.

The district court entered a permanent injunction enjoining the government

from enforcing or applying DADT. The district court’s judgment was

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supported by a lengthy Memorandum Opinion (App. 012a–097a), extensive

Findings of Fact and Conclusions of Law (App. 098a–181a), and a detailed

Order Granting Permanent Injunction (App. 182a–196a), all of which

delineated why the judgment was compelled by the evidence at trial.

The government applied to the district court for a stay of its judgment

pending appeal, which was denied (App. 197a–202a). The government

renewed its application in the Ninth Circuit (App. 203a–227a). That court

granted a stay on Monday, November 1, 2010, over a partial dissent.

The Ninth Circuit’s order, however, was an abuse of discretion. It

ignored controlling precedent, including Lawrence. It sidestepped the

requirement that respondents show a likelihood of success on the merits, a

showing they failed to make. It gave no consideration whatsoever to the

injury that will befall the applicant from a stay. And it applied the wrong

standard to respondents’ claim of irreparable injury, which rested entirely on

speculation, by accepting as sufficient the respondents’ “colorable” assertions

of harm and injury, rather than requiring them to show a “likelihood” of

irreparable injury as this Court’s precedents dictate.

Any alleged harms to the government are entirely bureaucratic,

procedural, and transitory in nature, and are sharply outweighed by the

substantial constitutional injury that servicemembers will sustain from a

stay of the district court’s judgment. The court of appeals’ three stated

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reasons for issuing a stay do not withstand minimal scrutiny. The order

should be vacated.

ARGUMENT

A. The Don’t Ask, Don’t Tell statute and the proceedings below.

This case arises on applicant’s facial constitutional challenge to DADT.

That statute, codified at 10 U.S.C. § 654, was enacted in 1993. It mandates

discharge of homosexual personnel in the United States military, pursuant to

regulations issued by the Secretary of Defense, if, inter alia, they have

“engaged in, attempted to engage in, or solicited another to engage in a

homosexual act or acts,” or “stated that he or she is a homosexual or bisexual,

or words to that effect.”1 The ostensible purpose of the statute is to maintain

“high standards of morale, good order and discipline, and unit cohesion that

are the essence of military capability.” See 10 U.S.C. § 654(a)(15).

When DADT was enacted, Bowers v. Hardwick, 478 U.S. 186 (1986),

was the law of the land. But in 2003, this Court overruled Bowers in its

landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that

“[l]iberty presumes an autonomy of self that includes freedom of thought,

belief, expression, and certain intimate conduct,” 539 U.S. at 562, that

“individual decisions by married [and unmarried] persons, concerning the

intimacies of their physical relationship ... are a form of ‘liberty’ protected by

1The district court’s Memorandum Opinion goes into greater detail concerning the
background and provisions of the statute. See App. 057a–059a.

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the Due Process Clause,” id. at 578, and that the state must justify an

intrusion into an individual’s recognized liberty interest, id. After Lawrence,

the Ninth Circuit decided an as-applied challenge to DADT, Witt v.

Department of the Air Force, 527 F.3d 806 (9th Cir. 2008). Witt concluded

that Lawrence requires that DADT be subjected to a heightened level of

constitutional scrutiny, and held that

when the government attempts to intrude upon the


personal and private lives of homosexuals, in a manner
that implicates the rights identified in Lawrence, the
government must advance an important governmental
interest, the intrusion must significantly further that
interest, and the intrusion must be necessary to further
that interest. In other words, for the third factor, a less
intrusive means must be unlikely to achieve substantially
the government’s interest.

Witt, 527 F.3d at 819. Against this backdrop, and under the standard

established in Witt as the law of the Ninth Circuit,2 the district court

conducted the trial here.

At trial, applicant presented more than twenty witnesses, including

seven expert witnesses and six former servicemembers, and introduced over

100 exhibits, including studies showing that sexual orientation is not

germane to military service (App. 134a-135a, 154a). The government called

no witnesses and introduced no evidence other than the legislative history of

2The government did not petition this Court for certiorari in Witt. It did petition the Ninth
Circuit for rehearing and rehearing en banc, which was denied over a lengthy dissent by
Judge O’Scannlain, the senior member of the motions panel that issued the stay order in
question here. Witt v. Department of the Air Force, 548 F.3d 1264, 1265-76 (9th Cir. 2008).

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the statute. It relied solely on the Congressional record and the findings set

forth in the statute to support its position that DADT advances the objectives

of morale, good order and discipline, and unit cohesion. But, as the 17 years

that the statute has been in place have shown, “Don't Ask, Don't Tell” does

not accomplish those objectives, and in fact undermines those objectives. The

district court heard extensive evidence, both documentary and testimonial, as

to how and why that is so, and found after trial that DADT results in: the

discharge of qualified servicemembers despite troop shortages; the discharge

of servicemembers with critically needed skills and training; negative

impacts on recruiting; and the admission of lesser qualified enlistees,

including convicted felons and misdemeanants under “moral waivers” and

recruits lacking required levels of education and physical fitness. The district

court also found that the military routinely acts in ways inconsistent with the

asserted necessity of excluding homosexuals, including by decreasing and

delaying discharges of servicemembers suspected of violating DADT until

after they had completed overseas deployments (see App. 068a–077a).

The evidence at trial, furthermore, included uncontroverted

admissions from officials at the highest level of government that DADT does

not fulfill its stated objectives, including the Secretary of Defense’s admission

that the assertions purportedly justifying DADT’s intrusion on the personal

and private lives of homosexuals “have no basis in fact”; the Chairman of the

Joint Chiefs of Staff’s admissions that he is unaware of any studies or

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evidence suggesting that repeal of DADT would undermine unit cohesion,

and that “allowing homosexuals to serve openly is the right thing to do” and

is a matter of “integrity”; and the admissions of President Obama, the

Commander in Chief, that DADT “doesn’t contribute to our national

security,” “weakens our national security,” and reversing DADT is “essential

for our national security” (see App. 077a–078a, 262a–263a). The government

rebutted none of this showing.

In sum, the district court found, based on the uncontroverted evidence

at trial, that “the effect of the Act has been, not to advance the Government’s

interest of military readiness and unit cohesion, much less to do so

significantly, but to harm that interest” (App. 076a). In addition, the district

court found that DADT infringes on servicemembers’ First Amendment

rights in two distinct ways: it imposes content-based restrictions on their

speech, since heterosexuals are free to discuss their sexual orientation (and

thus their personal lives) while homosexuals are not; and it chills their ability

to complain of harassment and to openly join organizations that seek to

change the military’s policy, thereby preventing them from petitioning the

government for redress of grievances (see App. 091a–096a). DADT thus

requires discharge for pure speech, not merely for conduct; the district court

specifically found that “the sweeping reach of the restrictions on speech in the

Don't Ask, Don't Tell Act is far broader than is reasonably necessary to

protect the substantial government interest at stake here” (App. 093a).

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Accordingly, the district court found that DADT violated both

servicemembers’ Fifth Amendment due process rights, and their First

Amendment rights to freedom of speech and to petition the Government for

redress of grievances. The district court declared DADT unconstitutional for

both those reasons, and permanently enjoined the respondents from enforcing

or applying DADT (App. 009a–011a).

Respondents appealed the district court’s judgment, and concurrently

applied to the district court for a stay of its judgment pending appeal. The

district court denied the application. It held that the only evidence submitted

by respondents, a declaration from a civilian official in the Defense

Department, was conclusory, vague, and belied by the evidence at trial that

respondents had chosen not to rebut, and found specifically that respondents

had not demonstrated a likelihood of success on the merits, had not shown

that the appeal presented a serious legal question, and had not shown a

likelihood that they would suffer irreparable harm (App. 198a–201a).

Respondents then moved in the court of appeals for the same relief,

supported by the same declaration. While professing to express no opinion on

the constitutional validity of DADT – and therefore bypassing any finding of

respondents’ likelihood of success on the merits – the court of appeals granted

respondents’ motion, over a partial dissent by Judge William Fletcher who

would have allowed the district court’s judgment to remain in effect insofar

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as it enjoins the respondents from actually discharging any servicemember

pursuant to DADT during the pendency of the appeal (App. 007a–008a).

This application seeks to vacate the court of appeals’ stay order and

reinstate the district court’s judgment into full effect.

B. A stay of the district court’s order is not a matter of right, and


respondents failed to make the required showing for a stay.

A stay of injunction is “extraordinary relief” for which the moving

party bears a “heavy burden.” Winston-Salem/Forsyth County Bd. of Educ. v.

Scott, 404 U.S. 1221, 1231 (1971) (Burger, C.J., in chambers) (denying stay of

desegregation order). “‘A stay is not a matter of right, even if irreparable

injury might otherwise result.’ It is instead ‘an exercise of judicial discretion,’

and … the party requesting a stay bears the burden of showing that the

circumstances justify an exercise of that discretion.” Nken v. Holder, ___ U.S.

___, 129 S. Ct. 1749, 1760-61 (2009) (citations omitted).

A stay of a district court judgment, including stay of injunction,

pending appeal is governed by four factors: (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. Hilton v. Braunskill,

481 U.S. 770, 776 (1987). These are the same four factors that must be

shown by a party moving for a preliminary injunction, “because similar

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concerns arise whenever a court order may allow or disallow anticipated

action before the legality of that action has been conclusively determined.”

Nken, supra, 129 S. Ct. at 1761. The moving party must show the existence

of all four factors and must show not merely the “possibility” of irreparable

injury absent a stay – “colorable allegations,” as the court of appeals here

phrased it (App. 005a-006a) – but the likelihood of irreparable injury. Winter

v. Natural Resources Defense Council, 555 U.S. ___, 129 S. Ct. 365, 375

(2008) (rejecting the Ninth Circuit’s earlier “possibility” standard). The

Ninth Circuit ignored these requirements.

C. The court of appeals completely failed to balance the hardships, or to


take into account at all the injury to applicant that a stay causes.

The most glaring omission from the court of appeals’ order – and this

flaw alone compels vacation of that order – is its lack of analysis of the harms

to both parties that would follow from a stay of the district court’s judgment.3

The court of appeals’ order relies entirely on respondents’ assertions of the

harm to the military that they claim would be caused by the lack of an

“orderly transition” to a post-DADT world. Other than this asserted need for

an orderly transition, respondents do not contend that an end to DADT would

harm the military, and such a contention would contradict admissions by the

nation’s highest military leaders in any case. Regardless, the court of

3 If, as here, the party requesting a stay fails to show irreparable injury from denial of a stay,
likelihood of success on the merits need not even be considered and the stay is properly
denied. Ruckelshaus v. Monsanto, 463 U.S. 1315, 1316-17 (1983), citing Whalen v. Roe, 423
U.S. 1313, 1316-17 (1975) (Marshall, J., in chambers); that is particularly the case when the
granting of a stay might cause irreparable harm to the opposing party. Monsanto at 1317.

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appeals did not even address, much less weigh in the balance, the nature of

the injury to applicant and to homosexual American servicemembers that

will result from the issuance of a stay.

Respondents’ claim that the military will be harmed if the district

court’s injunction remains in place pending appeal is entirely based on the

military’s asserted need to prepare new policies, regulations, training, and

guidance. See App. 002a-003a. But the district court’s injunction does not

require the military to take any affirmative measures: it does not order the

military to redesign its barracks, to retool its pay scales or benefits, to re-

ordain its chaplains, to rewrite its already extensive anti-harassment or

“dignity and respect” rules, or anything else. Nor does it prevent the military

from undertaking the acts respondents argued it must do if DADT is enjoined

– revising policies, preparing educational and training materials, and the

like.4 The district court’s injunction requires only one thing: to cease

investigating and discharging servicemembers for reasons unrelated to their

performance and military ability, including for exercising their freedom of

thought, belief, expression, and certain intimate conduct.

With the injunction in place, nothing will change with regard to the

composition of the military, the training, promotion, demotion, and

deployment of servicemembers, the mission and operations of the armed

4The injunction does not even prevent the military from warning current and prospective
homosexual servicemembers that the current legal environment is uncertain, and letting
them reach their own decisions whether to enlist or disclose their sexual orientation.

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forces, or anything else that pertains to the important governmental interest

that the military serves. As the district court recognized from the evidence at

trial, homosexual men and women already serve today. They are deployed to

theaters of combat when needed – indeed, retained overall in greater

numbers during times of combat – even if they are openly homosexual. It is

their discharge, not their presence, that impacts morale and good order. As

the district court held, “[f]ar from furthering the military's readiness, the

discharge of these service men and women had a direct and deleterious effect

on this governmental interest.” App. 071a. The evidence at trial “directly

undermine[d] any contention that the Act furthers the Government’s purpose

of military readiness,” App. 076a; and respondents admitted – in public

statements of the President and the Chairman of the Joint Chiefs of Staff –

that “far from being necessary to further significantly the Government’s

interest in military readiness, the Don't Ask, Don't Tell Act actually

undermines that interest.” See App. 077a. The uncontroverted evidence at

trial established that enjoining the enforcement of DADT, far from injuring

respondents, will actually improve morale, readiness, cohesion, and overall

military effectiveness.

The supposed “injury” to the military that the government claims

would result from the district court’s injunction is entirely to the military’s

institutional interests and its bureaucratic needs; and it is entirely

temporary, lasting only until the “orderly transition” can be completed. This

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is not “irreparable injury” of the type that must be shown for a stay. And the

injury to applicant and to all American servicemembers from granting a stay

is both immediate and truly irreparable.

If the court of appeals’ stay order remains in place, the government

will continue to investigate and discharge homosexual servicemembers under

DADT.5 Such investigations and discharges have been found to violate

servicemembers’ due process and First Amendment rights, and deprivation of

constitutional rights is ipso facto irreparable injury. See Elrod v. Burns, 427

U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury”). The

Ninth Circuit’s order does not address at all the issue of this constitutional

injury to applicant and to homosexual servicemembers.

By contrast, maintaining the injunction in place pending appeal

preserves servicemembers’ constitutional rights. They will continue to be

held to the military standards applicable to all servicemembers, and subject

to the same discipline and regulations that apply to all. But the ill effects to

homosexual servicemembers of the stay – disruption and termination of their

military careers, with merely the hollow satisfaction of abstract vindication

when the district court’s judgment is ultimately upheld – are irreparable.

These individuals may not be reinstated, even if reinstatement could make

5DADT is that rara avis, a statute that goes beyond merely not protecting individuals
against discrimination on some basis, but actually mandates discrimination on that basis.

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them whole for the deprivation of constitutional rights they would have

suffered. The concrete injury to them from an illegitimate stay of the

injunction far outweighs the theoretical harm to the government that might

result from maintaining the injunction in place during the appeal process,

and tips the balance of hardships sharply in favor of applicant.

Witnesses at trial – men and women, officers and enlisted personnel,

from multiple branches of the service – presented powerful testimony of the

effects of DADT on their personal lives, the lives of their unit comrades, and,

most importantly, on the performance of their units. They are American

heroes. Compelled by DADT to lie and dissemble about their human nature,

subjected to unredressable humiliations, forced out of careers in which they

were commended and decorated: these witnesses proved that DADT causes,

every day that it remains in force, irreparable injury to American

servicemembers. In a conflict between bureaucratic concerns and

preventable human suffering caused by violation of constitutional rights,

there can be no doubt which way the balance of hardships tips.6

6 In this regard, four amicus curiae briefs were filed with the court of appeals, which
described in great detail the harms to servicemembers and others, including to the public at
large. The court of appeals did not address the amicus briefs, and failed to take the harms
they demonstrated into the balance as well.

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D. The court of appeals’ order ignored both the uncontroverted evidence
and controlling precedent to reach a result-oriented outcome.

The court of appeals reached its result-oriented outcome by ignoring

the four-factor test that this Court has held must govern a stay order.

Instead, it selectively invoked three concepts – the presumption of

constitutionality accorded to acts of Congress, deference to military

judgment, and inter-circuit comity – and issued a stay on the basis of those

concepts. In doing so, the court of appeals conflated the success on the merits

factor with the irreparable harm and substantial injury factors, but

disregarded Log Cabin’s evidentiary showing altogether, relied exclusively on

the speculative evidence proffered by the government,7 and paid only lip

service to the required balancing analysis. Worse, the court of appeals failed

even to mention Lawrence v. Texas, or its own decision in Witt v. Air Force.

1. A presumption of constitutionality does not trump a balancing of


the equities.

First, the court of appeals took it as given that “Acts of Congress are

presumptively constitutional,” and gave that equity heavy weight in favor of

respondents. App. 003a. But the court of appeals ignored the body of law

holding that where the balance of equities weighs in favor of those who

successfully challenge the constitutionality of a statute, a stay of an

injunction against enforcement of that statute is unwarranted. E.g.,

7Speculation is insufficient support for a stay of a lower court order, for speculation cannot
substitute for the evidence necessary to show irreparable harm. Cf. Brewer v. Landrigan,
No. 10A416, 562 U.S. ___ (October 26, 2010) (vacating lower court’s temporary restraining
order that was based on speculation as to risk of harm).

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Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316-17 (1983) (Blackmun, J.,

in chambers) (denying stay of injunction against enforcement of certain

provisions of FIFRA which respondent claimed constituted an

unconstitutional taking of its property, and noting that the granting of a stay

“might well cause irreparable harm to [respondent]”).8

2. Deference to military judgment does not outweigh constitutional


rights.

Second, the court of appeals accepted respondents’ argument that

deference to military judgment essentially forecloses judicial evaluation of

military policies, ignoring both this Court’s teachings and its own precedents

which caution against blind deference to military judgment. App. 004a. As

the district court correctly recognized throughout the proceedings below, the

military is not immune to the demands of the Constitution. “Congress, of

course, is subject to the requirements of the Due Process Clause when

legislating in the area of military affairs....” Weiss v. United States, 510 U.S.

163, 176 (1994); and, as the Ninth Circuit itself recognized in this very

context, “deference does not mean abdication.” Witt, 527 F.3d at 821, citing

Rostker v. Goldberg, 453 U.S. 57, 70 (1981). See also Hamdi v. Rumsfeld, 542

U.S. 507, 527, 533-34 (2004); Hamdan v. Rumsfeld, 548 U.S. 557, 588 (2006).

8 See also Blum v. Caldwell, 446 U.S. 1311, 1315-16 (1980) (Marshall, J., in chambers) (state
statute) and additional cases cited in Nken, 129 S. Ct. at 1763-64 (Kennedy, J., concurring);
cf. Edwards v. Hope Medical Group, 512 U.S. 1301 (1994) (Scalia, J., in chambers) (“The
practice of the Justices has consistently been to grant a stay only when three conditions
obtain. There must be a reasonable probability that certiorari will be granted, a significant
possibility that the judgment below will be reversed, and a likelihood of irreparable harm
(assuming the applicants’ position is correct) if the judgment below is not stayed”).

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Congress cannot subvert the guarantees of the Constitution merely

because it is legislating in the area of military affairs. While the doctrine of

military deference may be an important consideration when the Ninth

Circuit considers the merits of this case, the court of appeals abused its

discretion by allowing that doctrine to control the decision whether to stay

the district court’s judgment here. This error is particularly egregious

because respondents presented no evidence to support a finding that open

service by gay and lesbian individuals harmed the military’s interests, and

because both civilian and military leaders admitted that DADT actually

impairs military interests. Deference to military judgment here tips the

scales against a stay, rather than in favor of one.

3. The court of appeals incorrectly ignored controlling law and


claimed that an injunction would interfere with the
pronouncements of other circuits.

Finally, the court of appeals based its issuance of a stay on the

observation that the district court’s judgment was “arguably at odds” with

decisions of four other circuits outside the Ninth Circuit, and that therefore

“principles of comity” require that courts in the Ninth Circuit should not

grant relief that would interfere with the pronouncements of sister circuits

(see App. 004a–005a).

The sister-circuit cases that the court referred to were Cook v. Gates,

528 F.3d 42 (1st Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir.

1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v.

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Perry, 80 F.3d 915 (4th Cir. 1996) (en banc). Able, Richenberg, and

Thomasson, however, all predated this Court’s decision in Lawrence v. Texas.

Indeed, Richenberg, the only case that analyzed DADT under the Due

Process Clause, expressly relied on the now-overruled Bowers v. Hardwick.

97 F.3d at 260-62. Moreover, Able, 528 F.3d at 635, Richenberg, 97 F.3d at

261, and Thomasson, 80 F.3d at 928-29, all relied on a distinction between

homosexual status and the propensity to engage in homosexual conduct, a

distinction this Court has since repudiated. “Our decisions have declined to

distinguish between status and conduct” in the context of homosexuals

because private consensual intimate conduct with members of the same sex is

“closely correlated with being homosexual.” Christian Legal Society v.

Martinez, ___ U.S. ___, 130 S. Ct. 2971, 2990 (2010) (citing Lawrence).

The conclusion in these cases that DADT did not violate the Fifth

Amendment therefore rested on outdated and repudiated constitutional

analysis. And Cook v. Gates, a First Circuit decision, is not controlling in the

Ninth Circuit and could not override the Ninth Circuit’s own precedent.

While Cook v. Gates was decided after Lawrence, it explicitly disagreed with

Witt; moreover, Cook was decided on an appeal from a motion to dismiss,

without the benefit of the extensive evidence that the district court here

heard and considered at a full trial. Cook’s analysis is inconsistent with

Witt’s; but the motions panel here, like the district court below it, was bound

to follow Witt as the law of its circuit.

- 17 -
The court of appeals belittled applicant’s position regarding these out-

of-circuit cases by characterizing it as contending that the cases were merely

“irrelevant” to the analysis. But applicant had shown that those cases are

irrelevant because they are either bad law today, or, in the case of Cook,

because they contradict existing, binding, in-circuit precedent. The Ninth

Circuit ignored those defects. Its order does not discuss or even mention

Lawrence; the motions panel completely ignored the impact of that case on

the issue confronting it. Furthermore, and inexplicably, even while it cited

these out-of-circuit cases, the Ninth Circuit nowhere even mentioned its own

decision, Witt v. Air Force, and thereby failed to take account of the fact that

the district court’s judgment here was squarely in line with that controlling

post-Lawrence Ninth Circuit precedent. The court of appeals’ reliance on out-

of-circuit cases, especially cases whose analytical underpinnings have been

overruled, to the exclusion of controlling in-circuit precedent, to justify the

stay here is another example of how the order is arbitrary and an abuse of

discretion.

Moreover, comity is not a factor in determining whether a stay of

injunction is appropriate, nor do mere considerations of comity permit the

perpetuation of a denial of constitutional rights in the name of avoiding

interference with judicial pronouncements. Whatever may be the merits of

comity in the context of statutory construction – where, for example, our legal

system tolerates differing rules in different circuits for issues of the law of

- 18 -
bankruptcy, securities, antitrust, tax, and the like – it can hold no sway on

issues of constitutional rights.9 An individual’s constitutional rights must

outweigh considerations of comity. Principles of comity did not justify the

Ninth Circuit in acquiescing in other courts’ erroneous failures to find that

DADT violates the Constitution, particularly when the district court’s

decision was specifically based on the standard established in Witt, which

controls in the Ninth Circuit. In effect, the Ninth Circuit motions panel here

erroneously used respondents’ motion to stay as a vehicle to ignore Lawrence

and tacitly overrule Witt – a step it could not take.

E. At a minimum, discharges under DADT must be suspended.

The military’s claimed need for an “orderly transition” to an end of

DADT relies on an assumption that Congress will repeal the statute following

a report by the Department of Defense due on December 1 of this year. But

what the district court recognized, and the court of appeals did not, is that

reliance on Congressional repeal is pure speculation.10

9 The only case on which the court of appeals rested its comity analysis, United States v.
AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008), was a statutory construction case
involving Title III of the Americans With Disabilities Act (48 U.S.C. §§ 12181 et seq.), not a
constitutional case.
10 While the 2011 National Defense Authorization Act as passed by the House (H.R. 5136)

includes repeal language, the bill was filibustered in the Senate and never reached a floor
vote. No date is scheduled for another Senate vote, there is no assurance that there will not
be another filibuster, and there is no assurance that the lame-duck Senate will pass the
legislation, particularly given the results of Tuesday’s election. Even if the legislation passes
the Senate, it is still subject to reconciliation of the differing Senate and House versions of
the bill and Presidential approval. Even then repeal of DADT is still conditional on multiple
events, including a written certification, signed by the President, the Secretary of Defense,
and the Chairman of the Joint Chiefs of Staff, that they have considered the military
working group recommendations and proposed plan of action (which may not even

- 19 -
There is no reason an orderly transition cannot occur in connection

with judicial action. This Court has not hesitated in the past to order that

unconstitutional regimes be transitioned out of existence under judicial

oversight, and not through an uncertain political process. E.g., Brown v. Bd.

of Educ., 349 U.S. 294, 298-301 (1955).

From the foregoing, it is apparent that the irreparable harm to

applicant and to all homosexual American servicemembers from staying the

district court’s judgment sharply outweighs the speculative bureaucratic

consequences to the military from implementation of that judgment. But

even if an “orderly transition” is the touchstone, there is no reason the

government should not be required to make a “prompt and reasonable start

toward full compliance” and to complete the transition with “all deliberate

speed.” See id. at 300, 301. This is particularly so when the government’s

claimed harm is merely from too quick a transition, not from the eventual

end of the transition itself.

Indeed, Judge Fletcher, dissenting from the stay order here, would

have required a form of prompt and reasonable start to the orderly transition:

recommend repeal); that the Defense Department has prepared necessary policies and
regulations, and that the implementation of those policies and regulations is consistent with
the standards of military readiness, military effectiveness, unit cohesion, and recruiting and
retention of the Armed Forces. All that is no small task, and repeal would not take place
until 60 days after the last of all those events occurs; and the pending legislation also
specifically provides that DADT “shall remain in effect” until these requirements and
certifications are met and, if they are not met, DADT “shall remain in effect.” It is
completely unknown – respondents provided no evidence to either the district court or the
court of appeals – whether or when any of these events may occur.

- 20 -
a moratorium on DADT discharges pending resolution of the appeal. Such a

moratorium, implemented immediately under the oversight of the district

court, would be consistent with the method approved in Brown and would

protect, at least in part, the liberty interests to which all American

servicemembers are entitled under Lawrence.

CONCLUSION

The Ninth Circuit’s order staying the district court’s judgment and

injunction is unsupported by evidence, based entirely on speculation, and

devoid of analysis of the factors governing a stay pending appeal and the

important constitutional issues at stake. It altogether ignored applicant’s

showing of irreparable harm. This Court should vacate the stay and

reinstate the district court’s judgment in full force and effect.

November 5, 2010 WHITE & CASE LLP


633 West Fifth Street, Suite 1900
Los Angeles, California 90071
Telephone: (213) 620-7700
Facsimile: (213) 452-2329
Dan Woods
dwoods@whitecase.com
Counsel of Record
Earle Miller
emiller@whitecase.com
Aaron A. Kahn
aakahn@whitecase.com
Attorneys for Applicant

- 21 -
CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, counsel for Log Cabin

Republicans certifies that Log Cabin Republicans is a not-for-profit

corporation organized pursuant to the District of Columbia Nonprofit

Corporation Act and section 501(c)(4) of the Internal Revenue Code. Log

Cabin Republicans issues no stock and has no parent corporation. No

publicly-held corporation owns ten percent or more of the stock of Log Cabin

Republicans.

- 22 -
No. 10A–_______

In the
Supreme Court of the United States

LOG CABIN REPUBLICANS,

Applicant,
vs.

UNITED STATES OF AMERICA and ROBERT M. GATES,


SECRETARY OF DEFENSE, in his official capacity,

Respondents.

ON APPLICATION TO VACATE AN ORDER OF THE


UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO APPLICATION TO VACATE ORDER


STAYING JUDGMENT AND PERMANENT INJUNCTION

Dan Woods
dwoods@whitecase.com
Counsel of Record
Earle Miller
emiller@whitecase.com
WHITE & CASE LLP
633 West Fifth Street, Suite 1900
Los Angeles, California 90071
Telephone: (213) 620-7700
Facsimile: (213) 452-2329
Attorneys for Applicant
TABLE OF CONTENTS

Page

Order (9th Cir. November 1, 2010)………...................................001a

Judgment & Permanent Injunction (C.D. Cal. October 12,


2010)……………………………………………………………………009a

Amended & Final Memorandum Opinion (C.D. Cal. October


12, 2010)........................................................................................012a

Findings of Fact & Conclusions of Law After Court Trial


(C.D. Cal. October 12, 2010).........................................................098a

Order Granting Permanent Injunction (C.D. Cal. October


12, 2010)........................................................................................182a

Amended Order Denying Defendants’ Ex Parte Application


for Entry of An Emergency Stay (C.D. Cal. October 20, 2010)...197a

Government’s Emergency Motion for Stay pending Appeal


Under Circuit Rule 27-3 and for Temporary Administrative
Stay (9th Cir. October 20, 2010)...................................................203a

Preliminary Response of Appellee Log Cabin Republicans to


Government’s Request for Temporary “Administrative”
Stay (9th Cir. October 20, 2010)...................................................228a

Order (9th Cir. October 20, 2010).................................................246a

Response of Appellee Log Cabin Republicans to Government’s


Emergency Motion for Stay (9th Cir. October 25, 2010)..............247a

LOSANGELES 885265 (2K) -i-


App. 001a
App. 002a
App. 003a
App. 004a
App. 005a
App. 006a
App. 007a
App. 008a
Case 2:04-cv-08425-VAP-E Document 252 Filed 10/12/10 Page 1 of 3 Page ID #:7787

1
2
3
4 JS-6
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 (Ex)
non-profit corporation, )
12 ) JUDGMENT AND PERMANENT
Plaintiff, ) INJUNCTION
13 )
v. )
14 )
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
________________________ )
18 )
19
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20
This action was tried by Judge Virginia A. Phillips without a jury on July
21
13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on
22
September 9, 2010 (Doc. 232), and an Amended & Final Memorandum
23
Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010.
24
For all the reasons set forth therein, the Court:
25
26
27
28

App. 009a
Case 2:04-cv-08425-VAP-E Document 252 Filed 10/12/10 Page 2 of 3 Page ID #:7788

1 (1) DECLARES that the act known as "Don't Ask, Don't Tell"1 infringes
2 the fundamental rights of United States servicemembers and prospective
3 servicemembers and violates (a) the substantive due process rights
4 guaranteed under the Fifth Amendment to the United States Constitution, and
5 (b) the rights to freedom of speech and to petition the Government for redress
6 of grievances guaranteed by the First Amendment to the United States
7 Constitution.
8
9 (2) PERMANENTLY ENJOINS Defendants United States of America
10 and the Secretary of Defense, their agents, servants, officers, employees,
11 and attorneys, and all persons acting in participation or concert with them or
12 under their direction or command, from enforcing or applying the "Don't Ask,
13 Don't Tell" Act and implementing regulations, against any person under their
14 jurisdiction or command;
15
16 (3) ORDERS Defendants United States of America and the Secretary of
17 Defense immediately to suspend and discontinue any investigation, or
18 discharge, separation, or other proceeding, that may have been commenced
19 under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its
20 implementing regulations, on or prior to the date of this Judgment.
21
22 (4) GRANTS Plaintiff Log Cabin Republicans' request to apply for
23 attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
24 2412; and
25
1
26 Codified in statute at 10 U.S.C. § 654 and implemented by regulations
comprising Department of Defense Directives 1332.14 (1993), 1332.30
27 (1997), and 1304.26 (1993), as modified by Department of Defense
Instructions 1332.14 (2008) (incorporating March 29, 2010 changes) and
28 1332.30 (2008) (incorporating March 29, 2010 changes).
2

App. 010a
Case 2:04-cv-08425-VAP-E Document 252 Filed 10/12/10 Page 3 of 3 Page ID #:7789

1
2 (5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion
3 for costs of suit, to the extent allowed by law.
4
5 IT IS SO ORDERED.
6
7
8 Dated: October 12, 2010
VIRGINIA A. PHILLIPS
9 United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

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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 (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

App. 012a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 2 of 86 Page ID #:7618

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.)
1

App. 013a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 3 of 86 Page ID #:7619

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).
2

App. 014a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 4 of 86 Page ID #:7620

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
3

App. 015a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 5 of 86 Page ID #:7621

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
4

App. 016a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 6 of 86 Page ID #:7622

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
5

App. 017a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 7 of 86 Page ID #:7623

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
6

App. 018a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 8 of 86 Page ID #:7624

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
7

App. 019a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 9 of 86 Page ID #:7625

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
8

App. 020a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 10 of 86 Page ID #:7626

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
9

App. 021a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 11 of 86 Page ID #:7627

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
10

App. 022a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 12 of 86 Page ID #:7628

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
11

App. 023a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 13 of 86 Page ID #:7629

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.
12

App. 024a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 14 of 86 Page ID #:7630

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
13

App. 025a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 15 of 86 Page ID #:7631

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
14

App. 026a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 16 of 86 Page ID #:7632

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
15

App. 027a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 17 of 86 Page ID #:7633

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

App. 028a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 18 of 86 Page ID #:7634

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
17

App. 029a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 19 of 86 Page ID #:7635

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
18

App. 030a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 20 of 86 Page ID #:7636

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
19

App. 031a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 21 of 86 Page ID #:7637

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
20

App. 032a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 22 of 86 Page ID #:7638

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

App. 033a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 23 of 86 Page ID #:7639

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

App. 034a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 24 of 86 Page ID #:7640

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."
23

App. 035a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 25 of 86 Page ID #:7641

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
24

App. 036a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 26 of 86 Page ID #:7642

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
25

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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
26

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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
27

App. 039a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 29 of 86 Page ID #:7645

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
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
29

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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
30

App. 042a
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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.)
31

App. 043a
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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.)
28
32

App. 044a
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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
28
33

App. 045a
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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
34

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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
28
35

App. 047a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 37 of 86 Page ID #:7653

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
28
36

App. 048a
Case 2:04-cv-08425-VAP-E Document 250 Filed 10/12/10 Page 38 of 86 Page ID #:7654

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
37

App. 049a
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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,
28
38

App. 050a
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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.)
28
39

App. 051a
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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
28
40

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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.)
28
41

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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
28
42

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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
25
26
27
28
43

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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
44

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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
45

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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
46

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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).
47

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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
48

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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
49

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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
50

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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
51

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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
52

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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
53

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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
54

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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
55

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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
56

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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).)
57

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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.)
58

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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
59

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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.
60

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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
61

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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.)
62

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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
63

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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
64

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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
65

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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
66

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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
67

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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
68

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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
69

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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
70

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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.)
71

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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
72

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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
73

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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
74

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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
75

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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
76

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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
77

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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
28
78

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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
28
79

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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
28
80

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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
81

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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
28
82

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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
83

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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
17 speech more than reasonably necessary to protect the Government's
18 interests.
19
20 Finally, it again must be noted that Defendants called no witnesses, put
21 on no affirmative case, and only entered into evidence the legislative history
22 of the Act. This evidence, discussed in Section IV(C)(1) above, does not
23 suffice to show the Act's restrictions on speech are "no more than is
24 reasonably necessary" to achieve the goals of military readiness and unit
25 cohesion. (See supra Section IV(C)(1).)
26
27
28
84

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1 For these reasons, Plaintiff is also entitled to judgment on its claim for
2 violation of the First Amendment's guarantees of freedom of speech and
3 petition.
4
5 VI. CONCLUSION
6 Throughout the consideration and resolution of this controversy, the
7 Court has kept well in mind the overriding principle that "judicial deference to
8 such congressional exercise of authority is at its apogee when legislative
9 action under the congressional authority to raise and support armies and
10 make rules and regulations for their governance is challenged." Rostker, 453
11 U.S. at 70. Nevertheless, as the Supreme Court held in Rostker, "deference
12 does not mean abdication." Id. at 67, 70. Plaintiff has demonstrated it is
13 entitled to the relief sought on behalf of its members, a judicial declaration
14 that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments,
15 and a permanent injunction barring its enforcement.
16
17
18 IT IS SO ORDERED.
19
20
21 Dated: October 12, 2010
VIRGINIA A. PHILLIPS
22 United States District Judge
23
24
25
26
27
28
85

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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 (Ex)
non-profit corporation, )
12 )
Plaintiff, ) FINDINGS OF FACT &
13 ) CONCLUSIONS OF LAW AFTER
v. ) COURT TRIAL [Fed. R. Civ. P. 52]
14 )
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
_________________________ )
18 )
19
20 This case was tried to the Court on July 13 through 16 and July 20
21 through 23, 2010. After conclusion of the evidence and closing arguments on
22 July 23, 2010, both sides timely submitted supplemental post-trial briefing on
23 the admissiblility of a pretrial declaration submitted by Log Cabin Republicans
24 member John Doe,1 and the matter stood submitted.
25
26 1
The Court overruled Defendants' objections to Exhibit 38, the April 27,
2006. Declaration of John Doe, and considers the statements contained
27 therein regarding Doe's then-present state of mind for the limited purpose for
28 (continued...)
1

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1 Having considered all the evidence presented by the parties, as well as the
2 argument and briefing by counsel, the Court makes the following Findings of
3 Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
4
5 FINDINGS OF FACT2
6 1. Plaintiff Log Cabin Republicans ("Log Cabin," "LCR," or "Plaintiff") is a
7 non-profit corporation founded in 1977 and organized under the laws of
8 the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of
9 Incorporation].)
10 2. Plaintiff's mission includes "assist[ing] in the development and
11 enactment of policies affecting the gay and lesbian community . . . by
12 [the] federal government[]. . . and advocat[ing] and support[ing] . . .
13 activities or initiatives which (i) provide equal rights under law to
14 persons who are gay or lesbian, [and] (ii) promote nondiscrimination
15 against or harassment of persons who are gay or lesbian . . . ." (Trial
16 Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief
17 sought here, i.e., the ability of homosexual servicemembers to serve
18 openly in the United States Armed Forces through repeal of the Don't
19 Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission.
20 3. Plaintiff filed its Complaint on October 12, 2004. (Doc. No. 1.) It filed a
21 First Amended Complaint ("FAC") on April 28, 2006. (Doc. No. 25.)
22
23
24
1
25 (...continued)
which they were offered, i.e., Doe's state of mind with respect to whether the
26 Act chilled his speech and ability to petition the government for a redress of
grievances. See Fed. R. Evid. 803(3).
27 2
To the extent any of the Findings of Fact should more properly be
28 considered Conclusions of Law, they shall be deemed as such.
2

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1 4. Plaintiff seeks only declaratory and injunctive relief in its First Amended
2 Complaint; neither its claims nor the relief sought require individualized
3 proof on the part of its members.
4
5 John Doe’s Standing
6 5. John Doe serves as a lieutenant colonel in the United States Army
7 Reserve. He joined Log Cabin Republicans in early September 2004
8 by completing an application form (using a pseudonym) and paying
9 annual dues through Martin Meekins, then a member of Plaintiff's
10 national board of directors. Meekins accepted the application form and
11 dues payment from Doe and forwarded them to LCR's national
12 headquarters. (Trial Ex. 38.)
13 6. Doe arranged to pay his membership dues in this manner because he
14 feared he would be discharged from the Army Reserve pursuant to the
15 Don't Ask, Don't Tell Act if he joined the organization openly, using his
16 true name. Id.
17 7. Thus, at the time the Complaint was filed on October 12, 2004, John
18 Doe was a member in good standing of Plaintiff Log Cabin
19 Republicans.
20 8. To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual
21 orientation a secret from his coworkers, his unit, and his military
22 superiors, and he may not communicate the core of his emotions and
23 identity to others in the same manner as heterosexual members of the
24 military, on pain of discharge from the Army. (Doc. No. 212 ["July 6,
25 2010, Order"] at 16; Trial Ex. 38.)
26 9. Doe paid annual membership dues shortly before this action was filed
27 in October 2004, but LCR did not introduce evidence showing Doe paid
28
3

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Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 4 of 84 Page ID #:7706

1 dues, or otherwise made a financial contribution, to the organization


2 after 2004.
3 10. The evidence was conflicting regarding the effect of a member's
4 nonpayment of dues. James Ensley testified that when a member
5 failed to renew his or her annual dues payment, Log Cabin Republicans
6 viewed the member as a "former" or "inactive" member, but the name
7 would not be stricken from LCR's membership rolls or electronic
8 database simply because of tardiness in paying annual dues. (Trial Tr.
9 74:12-75, July 13, 2010.) Terry Hamilton, another member of the
10 national board of directors, testified that a member who failed to renew
11 his or her membership timely no longer would be considered a member,
12 but his testimony did not contradict Ensley's testimony regarding the
13 mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 2010.)
14 11. Despite the lack of evidence that Doe had paid annual membership
15 dues to LCR after 2004, he still served in the Army Reserve and still
16 was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he
17 still had a personal stake in the outcome of the case, and his injury –
18 his susceptibility to discharge under the Act – continued to be
19 redressable by favorable resolution of the lawsuit.
20
21 John Nicholson’s Standing
22 12. John Alexander Nicholson, III, enlisted in the United States Army in
23 May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As detailed below, he
24 received an honorable discharge from the Army on March 22, 2002,
25 pursuant to the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3,
26 1185:22-1187:9, July 20, 2010.)
27
28
4

App. 101a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 5 of 84 Page ID #:7707

1 13. In August 2005, Nicholson and others embarked on a nationwide


2 speaking tour sponsored by LCR to raise awareness of the movement
3 to repeal the Don't Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July
4 21, 2010.)
5 14. LCR's national and Georgia state chapter leaders asked Nicholson to
6 join the organization formally after he gave a speech at LCR's national
7 convention on April 28, 2006; he did not pay dues or make a cash
8 contribution at that time, but was told his membership was granted in
9 exchange for his services to the organization. (Trial Tr. 1207:22-
10 1208:25, 1211:25-1212:15, July 21, 2010.) Later he was told his was
11 an honorary membership. (Trial Tr. 1211:10-12, 1214:13-15, July 21,
12 2010.)
13 15. Nicholson testified credibly that he did not complete a paper
14 membership application form on April 28, 2006, because he gave the
15 necessary information to an LCR administrative assistant who entered it
16 directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.)
17 Plaintiff maintains an electronic database of its membership which lists
18 Nicholson as a member of Log Cabin Republicans as of April 28, 2006.
19 (Trial Tr. 1209:20-22, 1212:16-1213:16, July 21, 2010.) Nicholson
20 testified that he remembered the precise date Log Cabin's Georgia
21 chapter granted him honorary membership because it was the same
22 day he addressed LCR's national convention. (Trial Tr. 1208:11-15,
23 1210:11-1212:15, July 21, 2010.)
24 16. The testimony of James Ensley, President of LCR's Georgia chapter
25 since 2006 and a member of its national board of directors since 2008,
26 corroborated Nicholson's testimony regarding the date he became a
27 member of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) The Georgia
28
5

App. 102a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 6 of 84 Page ID #:7708

1 chapter conferred honorary membership on Nicholson at the 2006 Log


2 Cabin Republicans national convention, in recognition of his
3 "remarkable" efforts on the nationwide speaking tour and on college
4 campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-
5 16, July 13, 2010.)
6 17. Ensley specifically recalled the date the Georgia chapter conferred
7 honorary membership on Nicholson because Ensley's congressman
8 had arranged a private tour of the White House for Ensley on the
9 morning of April 28, 2006, which was the same day Nicholson
10 addressed the convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The
11 Court found Ensley to be a candid and credible witness.
12 18. Terry Hamilton is a 25-year member of Log Cabin Republicans and now
13 serves as chairman of its national board of directors. (Trial Tr. 33:11-
14 35:22, July 13, 2010.) He verified that the organization's membership
15 records reflected Nicholson's membership status since April 28, 2006,
16 and also that Nicholson regularly attended and spoke at the
17 organization's annual conventions. (Trial Tr. 43:14-45:1, July 13, 2010.)
18 Based on these indicia, Hamilton understood Nicholson to be a member
19 of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 2010.)
20 The Court found Hamilton a credible and reliable witness.
21 19. Thus, Nicholson officially joined Log Cabin Republicans on April 28,
22 2006, and has been a member continuously since then. (Trial Tr.
23 1208:11-15, 1214:24-1215:17, July 21, 2010.)
24 20. At the time Nicholson was conferred honorary membership, he satisfied
25 the requirements for membership under section 2.02 of the Log Cabin
26 Republican Bylaws, which states:
27 Honorary and Special Members: The Board of Directors may
establish other criteria for granting an Honorary Membership to Log
28
6

App. 103a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 7 of 84 Page ID #:7709

1 Cabin Republicans for individuals who have exhibited a unique or


noteworthy contribution to the Mission of the Corporation or a
2 Special Membership to Log Cabin Republicans for individuals or
entities that have provided assistance to the Corporation.3
3 (Trial Ex. 109.)
21. Nicholson's membership in Log Cabin Republicans has been
4
uninterrupted and continuous since April 28, 2006, the date Plaintiff's
5
Georgia chapter conferred honorary membership upon him and also
6
the date Plaintiff filed its First Amended Complaint. In light of the
7
Court's May 27, 2010, Order, this is sufficient.
8
22. Martin Meekins testified credibly that the initiative for filing this lawsuit
9
came from the rank and file of the organization; Meekins then
10
interviewed members regarding the viability of a lawsuit and to
11
determine if the members met the requirements to confer standing on
12
the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19,
13
705:11-707:12, July 16, 2010.)
14
15
Testimony from Former Servicemembers
16
Michael Almy
17
23. Michael Almy served for thirteen years as a commissioned officer in the
18
United States Air Force, finishing his service as a major. (Trial Tr.
19
726:21-727:11, 728:11-12, July 16, 2010.) His family has a heritage of
20
21 3
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 cited
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
7

App. 104a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 8 of 84 Page ID #:7710

1 military service; his father retired as a colonel in the Air Force, and two
2 uncles served as career military officers as well. (Trial Tr. 728:13-22,
3 July 16, 2010.)
4 24. Almy entered active duty in 1993, after obtaining an undergraduate
5 degree in Information Technology while serving in the Army ROTC
6 program. He did not self-identify as a gay man until a few years later.
7 (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he
8 testified, the Don't Ask, Don't Tell Act created a natural barrier between
9 himself and his colleagues, as he could not reveal or discuss his
10 personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16,
11 2010.) While it was common for the officers to socialize when off duty,
12 he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of
13 this may have contributed to creating an aura of suspicion about him,
14 and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)
15 25. The Court found Almy a forthright and credible witness whose modest
16 demeanor and matter-of-fact recitation of his service record did not
17 disguise his impressive career in the Air Force. Almy was deployed to
18 Saudi Arabia three times and helped enforce the southern "no fly" zone
19 over Iraq. Almy set up new communications bases throughout military
20 theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi
21 Arabia, serving in the Communications Directorate, during the 2003
22 invasion of Iraq. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.)
23 26. In 2003, after returning from his third deployment to Saudi Arabia, Almy
24 was promoted to the rank of major and accepted a position as the Chief
25 of Maintenance for the 606th Air Control Squadron in Spangdahlem,
26 Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy
27 commanded approximately 180 men in the Maintenance Directorate.
28
8

App. 105a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 9 of 84 Page ID #:7711

1 (Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights4 in the
2 Maintenance Directorate under his command in the 606th Air Control
3 Squadron deployed to Iraq in September 2004. His squadron was
4 responsible for maintaining and controlling the airspace during the
5 invasion of Fallujah, Iraq, and he was responsible for maintaining
6 control over the vast majority of Iraqi airspace, including Kirkuk, as well
7 as maintaining all satellite links and voice and data communications.
8 (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air
9 Base, his flight experienced frequent mortar attacks "usually several
10 times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)
11 27. After Almy completed his third deployment to Iraq in January 2005,
12 someone began using the same computer Almy had used while
13 deployed; that person searched Major Almy's private electronic mail
14 message ("e-mail") files without his knowledge or permission. The
15 search included a folder of Major Almy's personal e-mail messages,5
16 sent to his friends and family members, and read messages, including
17 at least one message to a man discussing homosexual conduct. (Trial
18 Tr. 764:23-766:6-767:2, July 16, 2010.)
19 28. Almy thought the privacy of his messages was protected; he was very
20 knowledgeable about the military's policy regarding the privacy of e-
21 mail accounts because of his responsibility for information systems.
22 (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He
23
4
24 A "flight" is the Air Force term for a group of airmen, comparable to a
"unit" in the Army. (Trial Tr. 1335:10-12, July 21, 2010.)
25 5
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.)
9

App. 106a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 10 of 84 Page ID #:7712

1 knew, for example, that according to Air Force policy, e-mail accounts
2 could not be searched unless authorized by proper legal authority or a
3 squadron commander or higher in the military chain of command. (Trial
4 Tr. 772:20-773:4, July 16, 2010.)
5 29. Almy only learned his private e-mail had been searched when he
6 returned to Germany and his commanding officer confronted Almy with
7 the messages, read him the Don't Ask, Don't Tell Act, and pressured
8 him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20,
9 July 16, 2010.) At the end of the meeting, Almy was relieved of his
10 duties, and his commanding officer informed the other officers in the
11 squadron of this. (Trial Tr. 774:7-15, July 16, 2010.)
12 30. Almy had attained one of the highest level security clearances available
13 for military personnel, "top secret SCI6 clearance;" approximately three
14 months after Almy was relieved of his duties, his security clearance was
15 suspended. (Trial Tr. 775:8-15, July 16, 2010.)
16 31. Initially, Almy contested his discharge, as he felt he had not violated the
17 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the
18 military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather,
19 Almy's understanding was that his discharge was based solely on the
20 e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16,
21 2010.)
22 32. Accordingly, Almy invoked his right to an administrative hearing and
23 solicited letters of support from those who had worked with him in the
24 Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone
25 he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25,
26 July 16, 2010.)
27
6
28 "SCI" stands for "Sensitive Compartmented Information."
10

App. 107a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 11 of 84 Page ID #:7713

1 33. Colonel Paul Trahan, U.S. Army (Ret.), wrote: "My view is that Major
2 Almy has been, and will continue to be an excellent officer. As a former
3 Commander and Inspector General I am well aware of the specifics of
4 the Homosexual Conduct Policy. To my knowledge, Major Almy is not
5 in violation of any of the provisions of the policy. To the contrary, it
6 appears that in prosecuting the case against Major Almy, the USAF
7 may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic
8 Privacy Act and Presidential directives regarding the suspension of
9 security clearances." (Trial Ex. 113 [Character Reference Letter from
10 Col. Paul Trahan, U.S. Army (Ret.)].)
11 34. Captain Timothy Higgins wrote: "Of the four maintenance directorate
12 chiefs I have worked with at the 606th, Major Almy is by far the finest.
13 During his tenure as the [director of logistics], he had maintenance
14 training at the highest levels seen to date . . . . His troops respected him
15 because they believed he had their best interests at heart." (Trial Ex.
16 117 [Character Reference Letter from Timothy J. Higgins, Capt.
17 USAF].)
18 35. Those who served under Almy wrote equally strong praise: "I can say
19 without reservation that Maj. Almy was the best supervisor I have ever
20 had." (Trial Ex. 120 [Character Reference Letter from Rahsul J.
21 Freeman, 1st Lt., USAF].) "I was deployed with him during the NATO
22 Exercise CLEAN HUNTER 2004. His leadership was key to our
23 successful completion of the mission. He was well liked and respected
24 by the enlisted personnel in the unit." (Trial Ex. 122 [Character
25 Reference Letter from Leslie D. McElya, SMSgt. USAF (Ret.)].)
26
27
28
11

App. 108a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 12 of 84 Page ID #:7714

1 36. Almy's commanding officer while his discharge proceedings were


2 pending, Lt. Col. Jeffrey B. Kromer, wrote that he was convinced "the
3 Air Force, its personnel, mission and tradition remains unchanged and
4 unharmed despite [Almy's] alleged [violations of the Don't Ask, Don't
5 Tell Act]." (Trial Ex. 114.)
6 37. During the course of Almy's discharge proceedings, he was relieved of
7 his command, but remained at Spangdahlem Air Base performing "ad
8 hoc" duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy
9 testified he observed the effect his abrupt removal from his duties had
10 on his former unit: the maintenance, availability, and readiness of the
11 equipment to meet the mission declined. (Trial Tr. 813:19-24, 815:2-
12 18, July 16, 2010.)
13 38. One officer in the 606th Air Control Squadron observed that the
14 squadron "fell apart" after Major Almy was relieved of his duties,
15 illustrating "how important Maj. Almy was[,] not only to the mission but
16 to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan
17 M. Zollinger, 1st Lt. USAF, 606th Air Control Squadron].)
18 39. After sixteen months, Almy agreed to drop his request for an
19 administrative hearing and to accept an honorable discharge. He
20 testified he did so because of his own exhausted emotional state and
21 the risk that a less-than-honorable discharge would affect his ability to
22 obtain a civilian job or receive his retirement benefits. (Trial Tr. 798:8-
23 799:13, July 16, 2010.) Almy refused to sign his official discharge
24 papers, however, because they listed the reason for discharge as
25 admitted homosexuality. (See Trial Ex. 112; Trial Tr. 800:1-801:20,
26 July 16, 2010.)
27
28
12

App. 109a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 13 of 84 Page ID #:7715

1 40. Major Almy received many awards and honors during his service in the
2 Air Force. For example, while serving at Tinker Air Force Base in the
3 late 1990s with the Third Combat Communications Group, he was
4 selected as "Officer of the Year," chosen as the top performer among
5 his peers for "exemplary leadership, dedication to the mission, and
6 going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16,
7 2010.) In 2001, he was one of six Air Force officers chosen to attend
8 the residential training program for officers at the Marine Corps
9 Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005, he was
10 awarded the Lt. General Leo Marquez Award, given to the top Air Force
11 communications officer serving in Europe. (Trial Tr. 760:8-761:1, July
12 16, 2010.) Although Almy had been relieved of command during the
13 pendency of the discharge proceedings, Almy's wing commander,
14 Colonel Goldfein, recommended that Almy be promoted to lieutenant
15 colonel. (Trial Tr. 816:19-818:1, July 16, 2010.)
16 41. Almy testified that if the Act were no longer in effect, he "wouldn't
17 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.)
18
19 Joseph Rocha
20 42. Joseph Rocha enlisted in the United States Navy on April 27, 2004, his
21 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family,
22 like Major Almy's, had a tradition of military service, and the September
23 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July
24 15, 2010.) He wanted to be an officer in the United States Marine
25 Corps, but was not admitted to the Naval Academy directly out of high
26 school; so he hoped to enter Officer Training School through diligence
27 as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)
28
13

App. 110a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 14 of 84 Page ID #:7716

1 43. After successfully completing basic training, Rocha was promoted to


2 seaman apprentice and received further training in counter-terrorism
3 and force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then
4 volunteered for deployment on a military mission to Bahrain. (Trial Tr.
5 476:6-12, July 15, 2010.)
6 44. Once he arrived at the Naval Support base in Bahrain, Rocha sought
7 out the base's canine handler position because he wanted to specialize
8 in becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15,
9 2010.)
10 45. The canine group is an elite and competitive unit, for which qualification
11 is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha volunteered
12 his off-duty time to earn the qualifications to interview and be tested for
13 a kennel-support assignment; during this time, his interactions with
14 members of the canine unit were limited to one or two handlers on the
15 night shift when he volunteered. (Trial Tr. 478:20-479:13, July 15,
16 2010.)
17 46. Eventually, Rocha took and passed oral and written examinations with
18 Chief Petty Officer Toussaint, the canine group's commanding officer;
19 Rocha met the other qualifications and received an assignment in
20 kennel support. (Trial Tr. 480:11-19, 481:4-9, July 15, 2010.) His
21 duties were to ensure the dogs – that were trained to sniff and detect
22 explosives and explosive devices – were clean, fed, medicated, and
23 exercised. (Trial Tr. 481:10-17, July 15, 2010.)
24 47. At the same time, Rocha voluntarily participated in additional physical
25 training exercises with members of the Marine Corps, such as martial
26 arts and combat operations training, in the belief this eventually would
27
28
14

App. 111a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 15 of 84 Page ID #:7717

1 improve his chances for admission to the Naval Academy. (Trial Tr.
2 482:16-483:6, July 15, 2010.)
3 48. As Rocha aspired to become a Marine officer, after receiving
4 permission through the Marine chain of command, he began "more
5 formal training," eventually earning martial arts, combat, and swimming
6 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)
7 49. Once assigned as kennel support to the canine unit and under Chief
8 Petty Officer Toussaint's command, Rocha was hazed and harassed
9 constantly, to an unconscionable degree and in shocking fashion.
10 When the eighteen-year-old Rocha declined to participate in the unit's
11 practice of visiting prostitutes, he was taunted, asked if he was a
12 "faggot," and told he needed to prove his heterosexuality by consorting
13 with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.)
14 Toussaint freely referred to him as "gay" to the others in the unit, who
15 then began to use derogatory language towards Rocha. (Trial Tr.
16 486:11-17, July 15, 2010.)
17 50. When Rocha refused to answer questions about his sexual orientation
18 from Toussaint and others in the unit, "it became a frenzy," in Rocha's
19 words, and his superiors in the canine unit would gather around him,
20 simulate sexual positions, and ask if U.S. Marine Corps soldiers
21 performed various sexual acts on him. (Trial Tr. 487:20-488:7, 488:8-
22 19, July 15, 2010.) Toussaint ordered all of the other men in the unit to
23 beat Rocha on the his nineteenth birthday. (Trial Tr. 485:16-486:3, July
24 15, 2010.)
25 51. On one occasion that Rocha testified was especially dehumanizing,
26 Toussaint brought a dozen dogs to the Department of Defense
27 Dependents School for a bomb threat training exercise. For the
28
15

App. 112a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 16 of 84 Page ID #:7718

1 "training exercise" he instructed Rocha to simulate performing oral sex


2 on another enlisted man, Martinez, while Toussaint called out
3 commands about how Rocha should make the scenario appear more
4 "queer." (Trial Tr. 490:13-492:19, July 15, 2010.)
5 52. On another occasion, Toussaint had Rocha leashed like a dog,
6 paraded around the grounds in front of other soldiers, tied to a chair,
7 force-fed dog food, and left in a dog kennel covered with feces. (Trial
8 Tr. 521:11-522:1, July 15, 2010.)
9 53. Rocha testified that during this deployment in Bahrain, he never told
10 anyone he was gay because he wanted to comply with the Don't Ask,
11 Don't Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not
12 report any of the mistreatment he suffered, although he believed it
13 violated Navy regulations. (Trial Tr. 488:20-489:14, July 15, 2010.)
14 Toussaint was his commanding officer to whom he normally would
15 direct such a report yet was either responsible for the mistreatment or
16 present when others engaged in it. (Id.)
17 54. Rocha's only other choice was to report the misconduct to the Inspector
18 General, which he did not believe was feasible. (Trial Tr. 499:6-16,
19 533:2-19, July 15, 2010.) He was eighteen to nineteen years old at the
20 time, far from home, and all of the perpetrators were senior to him in
21 rank and led in the misconduct by his commanding officer. (Trial Tr.
22 488:20-489:14, July 15, 2010.)
23 55. Eventually Rocha received the assignment he had hoped for, returning
24 to the United States and reporting to Lackland Air Force Base for
25 Military Working Dog Training School. (Trial Tr. 499:20-500:1, July 15,
26 2010.)
27
28
16

App. 113a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 17 of 84 Page ID #:7719

1 56. Once he completed the training at Lackland successfully, he returned to


2 Bahrain, where he found that although he was now a military dog
3 handler himself, the same atmosphere prevailed. (Trial Tr. 500:2-6, 16-
4 18, July 15, 2010.)
5 57. A new petty officer had joined the unit, Petty Officer Wilburn, who
6 declared openly that Rocha was "everything he hated: liberal, [Roman]
7 Catholic, and gay." (Trial Tr. 501:19-502:11, July 15, 2010.) Wilburn
8 trailed Rocha regularly as Rocha tried to carry out his duties, taunting
9 and harassing him. Rocha wrote Wilburn a letter complaining about his
10 conduct; in response, Wilburn left an image of two men engaging in
11 homosexual activity on Rocha's computer with the message that if
12 Rocha complained, "no one will care." (Trial Tr. 502:12-504:5, July 15,
13 2010.)
14 58. When the Navy undertook an investigation of Toussaint's command
15 (apparently unmotivated by anything Rocha said or did), Rocha was
16 questioned by a captain but at first refused to answer any questions
17 about the mistreatment he was subjected to because he was afraid the
18 investigation might lead to questions about his sexual orientation and
19 an investigation on that subject. (Trial Tr. 519:16-520:10, July 15,
20 2010.)
21 59. So great was Rocha's fear of retaliation that he responded to an
22 investigating officer's questions regarding Toussaint only after he was
23 threatened with a court martial if he continued to refuse to respond.
24 (Trial Tr. 520:11-15, July 15, 2010.)
25 60. The Navy recognized Rocha with several awards during his service,
26 including the Navy and Marine Corps Achievement Medal for
27 professional achievement that exceeds expectations; the Global War
28
17

App. 114a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 18 of 84 Page ID #:7720

1 on Terrorism Expeditionary Medal; the National Defense Service


2 Medal; and the Navy Expert Rifleman Medal. (Trial Tr. 517:23-24,
3 518:7-8, 14-16, 519:4-7, July 15, 2010.)
4 61. Rocha received consistently excellent performance evaluations and
5 reviews while he served in the Navy. (See Trial Exs. 144, 145.) In
6 Rocha's review covering February 18, 2005, through July 15, 2005, his
7 supervisors – including Toussaint – described Rocha as "highly
8 motivated" and a "dedicated, extremely reliable performer who
9 approaches every task with enthusiasm." (Trial Ex. 145; Trial Tr.
10 494:23-497:13, July 15, 2010.) Rocha's review also stated that he was
11 a "proven performer" who was "highly recommended for advancement."
12 (Trial Tr. 496:16-497:3, July 15, 2010.) Rocha's review recommended
13 him for early promotion, which he received shortly thereafter. (Trial Tr.
14 497:7-22, July 15, 2010.) Toussaint signed the review as Rocha's
15 senior reviewing military officer. (Trial Tr. 495:19-23, 498:4-6, July 15,
16 2010.)
17 62. Despite the ongoing harassment, Rocha continued to receive
18 exemplary reviews from his supervisors in the canine handling unit,
19 including Toussaint. In a review covering July 16, 2005, through June
20 16, 2006, then-Petty Officer Rocha is described as an "exceptionally
21 outstanding young sailor whose performance, initiative, and
22 immeasurable energy make[ ] him a model Master-At-Arms." (Trial Ex.
23 144; Trial Tr. 504:23-506,19, July 15, 2010.) The review also noted
24 that as a military working dog handler, Rocha "flawlessly inspected
25 [over 300 items of military equipment,] increasing the force protection of
26 NSA Bahrain." (Trial Ex. 144; Trial Tr. 506:10-13, July 15, 2010.)
27
28
18

App. 115a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 19 of 84 Page ID #:7721

1 63. As a result of his performance as a military working dog handler, Rocha


2 received the Navy and Marine Corps Achievement Medal, which is
3 given when an enlisted member exceeds expectations. (Trial Tr.
4 517:15-518:6 July 15, 2010.)
5 64. In 2006, Rocha was chosen to receive the sole nomination from his
6 congressman for entrance into the U.S. Naval Academy, and Rocha
7 chose to apply to the Naval Academy's preparatory school in the event
8 he was not accepted directly into the Naval Academy.7 (Trial Tr. 506:1-
9 4; 507:4-23, July 15, 2010.)
10 65. Rocha received the required nomination of everyone in his chain of
11 command for his entry into the Naval Academy and was accepted into
12 its preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) Hearing
13 of acceptance to the Academy was "the most significant moment of
14 [his] life . . . , [because acceptance into the Naval Academy] was the
15 biggest dream [he'd] ever had." (Trial Tr. 519:8-15, July 15, 2010.)
16 66. Once he enrolled at the preparatory academy, Rocha had the
17 opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-
18 24, July 15, 2010.) His instructors at the preparatory scbool stressed
19 the nature of the fifteen- to twenty-year commitment expected of the
20 officer candidates. (Id.) Rocha understood he was gay when he
21 enlisted in the Navy at age eighteen, and had complied fully with the
22 Don't Ask, Don't Tell Act during his service, which he had thought would
23 protect him. (Id.)
24
25
7
26 According to Rocha's uncontradicted testimony on this point, the
preparatory school 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 Naval Academy's preparatory school, acceptance into
28 Annapolis is guaranteed. (Trial Tr. 508:5-12, July 15, 2010.)
19

App. 116a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 20 of 84 Page ID #:7722

1 67. After reflecting on his experiences in the military working dog unit in
2 Bahrain, however, he decided it would be impossible for him to serve
3 under the restraints of the Act and fulfill the commitment expected of
4 him. He then decided to inform the Navy of his sexual orientation.
5 (Trial Tr. 522:12-523:15, July 15, 2010.)
6 68. He first sought permission from his immediate supervisor, Ensign
7 Reingelstein, to speak to the division commander; Ensign Reingelstein
8 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr.
9 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with
10 his commanding officer, Lt. Bonnieuto, who listened and told him to
11 return to his unit. (Trial Tr. 525:2-19, July 15, 2010.)
12 69. Eventually, he received an honorable discharge (see Trial Ex. 144),
13 although before accepting Rocha's statement, Lt. Bonnieuto tried to
14 dissuade him, telling him he was being considered for various honors
15 and leadership positions at the preparatory school, including "battalion
16 leadership." (Trial Tr. 525:21-526:6, 527:13-528:22, 530:4-25, July 15,
17 2010.)
18 70. After his discharge, Rocha was diagnosed with service-related
19 disorders including "post-traumatic stress disorder with major
20 depression." (Trial Tr. 532:11-19, July 15, 2010.)
21 71. Rocha testified he would rejoin the Navy if the Don't Ask, Don't Tell Act
22 was repealed. (Trial Tr. 533:24-534:2, July 15, 2010.)
23 72. Even when recounting the mistreatment endured under Toussaint's
24 command, Rocha testified in an understated and sincere manner. The
25 Court found him a forthright and credible witness.
26
27
28
20

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Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 21 of 84 Page ID #:7723

1 Jenny Kopfstein
2 73. Jenny Kopfstein joined the United States Navy in 1995 when she
3 entered the United States Naval Academy; after graduation and further
4 training, she began serving on the combatant ship USS Shiloh on
5 March 15, 2000. (Trial Tr. 919:12-14, 926:11-927:3, 927:12-19, July
6 16, 2010.)
7 74. Kopfstein was assigned as the ship's ordnance officer, which means
8 she "was in charge of two weapon systems and a division of [fifteen]
9 sailors." (Trial Tr. 928:22-929:6, July 16, 2010.) When assigned as
10 "officer of the deck," Kopfstein was "in charge of whatever the ship
11 happened to be doing at that time," and coordinating the ship's training
12 exercises of as many as twenty to thirty sailors. (Trial Tr. 929:7-930:4,
13 July 16, 2010.)
14 75. Once assigned to the USS Shiloh, Kopfstein discovered the Act made it
15 impossible for her to answer candidly her shipmates' everyday
16 questions about such matters as how she spent weekends or leave
17 time; to do so would place her in violation of the Act as she would
18 necessarily be revealing the existence of her lesbian partner. (Trial Tr.
19 931:22-932:11, July 16, 2010.) Having to conceal information that
20 typically was shared made her feel as though other officers might
21 distrust her, and that trust is critical, especially in emergencies or
22 crises. (Trial Tr. 957:6-22, July 20, 2010.)
23 76. The Don't Ask, Don't Tell Act's prohibition on gay and lesbian
24 servicemembers revealing their sexual orientation affects trust among
25 shipmates, as Kopfstein testified, because it causes people to "hide
26 significant parts of themselves," making it harder to establish the
27 necessary sense of teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.)
28
21

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1 When she overheard homophobic comments and name-calling by her


2 shipmates, she felt she could neither report them nor confront the
3 offenders, because to do either might call unwanted suspicion upon
4 her. (Trial Tr. 932:18-933:6, July 16, 2010.)
5 77. After serving for four months on the USS Shiloh, Kopfstein wrote a
6 letter to Captain Liggett, her commanding officer, stating she was a
7 lesbian; she wanted Captain Liggett to learn this from her rather than
8 hear it from another source. (Trial Tr. 933:7-13, 935:8-23, July 16,
9 2010; Trial Ex. 140 ["Memorandum of Record" from Kopfstein to
10 Liggett, July 17, 2000].)
11 78. Captain Liggett did not begin any discharge proceedings after Kopfstein
12 wrote this letter; he told her this was because he did not know her well
13 and thought she might have written the letter not because she was a
14 lesbian, but rather as an attempt to avoid deployment to the Arabian
15 Gulf. (Trial Tr. 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.)
16 79. Kopfstein continued to serve and perform her duties in the same
17 manner she had before writing, but no longer lying or evading her
18 shipmates' questions about her personal life when asked. (Trial Tr.
19 950:25-951:11, July 20, 2010.)
20 80. When leaving the USS Shiloh, to be replaced by Captain Dewes,
21 Captain Liggett not only invited Kopfstein to the farewell party at his
22 house for the officers and their spouses, but made a point of telling her
23 she was welcome to bring "any guest she chose" with her. (Trial Tr.
24 955:12-956:8, July 20, 2010.) Kopfstein and her partner attended the
25 party, and Kopfstein testified that Captain Liggett and his wife
26 welcomed them both warmly, as did everyone else present. (Trial Tr.
27 956:12-25, July 20, 2010.)
28
22

App. 119a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 23 of 84 Page ID #:7725

1 81. During the abbreviated course of her service, the Navy awarded
2 Kopfstein many honors. For example, she was chosen to steer the
3 USS Shiloh in a ship steering competition; after the USS Shiloh won the
4 competition, she received a personal commendation from the Admiral
5 who also ceremonially "gave her his coin," a rare and prized tribute.
6 (Trial Tr. 952:14-953:20, July 20, 2010.) When she returned from
7 overseas deployment after the bombing of the USS Cole off the coast
8 of Yemen in February 2001, the Navy awarded her the Sea Service
9 Deployment Ribbon, another commendation not routinely awarded.
10 (Trial Tr. 949:11-22, 954:5-22, July 20, 2010.) She also was awarded
11 the Naval Expeditionary Medal after the Yemen deployment. (Trial Tr.
12 955:5-11.)
13 82. On September 11, 2001, Kopfstein was the ordnance officer on the
14 USS Shiloh, in charge of all the weapons on the ship; the captain chose
15 her to be officer of the deck as the ship was assigned to defend the
16 West Coast against possible attack in the wake of the attacks on New
17 York and the Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20,
18 2010.) In October 2001, the Navy awarded her the Surface Warfare
19 Officer pin, during a ceremony where her captain took off his pin and
20 pinned it on her chest. (Trial Tr. 968:8-970:1, July 20, 2010.)
21 83. In evaluations completed before and after Kopfstein revealed her
22 sexual orientation, her commanding officers praised her as the USS
23 Shiloh's "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted
24 ship handler," and the manager of "one of the best ship's led and
25 organized divisions," and a "[s]uperb [t]rainer" with a "great talent for
26 teaching other junior officers." (Trial Exs. 138, 139.)
27
28
23

App. 120a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 24 of 84 Page ID #:7726

1 84. Two captains under whom she served came to the Board of Inquiry to
2 testify on her behalf during her discharge proceedings. (Trial Tr. 974:2-
3 977:11, July 20, 2010.) Captain W.E. Dewes, Kopfstein's commanding
4 officer at the time of her discharge, reported that "[h]er sexual
5 orientation has not disrupted good order and discipline onboard USS
6 SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy"
7 and "played an important role in enhancing the ship[']s strong
8 reputation . . . . She is a trusted [o]fficer of the [d]eck and best ship
9 handler among her peers. Possesses an instinctive sense of relative
10 motion – a natural Seaman." (Trial Ex. 139.)
11 85. Captain Liggett also attended her discharge proceedings, where he
12 testified that "it would be a shame for the service to lose her." (Trial Ex.
13 138.)
14 86. Kopfstein served in the Navy without concealing her sexual orientation
15 for two years and four months before her discharge. During that time,
16 to her knowledge, no one complained about the quality of her work or
17 about being assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8,
18 989:9-17, July 20, 2010.)
19 87. Kopfstein did not want to leave the Navy; she enjoyed the company of
20 her shipmates and found her work rewarding. (Trial Tr. 973:16-24, July
21 20, 2010.)
22 88. Nevertheless, Kopfstein was discharged under the Don't Ask, Don't Tell
23 Act. (Id.) Although she appealed the decision to separate her from the
24 Navy, she did not prevail, and on October 31, 2002, she received an
25 honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.)
26 89. Kopfstein testified she "absolutely" would rejoin the Navy if the Act were
27 repealed. (Trial Tr. 980:16-22, July 20, 2010.)
28
24

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1 90. The Court found Kopfstein an honest, candid, and believable witness;
2 she testified with modest understatement about her talent and
3 achievements as a naval officer and with obvious sincerity about her
4 desire to rejoin to fulfill her original commitment.
5
6 John Nicholson
7 91. 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.
10 1129:3-1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He
11 underwent testing in the military for foreign language aptitude and
12 qualified for the most difficult level of language training, Category 4.
13 (Trial Tr. 1151:25-1152:3, 1154:4-9, July 20, 2010.)
14 92. While Nicholson served, especially while in basic training at Fort
15 Benning, Georgia, he sometimes heard other soldiers make sexist or
16 homophobic slurs but was afraid to report these violations of military
17 conduct lest suspicion fall on him or he be retaliated against in a
18 manner that would lead to his discharge under the Act. (Trial Tr.
19 1138:1-1142:14, 1143:2-24, July 20, 2010.)
20 93. The Don't Ask, Don't Tell Act prevented Nicholson from being open and
21 candid with others in his unit; it kept him under a "cloud of fear," and
22 caused him to lie about and alter who he was. (Trial Tr. 1194:17-
23 1196:20, July 20, 2010.)
24 94. After completing his basic training, Nicholson was assigned to Fort
25 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr.
26 1143:25-1144:3, July 20, 2010.) While completing his intelligence
27 training at Fort Huachuca, Nicholson requested and received a
28
25

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1 reassignment to counterintelligence, but remained at Fort Huachuca to


2 complete the requisite counterintelligence training. (Trial Tr. 1148:5-14,
3 July 20, 2010.)
4 95. Nicholson was waiting to start the next cycle of the counterintelligence
5 course when another servicemember started spreading a rumor that
6 Nicholson was gay. (Trial Tr. 1154:12-18, July 20, 2010.)
7 96. The rumor originated because, while off duty in January 2002,
8 Nicholson wrote a letter to a man with whom he had a relationship
9 before joining the Army. Nicholson wrote the letter in Portuguese to
10 prevent other servicemembers from reading it, because it contained
11 references that could reveal Nicholson's sexual orientation. (Trial Tr.
12 1134:10-23, 1161:10-1163:7, July 20, 2010.)
13 97. Despite Nicholson's precautions, another servicemember caught sight
14 of the letter while chatting with Nicholson. (Id.) After the two had been
15 talking for a few minutes, Nicholson realized she was one of the few
16 persons he knew in the Army who also could also read Portuguese; he
17 gathered up the pages of his letter after he noticed she appeared to be
18 interested in it and reading it. (Id.; Trial Tr. 1163:8-18, July 20, 2010.)
19 98. After this incident, members of Nicholson's unit approached him and
20 told him to "be more careful" with regard to disclosing his sexual
21 orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson
22 sought his platoon sergeant's assistance to stop the spread of the
23 rumor, but the sergeant instead informed the chain of command. (Trial
24 Tr.1166:9-1167:19, 1170:9-15, July 20, 2010.)
25 99. Nicholson's company commander summoned Nicholson to his office
26 and informed Nicholson that he was initiating discharge proceedings.
27 (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the meeting,
28
26

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Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 27 of 84 Page ID #:7729

1 the platoon sergeant, who also had been present at the meeting,
2 ordered Nicholson not to disclose why he was being discharged from
3 the Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.)
4 100. After meeting with his company commander, Nicholson was separated
5 from his platoon and placed in a wing of the barracks containing other
6 servicemembers who were being discharged for reasons such as drug
7 use and failing to disclose criminal convictions before enlistment. (Trial
8 Tr. 1184:11-1185:11, July 20, 2010.)
9 101. Two months later, Nicholson was honorably discharged under the Don't
10 Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20,
11 2010.)
12 102. Nicholson testified he "absolutely" would return to the Army if the Don't
13 Ask, Don't Tell Act were invalidated. (Trial Tr. 1209:4-5, July 21, 2010.)
14 103. As noted above with respect to his testimony on the standing issue, the
15 Court observed Nicholson to be credible and forthright.
16
17 Anthony Loverde
18 104. 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
20 benefits to obtain a post-graduate degree eventually. (Trial Tr.
21 1326:19-24, 1327:16-1328:22, July 21, 2010.)
22 105. After completing basic training, he received specialized training in
23 electronics and further training in calibrations, after which he qualified at
24 the journeyman level as a Precision Measurement Equipment
25 Laboratory ("PMEL") technician. (Trial Tr. 1329:5-24, July 21, 2010.) A
26 PMEL technician calibrates the accuracy, reliability, and traceability of
27
28
27

App. 124a
Case 2:04-cv-08425-VAP-E Document 251 Filed 10/12/10 Page 28 of 84 Page ID #:7730

1 all types of equipment, including precision warfare equipment. (Trial Tr.


2 1335:13-1336:5, July 21, 2010.)
3 106. After completing training in December 2001, Loverde was stationed at
4 Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.)
5 While at Ramstein, Loverde's flight was responsible for calibrating and
6 ensuring the accuracy and reliability of "various equipment used
7 throughout the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.)
8 Loverde was stationed at Ramstein for approximately three years.
9 (Trial Tr. 1337:5-11, July 21, 2010.)
10 107. After completing his tour at Ramstein Air Base, Loverde was stationed
11 at Edwards Air Force Base in California for approximately two years.
12 (Trial Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards,
13 Loverde was deployed to Al Udeid Air Base in Qatar for four months,
14 where he supported Operations Iraqi Freedom and Enduring Freedom,
15 as well as missions in the Horn of Africa. (Trial Tr. 1344:8-22,
16 1345:17-21, July 21, 2010.)
17 108. During his stint in the Air Force, Loverde received frequent promotions.
18 Three and one-half years after enlistment, for example, he was
19 promoted to staff sergeant, although the usual length of time to reach
20 that rank is six years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July
21 21, 2010.)
22 109. After serving his initial enlistment commitment, he reenlisted and
23 received further training to qualify as a loadmaster. (Trial Tr. 1352:25-
24 1353:15, July 21, 2010.) In that capacity, he flew sixty-one combat
25 missions in Iraq, where he received two Air Medals. (Trial Tr. 1357:12-
26 17, 1359:17-25, July 21, 2010.)
27
28
28

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1 110. Loverde testified he was raised in a religious family and his church
2 taught that homosexuality was a sin; he had not realized he was gay at
3 the time he joined the military at age twenty-one. (Trial Tr. 1327:16-17,
4 1330:13-25, July 21, 2010.) After he became aware of his sexual
5 orientation, he researched the Don't Ask, Don't Tell Act and found the
6 Servicemembers' Legal Defense Network website. (Trial Tr. 1332:13-
7 1333:4, July 21, 2010.) He understood that there were three grounds
8 for discharge under the Act – marriage, conduct, and statements. (Trial
9 Tr. 1332:17-1333:4, July 21, 2010.) He resolved to comply with the Act
10 and remain in the Air Force.
11 111. The Air Force's core values are "Integrity First, Service Before Self, and
12 Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:20-
13 25, July 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act
14 effectively made it impossible to honor the "Integrity First" value of the
15 credo, because on occasion, he felt forced to lie rather than violate the
16 Act. Once, when with other servicemembers in a bar off base in
17 Germany, he refused the sexual advances of a German civilian woman,
18 and his colleagues asked him if he was gay; on another occasion, a
19 subordinate airman asked Loverde about his sexual orientation. (Trial
20 Tr. 1333:5-1334:16, 1349:24-1350:24, July 21, 2010.)
21 112. During the time he served as a loadmaster at Ramstein Air Base in
22 Germany, Loverde’s flight chief often used offensive epithets to refer to
23 homosexuals, as well as racist and sexist slurs. (Trial Tr. 1364:16-
24 1365:25, July 21, 2010.) Although Loverde was disturbed by this, he
25 felt he had no recourse and could not report it lest he draw attention to
26 his sexual orientation. Therefore, during the year he served under this
27
28
29

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1 officer, he never made any formal or informal complaint about it. (Id.;
2 Trial Tr. 1366:13-15, July 21, 2010.)
3 113. Loverde also testified that during his combat deployments and during
4 his assignments to bases in Germany and California, he faced the
5 difficulty of having to hide his personal life from his colleagues and
6 avoiding conversations with them about everyday life over meals, for
7 example. (Trial Tr. 1360:1-1361:17, July 21, 2010.) He became so
8 skilled at avoiding his fellow airmen that they nicknamed him "Vapor" in
9 recognition of his ability to vanish when off duty. (Id.)
10 114. In April 2008, Loverde decided he was no longer willing to conceal his
11 sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time,
12 he was deployed at Ali Al Saleem Air Base in Kuwait, and he delayed
13 formally telling his commanding officer of his decision until his return to
14 Germany, lest his entire flight's mission be disrupted and their return
15 from deployment delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July
16 21, 2010.)
17 115. When Loverde returned to Germany from his deployment, he wrote to
18 his first sergeant, requesting to speak to his commanding officer about
19 continuing to serve under the Don't Ask, Don't Tell Act, and stating that
20 while he wanted to continue serving in the Air Force, he could not do so
21 under that law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.)
22 116. Loverde's superiors recommended the Air Force retain him and
23 commended him for being "nothing less than an outstanding [non-
24 commissioned officer]" and "a strong asset" to the Air Force. (Trial Exs.
25 136, 137.) They praised him for demonstrating an "exceptional work
26 ethic" and "the highest level of military bearing, honest, and
27 trustworthiness." (Id.) One wrote: "If I ever had the opportunity to build
28
30

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1 my 'dream team' for work, I would take an entire crew of SSgt. Loverde
2 over most other workers. . . ." (Trial Ex. 137.)
3 117. Nevertheless, in July 2008 the Air Force gave Loverde an honorable
4 discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134,
5 136, 137; Trial Tr. 1372:20-1377:20, July 21, 2010.)
6 118. Loverde testified he would join the Air Force again "without a doubt" if
7 the Don't Ask, Don't Tell Act were repealed. (Trial Tr. 1389:12-18, July
8 21, 2010.) The Court found Loverde a candid and credible witness.
9
10 Steven Vossler
11 119. Steven Vossler's family has a tradition of service in the Army extending
12 back to the Spanish-American War, and he enlisted in the United
13 States Army in November 2000, before graduating high school. (Trial
14 Tr. 302:19-303:5, July 14, 2010.) After basic training, the Army sent
15 him to the Defense Language Institute in Monterey, California, because
16 of his exceptional aptitude for foreign languages. (Trial Tr. 305:5-306:6,
17 July 14, 2010.)
18 120. Vossler developed close friendships with other students at the
19 Language Institute, and testified that in general it is important to have
20 "good, open relationships" and to discuss one's personal experiences
21 and life with one's colleagues in the military, and if one does not, it is
22 perceived as an attempt to distance one's self. (Trial Tr. 316:7-317:17,
23 July 14, 2010.)
24 121. Vossler met Jerrod Chaplowski, another soldier and Korean language
25 student at the Monterey Language Institute, and became friends with
26 him. (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually
27 Vossler heard a rumor that Chaplowski was gay. (Trial Tr. 318:22-
28
31

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1 320:24, July 14, 2010.) Vossler was initially surprised at this, because
2 "up until that point, [he] still held some very stereotyping beliefs about
3 gays and lesbians," but as a heterosexual, he had no difficulty sharing
4 living quarters with Chaplowski at any of the several Army bases where
5 they were quartered together; in fact, Chaplowski was a considerate
6 roommate and it was always a "great living situation." (Trial Tr. 319:16-
7 17, 321:2-10, 327:1-11, 329:20-25, July 14, 2010.)
8 122. The difficulty Vossler encountered was that when he and Chaplowski
9 were with other servicemembers and the conversation turned to
10 general subjects, Vossler had to be excessively cautious lest he
11 inadvertently cast suspicion on Chaplowski and trigger an investigation
12 under the Don't Ask, Don't Tell Act. (See Trial Tr. 327:12-328:20, July
13 14, 2010.) For example, if a group of soldiers was discussing their
14 respective social activities over the previous weekend, Vossler had to
15 refer to Chaplowski's dinner companion as "Stephanie" rather than
16 "Steven;" even this small deception pained Vossler as it violated the
17 Army's code of honor. (Id.)
18 123. Vossler also observed that the Don't Ask, Don't Tell Act infringed
19 Chaplowski's ability or willingness to enforce the Army's policy banning
20 offensive and discriminatory language. (Trial Tr. 328:22-329:4, July 14,
21 2010.) Homophobic slurs, epithets, and "humor" were commonplace
22 and made Vossler uncomfortable; he noticed that Chaplowski did not
23 confront those who employed them, although Vossler eventually did at
24 times. (Trial Tr. 329:5-19, July 14, 2010.)
25 124. Vossler chose not to reenlist in the active-duty Army after his tour of
26 service expired, instead enlisting in the Army National Guard, which he
27 left in June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.)
28
32

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1 125. After leaving the military, Vossler became a vocal advocate for the
2 repeal of the Don't Ask, Don't Tell Act because he believes the Act
3 "doesn't seem in line with American values" and he "do[es]n't
4 understand how it's a law in [this] country" because he perceives the
5 Act to be discriminatory. (Trial Tr. 337:14-338:20, July 14, 2010.)
6 126. The Court found Vossler, in common with the other former military men
7 and women who testified at trial, a credible, candid, and compelling
8 witness.
9
10 The Don't Ask, Don't Tell Act
11 127. After taking office in 1992, President Clinton directed Secretary of
12 Defense Les Aspin to review his department's policy regarding
13 homosexuals serving in the military.
14 128. Congress undertook its own review and, in 1993, enacted the Don't
15 Ask, Don't Tell Act, which regulated the service of homosexual
16 personnel in the United States military. See National Defense
17 Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat.
18 1547 § 571, 10 U.S.C. § 654.
19 129. The Act contains a series of findings that mirror the concerns of then-
20 chairman of the Joint Chiefs of Staff Colin Powell's testimony before
21 Congress: "military life is fundamentally different from civilian life;"
22 "[s]uccess in combat requires military units that are characterized by
23 high morale, good order and discipline, and unit cohesion;" and "the
24 presence in the [A]rmed [F]orces of persons who demonstrate a
25 propensity of intent to engage in homosexual acts would create an
26 unacceptable risk to the high standards of morale, good order and
27
28
33

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1 discipline and unit cohesion that are the essence of military capability."
2 See 10 U.S.C. § 654(a); cf. S. Rep. No. 103-112 at 283 (1993).
3 130. The Act is codified at 10 U.S.C. § 654; under § 654(b), the Secretary of
4 Defense is authorized to formulate the implementing regulations, which
5 are comprised of Department of Defense Directives 1332.14 (1993),
6 1332.30 (1997), and 1304.26 (1993). The Secretary of Defense
7 recently changed the implementing regulations. See Department of
8 Defense Instruction ("DoDI") 1332.14 (2008) (incorporating March 29,
9 2010, changes); DoDI 1332.30 (2008) (incorporating March 29, 2010,
10 changes).
11 131. The statute provides that a member of the Armed Forces "shall be
12 separated" from military service under one or more of the following
13 circumstances.
14 a. First, a servicemember shall be discharged if he or she "has
15 engaged in, attempted to engage in, or solicited another to
16 engage in a homosexual act or acts." 10 U.S.C. § 654(b)(1).
17 b. Second, a servicemember shall be discharged if he or she "has
18 stated that he or she is a homosexual8 or bisexual,9 or words to
19 that effect . . . ." 10 U.S.C. § 654 (b)(2).
20 c. Third, a servicemember shall be discharged if he or she has
21 married or attempted to marry a person "known to be of the same
22 biological sex." 10 U.S.C. § 654 (b)(3).
23
24 8
"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).
9
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).
34

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1 132. The first two routes to discharge have escape clauses; that is,
2 discharges via either subsection (b)(1) or (b)(2) create a rebuttable
3 presumption which the servicemember may attempt to overcome.
4 Through this exception, a servicemember may rebut the presumption
5 by demonstrating the homosexual conduct which otherwise forms the
6 basis for the discharge under the Act meets five criteria, including inter
7 alia, that it is a "departure" from the servicemember's "usual and
8 customary behavior," is unlikely to recur, and was not accomplished by
9 use of force, coercion or intimidation. 10 U.S.C. § 654 (b)(1)(A)-(E).
10 133. An escape route also applies to the second basis for discharge under
11 the Act, the making of a statement that one is a homosexual. It allows
12 the servicemember to rebut the presumption thus created by
13 demonstrating that "he or she is not a person who engages in, attempts
14 to engage, or has a propensity to engage in, or intends to engage in
15 homosexual acts." 10 U.S.C. § 654 (2).
16
17 Defendants' Evidence
18 134. Defendants specifically identified only the following items of legislative
19 history as those upon which they rely in support of their contentions that
20 the Act significantly furthers governmental interests in military readiness
21 or troop cohesion, or that discharge is necessary to those interests: (1)
22 the Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report;
23 and the testimony of the following witnesses during hearings on the
24 proposed Policy: (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr.
25 William Henderson; and (7) General Colin Powell. Defendants did not
26 include precise citations to any portion of the above-referenced
27 materials to support the constitutionality of the Policy.
28
35

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1 a. The Crittenden Report (Trial Ex. 4)


2 The Crittenden Report, formally titled Report of the Board
3 Appointed to Prepare and Submit Recommendations to the Secretary
4 of the Navy for the Revision of Policies, Procedures, and Directives
5 Dealing with Homosexuals, was prepared by that Board in 1957. U.S.
6 Navy Captain S.H. Crittenden chaired the Board, which made detailed
7 recommendations regarding the manner in which discipline against
8 homosexual servicemembers should be imposed, including
9 circumstances in which discharge would be appropriate, and whether
10 discharge should be honorable or otherwise. The Report does not,
11 however, discuss the impact of the presence of homosexuals serving in
12 the Armed Forces on either military readiness or unit cohesion.
13 Instead, the Board assumed, without investigation, that the presence of
14 homosexuals had a negative effect and their exclusion was desirable,
15 without elaborating on the basis for those assumptions; the Report
16 never made any findings concerning the impact of homosexual
17 servicemembers on military operations.
18 Accordingly, the Crittenden Report is not evidence that discharge
19 of homosexual servicemembers significantly furthers government
20 interests in military readiness or troop cohesion, or that discharge is
21 necessary to those interests. The Report, in fact, is silent on those
22 interests.
23 It did conclude, however, that assumptions that homosexuals
24 present security risks and are unfit for military service are not well-
25 supported by evidence. The Report also generally found homosexuals
26 to be no more or less likely to be qualified to serve in the Armed Forces
27 than heterosexuals according to a number of measures.
28
36

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1 b. The PERSEREC Report (Trial Ex. 5)


2 The PERSEREC Report, formally titled "Nonconforming Sexual
3 Orientation in the Military and Society," was published in 1988 by the
4 Defense Personnel Security Research and Education Center and
5 authored by Theodore R. Sabin and Kenneth E. Karois. The Report is
6 a broad survey of then-prevailing legal trends regarding treatment of
7 homosexuals, scientific views on homosexuality, and the history of
8 social constructions of "nonconforming" sexual behavior. The Report
9 notes a legal trend toward increasingly recognizing rights of
10 homosexuals, a scientific trend toward recognizing homosexuality both
11 as biologically determined and as a normal condition not necessarily
12 indicating physical or mental disease, and a societal trend towards
13 increasing acceptance of homosexual behavior.
14 The PERSEREC Report generally dismisses traditional objections
15 to service by homosexuals in the military as abstract, intangible, and
16 tradition-bound. The Report cites no evidence that homosexual
17 servicemembers adversely affect military readiness or unit cohesion.
18 The Report discusses unit cohesion, but only to state that empirical
19 research on the effect of homosexual servicemembers on unit cohesion
20 is important and necessary in the future; it points to no existing
21 empirical data. In general, the Report suggests the military begin a
22 transition towards acceptance of homosexual servicemembers.
23
24 c. The Rand Report (Trial Ex. 8)
25 The Rand Report was prepared by the Rand Corporation's
26 National Defense Research Institute in 1993 at the request of the Office
27 of the Secretary of Defense, Les Aspin. The submitted summary of the
28
37

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1 Rand Report discusses only "Section 10," entitled "What Is Known


2 about Unit Cohesion and Military Performance," as that is the sole
3 section that bears on the issues presented here.
4 Foremost among the Rand Report's conclusions is that no
5 empirical evidence exists demonstrating the impact of an openly
6 homosexual servicemember on the cohesion of any military unit. In its
7 discussion of unit cohesion, the Report distinguished between social
8 cohesion – "the emotional bonds of liking and friendship of the
9 members of a unit" (Trial Tr. 872:3-4, July 16, 2010) and task cohesion
10 – "a shared commitment to the group's mission or task goals" (Trial Tr.
11 872:4-6, July 16, 2010); concluded that according to public literature,
12 only task cohesion has an even moderately positive correlation with unit
13 performance; and found after controlling for task cohesion, social
14 cohesion has almost no correlation to unit performance. The Report
15 further opines that an openly homosexual servicemember is more likely
16 to affect only social cohesion, rather than task cohesion, thus having
17 little to no impact on a unit's military performance.
18 The Report also concluded that merely assigning openly
19 homosexual servicemembers to a unit can decrease negative feelings
20 towards homosexuals, as fellow unit members tend to hold positive
21 views of other individuals simply because they have been arbitrarily
22 assigned to the same group. Moreover, contact with a group towards
23 which negative feelings are held tends to decrease negative feelings
24 towards that group; Professor Belkin described this phenomenon as
25 "familiarity breeds tolerance." (Trial Tr. 297:9-19, July 14, 2010.) The
26 Report opined that the relationship between negative feelings toward a
27 group would not necessarily translate into disruptive behavior, and that
28
38

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1 to the extent it did so translate, such behavior could be influenced and


2 controlled by appropriate institutional attitudes and attitudes of unit
3 leaders.
4
5 d. Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255)
6 Dr. Korb testified before the Senate Armed Services Committee
7 on March 31, 1993, concerning the likely impact on unit cohesion if
8 homosexuals were permitted to serve openly. According to Dr. Korb,
9 there was no empirical research to support the view that homosexual
10 servicemembers would disrupt unit cohesion, and that such evidence
11 could not be obtained without integrating homosexuals into the military.
12 Dr. Korb did concede, however, that in the short run immediately
13 following integration of homosexual servicemembers, some negative
14 effect on unit cohesion was likely, but did not point to any evidence in
15 support of this view. Dr. Korb testified concerning the experiences of
16 foreign militaries and domestic law enforcement agencies that had
17 integrated homosexual servicemembers, and stated that their
18 integration had not adversely affected unit cohesion or performance in
19 those entities.
20
21 e. Testimony of Dr. William Henderson (Trial Ex. 344 at 248)
22 Dr. Henderson testified before the Senate Armed Services
23 Committee on March 31, 1993, concerning the significance of unit
24 cohesion. Dr. Henderson testified that the "human element" is the most
25 important factor in warfare and the only force that motivates a unit to
26 fight rather than flee or take cover. Dr. Henderson testified that
27 creation of a cohesive unit is "significantly influenced by broad cultural
28
39

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1 values, norms, and characteristics that are the result of a common


2 socialization process and basic agreement among unit members about
3 cultural values." Dr. Henderson testified that two types of unit cohesion
4 exist: horizontal cohesion whereby troops identify with each other, and
5 vertical cohesion whereby troops identify with their leaders. A member
6 of the unit who refuses to conform to the unit's expectations will be
7 isolated, and will undermine the unit's cohesiveness. Based on the
8 views of servicemembers surveyed at that time, approximately 80% of
9 whom opposed integration of homosexuals, homosexual
10 servicemembers were so far outside the acceptable range of shared
11 cultural values that they would not be accepted within military units, and
12 would undermine unit cohesion. Dr. Henderson pointed to no specific
13 empirical study supporting this assertion, however, and measured his
14 testimony by suggesting that a homosexual servicemember who did not
15 disclose his orientation would not disrupt unit cohesion.
16
17 f. Testimony of Dr. David Marlowe (Trial Ex. 344 at 261)
18 Dr. Marlowe testified before the Senate Armed Services
19 Committee on March 31, 1993, concerning the significance of unit
20 cohesion. He testified similarly to Dr. Henderson in his description of
21 the importance of unit cohesion and of the two types of cohesion, i.e.,
22 horizontal and vertical cohesion. While openly acknowledging that in
23 his scientific opinion, there was no empirical data conclusively deciding
24 the question, he opined that openly serving homosexuals could
25 undermine unit cohesion because homosexuality would not be an
26 accepted cultural value among the other members of the unit. Dr.
27 Marlowe qualified his opinion more than Dr. Henderson, however, as
28
40

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1 Dr. Marlowe also opined that a homosexual servicemember who did not
2 "flaunt" his or her homosexuality, acted as a soldier first and foremost,
3 and did not openly discuss his or her homosexuality would not
4 undermine unit cohesion. Dr. Marlowe foresaw no problem with such a
5 person serving in the Armed Forces.
6
7 g. Testimony of General Colin Powell (Trial Ex. 344 at 707)
8 General Colin Powell testified before the Senate Armed Services
9 Committee on July 20, 1993. General Powell expressed his general
10 support for the Policy as then proposed by President Clinton. General
11 Powell testified that in his opinion open homosexuality was
12 incompatible with military service and would undermine unit cohesion.
13 General Powell opined that "behavior too far away from the norm
14 undercuts the cohesion of the group." He testified to his belief that
15 military training on tolerance could not overcome the innate prejudices
16 of heterosexual servicemembers. He also testified that the Policy
17 would improve military readiness, but only in that it settled the question
18 of whether or not homosexuals could serve in the military, as the public
19 debate had been a recent distraction to the military. His testimony
20 implied that any final resolution of the issue, regardless of substance,
21 would improve military readiness.
22 General Powell testified that despite the official position of
23 nondiscrimination towards homosexuals in the militaries of countries
24 such as Canada, Germany, Israel, and Sweden, practice does not
25 always match policy, and homosexuals often are subjected to
26 discrimination in those militaries. General Powell also rejected
27 attempts to draw parallels between exclusion of homosexuals and
28
41

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1 historical exclusion of African-Americans, because "skin color is a


2 benign nonbehavioral characteristic, while sexual orientation is perhaps
3 the most profound of human behavioral characteristics."
4
5 Plaintiff's Evidence: Reports, Exhibits and Expert and Lay Testimony
6 135. Plaintiff introduced evidence demonstrating the Act does not
7 significantly advance the Government's interests in military readiness or
8 unit cohesion. The testimony of former servicemembers provides
9 ample evidence of the Act's effect on the fundamental rights of
10 homosexual members of the United States military. Their testimony
11 also demonstrates that the Act adversely affects the Government's
12 interests in military readiness and unit cohesion. In addition to the
13 testimony from the lay witnesses, Plaintiff introduced other evidence,
14 from witnesses in such specialties as national security policy, military
15 sociology, military history, and social psychology, on whether the Act
16 furthered the Government's interests in military readiness or unit
17 cohesion.
18
19 Discharge of Qualified Servicemembers Despite Troop Shortages
20 136. From 1993 through 2009, Defendants discharged, pursuant to the Act,
21 over 13,000 men and women serving in the United States Armed
22 Forces. During the years between 1994 through 2001, Defendants
23 discharged at least 7,856 servicemembers under the Act, according to
24 a General Accounting Office Report entitled "Financial Costs and Loss
25 of Critical Skills." (Trial Ex. 9 [2005 Government Accountability Office
26 ("GAO") Report on the "Financial Costs and Loss of Critical Skills Due
27 to [the] DOD's Homosexual Conduct Policy"].)
28
42

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1 137. The combined branches of the Armed Forces discharged the following
2 numbers of servicemembers from 1994, the first full year after adoption
3 of the Don't Ask, Don't Tell Act, through the calendar year 2001:
4
5 Number of Servicemembers
6 Year
Discharged
7 1994 61610
8 1995 75711
9 1996 85812
10 1997 99713
1998 1,14514
11
1999 1,04315
12
2000 1,21316
13 2001 1,22717
14
Total discharged 1994 2001 7,856
15
16
17
18 10
(Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers
19 discharged).)
11
20 (Trial Ex. 9, at 8.)
12
21 (Id.)
13
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 14
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
24 15
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42
25 (showing 1,034 servicemembers discharged).)
16
26 (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42
(showing 1,213 servicemembers discharged).)
27 17
(Trial Ex. 85, RFA Resp. No. 37; Trial Ex. 9, at 8; but see id. at 42
28 (showing 1,227 servicemembers discharged).)
43

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1 138. Starting in 2002, after the United States began fighting in Afghanistan,
2 the number of servicemembers discharged under the Act fell sharply,
3 despite the greater raw number of military personnel. As but one
4 example, in 2001, Defendants discharged at least 1,217
5 servicemembers pursuant to the Don't Ask, Don't Tell Act. In 2002, the
6 number discharged under the Act fell to 885.
7 Year Number of Servicemembers
8 Discharged
9 2002 88518
10 2003 77019
11 2004 65320
12 2005 72621
2006 61222
13
2007 62723
14
2008 61924
15 2009 27525
16
Total discharged 2002-2009 5,167
17
18
19
18
20 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing
884 servicemembers discharged).)
21 19
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing
22 769 servicemembers discharged).)
20
23 (Trial Ex. 85, RFA Resp. No. 40.)
21
24 (Trial Ex. 85, RFA Resp. No. 41.)
22
25 (Trial Ex. 85, RFA Resp. No. 42.)
23
26 (Trial Ex. 85, RFA Resp. No. 43.)
24
27 (Trial Ex. 85, RFA Resp. No. 44.)
25
28 (Trial Ex. 85, RFA Resp. No. 45.)
44

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1 139. The decline in discharges after 2001, according to Dr. Nathaniel Frank,
2 illustrates that during wartime the military retains servicemembers
3 known to be homosexual, despite the Don't Ask, Don't Tell Act requiring
4 discharge, because of the heightened need for troops. (Trial Tr. 196:5-
5 198:6, 257:21-258:6, July 13, 2010.)
6
7 Discharge of Servicemembers with Critically Needed Skills and Training
8 140. Among those discharged pursuant to the Act were many
9 servicemembers with critically needed skills. According to the
10 Government's own data, many of those discharged pursuant to the Act
11 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.
14 (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from
15 furthering the military's readiness, the discharge of these service men
16 and women had a direct and deleterious effect on this governmental
17 interest.
18 141. 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
20 Policy" (Trial Ex. 9), Professor Frank pointed out that through fiscal year
21 2003, several hundred medical professionals had been discharged
22 pursuant to the Act, yet a 2003 Senate report described a lack of
23 medical care for wounded troops returning from the Arabian Gulf and
24 the resulting negative impact on physical health and troop morale.
25 (Trial Tr. 258:10-259:2, July 15, 2010.) At the same time that more
26 than one-hundred thousand U.S. troops were deployed to serve in
27 combat in Iraq and Afghanistan, several hundred servicemembers with
28
45

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1 "critical" language skills, including many qualified as Farsi and Arabic


2 speakers and interpreters, were discharged under the Act. (Trial Ex. 9;
3 Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010.)
4
5 The Act's Impact on Military Recruiting
6 142. Dr. Lawrence Korb, currently a senior fellow at the Center for American
7 Progress, with an extraordinary background in military preparedness
8 and national security issues,26 including an appointment under
9 President Ronald Reagan as an Assistant Secretary in the Department
10 of Defense, testified before Congress in 2007 about the difficulty the
11 military was experiencing in finding and retaining enough qualified
12 recruits. The crisis in recruiting qualified candidates became
13 particularly severe after combat began in 2001, he testified. (Trial Tr.
14 1027:24-25, 1028:1-2, July 20, 2010.)
15 143. In general, successful military recruiting efforts come with a very high
16 price tag; Dr. Korb pointed to advertisements various branches of the
17 Armed Forces run during the televised Super Bowl football games as
18 an example of an effective but very costly recruiting tool. Successful
19 recruiting includes not only the costs for sending out military recruiters
20 all around the country, but also the costs of conducting medical and
21 educational testing on recruits as well as the expense of their basic
22 training. The size of the financial investment needed to prepare a
23
24 26
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.
46

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1 servicemember for an operational unit can reach millions of dollars. Dr.


2 Korb testified. (Trial Tr. 1028:18-1029:13, July 20, 2010.) Citing a
3 Pentagon study, Dr. Korb opined that for every person discharged after
4 ten years of service, six new servicemembers would need to be
5 recruited to recover the level of experience lost by that discharge. (Trial
6 Tr. 1029:6-23, July 20, 2010.)
7 144. With that background, Dr. Korb opined the Don't Ask, Don't Tell Act
8 negatively affects military recruiting in two ways: its existence
9 discourages those who would otherwise enlist from doing so, and many
10 colleges and universities will not permit military recruiting or Army
11 ROTC programs on campus because the Act's requirements violate
12 their nondiscrimination policies. (Trial Tr. 1030:12-21, July 20, 2010.)
13 145. 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
15 who are discharged under it and those who decide not to re-enlist
16 because of it. He conceded, however, that it is very difficult to quantify
17 the number of those who decide not to enlist because of the Policy.
18 (Trial Tr. 1030:1-10, July 20, 2010.) Professor Frank also testified on
19 this subject, and based on data from the U.S. Census, the UCLA
20 School of Law Williams Institute, and other sources, opined that if the
21 Act were repealed, the military would gain approximately 40,000 new
22 recruits and approximately 4,000 members would re-enlist every year
23 rather than leave voluntarily. (Trial Tr. 205:6-17, July 13, 2010.)
24 146. The 2005 GAO Report estimated that over the ten-year period after
25 enactment of the Act, "it could have cost the [Department of Defense]
26 about $95 million in constant fiscal year 2004 dollars to recruit
27 replacements for service members separated under the policy. Also
28
47

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1 the Navy, Air Force, and Army estimated that the cost to train
2 replacements for separated service members by occupation was
3 approximately $48.8 million, $16.6 million, and $29.7 million,
4 respectively." (Trial Ex. 85, RFA Resp. No. 21.)
5
6 Admission of Lesser Qualified Enlistees
7 147. Defendants discharged over 13,000 members of the Armed Forces
8 under the Don't Ask, Don't Tell Act since 1993. (Trial Tr. 195:5-8,
9 203:21-204:5.) Plaintiff introduced evidence that while Defendants
10 continued to enforce the Act by discharging servicemembers under it –
11 albeit in dramatically reduced numbers – after 2001, they also began to
12 admit more convicted felons and misdemeanants into the Armed
13 Forces, by granting so-called "moral waivers"27 to the policy against
14 such admissions. (Trial Tr. 199:1-17, July 13, 2010; see supra notes
15 10-25 and accompanying text.)
16 148. In addition to the increased numbers of convicted felons and
17 misdemeanants allowed to join the ranks of the military forces,
18 Professor Frank testified that increased numbers of recruits lacking the
19 required level of education and physical fitness were allowed to enlist
20 because of troop shortages during the years following 2001. (Trial Tr.
21 199:1-11, July 13, 2010.) Log Cabin's evidence went uncontradicted
22 that those who are allowed to enlist under a "moral waiver" are more
23 likely to leave the service because of misconduct and more likely to
24
25
26 27
"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.)
48

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1 leave without fulfilling their service commitment than others who joined
2 the Armed Forces. (Trial Tr. 209:2-13, July 13, 2010.)
3 149. Dr. Korb testified that eventually the troop shortages after 2001 caused
4 the U.S. Armed Forces to lower educational and physical fitness entry
5 standards as well as increase the number of "moral waivers" to such an
6 extent that, in his opinion, it became difficult for the military to carry out
7 its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same
8 time, discharging qualified servicemembers under the Don't Ask, Don't
9 Tell Act simply "does not make sense" in terms of military preparedness
10 because, in his words, the military is "getting rid of those who are
11 qualified to serve and admitting those who aren't." (Trial Tr. 1025:15-
12 20, July 20, 2010.)
13
14 Other Effects of the Policy
15 150. Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has
16 on military preparedness. He opined that in order for the military to
17 perform its mission successfully, it must mold persons from vastly
18 different backgrounds who join it into a united and task-oriented
19 organization. He described the military as a meritocracy, but testified
20 that the Don't Ask, Don't Tell Act detracts from the merit-based nature
21 of the organization, because discharges under the Act are not based on
22 the servicemember's failure to perform his or her duties properly, or on
23 the effect of the soldier's presence on the unit's morale or cohesion.
24 (Trial Tr. 1031:2-1033:10, July 20, 2010.)
25
26
27
28
49

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1 Decreased and Delayed Discharge of Suspected Violators of the Act


2 151. LCR also produced evidence demonstrating that Defendants routinely
3 delayed the discharge of servicemembers suspected of violating the
4 Act's provisions until after they had completed their overseas
5 deployments. In other words, if Defendants began an investigation of a
6 servicemember suspected of violating the Act, the investigation would
7 be suspended if the subject received deployment orders; not until he or
8 she returned from combat – assuming this occurred, of course – would
9 the investigation be completed and the servicemember discharged if
10 found to have violated the Act. Thus, Defendants deployed
11 servicemembers under investigation for violating the Act to combat
12 missions or, if they were already so deployed, delayed the completion
13 of the investigation until the end of the deployment. (Trial Tr. 196:5-24,
14 July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11,
15 188:13-190:9, Apr. 16, 2010.)
16 152. This evidence, in particular, directly undermines any contention that the
17 Act furthers the Government's purpose of military readiness, as it
18 shows Defendants continue to deploy gay and lesbian members of the
19 military into combat, waiting until they have returned before resolving
20 the charges arising out of the suspected homosexual conduct. If the
21 warrior's suspected violation of the Act created a threat to military
22 readiness, to unit cohesion, or to any of the other important
23 Government objectives, it follows that Defendants would not deploy him
24 or her to combat before resolving the investigation. It defies logic that
25 the purposes of the Act could be served by suspending the
26 investigation during overseas deployments, only to discharge a
27 servicemember upon his or her return to a non-combat station.
28
50

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1 153. Taken as a whole, the evidence introduced at trial shows that the effect
2 of the Act has been, not to advance the Government's interests of
3 military readiness and unit cohesion, much less to do so significantly,
4 but to harm that interest. The testimony demonstrated that since its
5 enactment in 1993, the Act has harmed efforts of the all-volunteer
6 military to recruit during wartime.
7 154. The Act has caused the discharge of servicemembers in occupations
8 identified as "critical" by the military, including medical professionals
9 and Arabic, Korean, and Farsi linguists.
10 155. At the same time that the Act has caused the discharge of over 13,000
11 members of the military, including hundreds in critical occupations, the
12 shortage of troops has caused the military to permit enlistment of those
13 who earlier would have been denied entry because of their criminal
14 records, their lack of education, or their lack of physical fitness.
15
16 The Act is Not Necessary to Advance the Government's Interests
17 Defendants' Admissions
18 156. Defendants have admitted that, far from being necessary to further
19 significantly the Government's interest in military readiness, the Don't
20 Ask, Don't Tell Act actually undermines that interest. President Obama,
21 the Commander-in-Chief of the Armed Forces, stated on June 29,
22 2009:
23 "Don't Ask, Don't Tell" doesn't contribute to our national
security . . . preventing patriotic Americans from serving their
24 country weakens our national security . . . . [R]eversing this
policy [is] the right thing to do [and] is essential for our national
25 security.
(Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.)
26
27
28
51

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1 157. President Obama also stated regarding the Act on October 10, 2009,
2 "We cannot afford to cut from our ranks people with the critical skills we
3 need to fight any more than we can afford – for our military's integrity –
4 to force those willing to do so into careers encumbered and
5 compromised by having to live a lie." (Trial Ex. 306; Trial Ex. 85, RFA
6 Resp. No. 12.)
7 158. Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed
8 these sentiments through a verified Twitter account, posted to the Joint
9 Chiefs of Staff website: "Stand by what I said [testifying in the U.S.
10 Senate Armed Services Committee on February 2, 2010]: Allowing
11 homosexuals to serve openly is the right thing to do. Comes down to
12 integrity." (Trial Ex. 330.)
13
14 Defendants' Contention that the Act is Necessary to Protect Unit
15 Cohesion and Privacy
16 159. Defendants point to the Act's legislative history and prefatory findings
17 as evidence that the Policy is necessary to protect unit cohesion and
18 heterosexual servicemembers' privacy. In particular, they quote and
19 rely on General Colin Powell's statements in his testimony before
20 Congress in 1993.
21 160. General Powell expressed his qualified support for the continued
22 service of gays and lesbians in the Armed Forces and the narrow
23 nature of his concerns. (Trial Ex. 344 [Policy Concerning
24 Homosexuality in the Armed Forces: Hearings Before the S. Comm. on
25 Armed Servs., 103rd Cong. (statement of General Colin Powell,
26 Chairman, Joint Chiefs of Staff)] at 709). He emphasized his concern
27 that "active military service is not an everyday job in an ordinary
28
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1 workplace . . . . There is often no escape from the military environment


2 for days, weeks and often months on end. We place unique demands
3 and constraints upon our young men and women not the least of which
4 are bathing and sleeping in close quarters." (Id. at 762; 709 ("Our
5 concern has not been about homosexuals seducing heterosexuals or
6 heterosexuals attacking homosexuals . . . .").)
7 161. Plaintiff introduced uncontradicted testimony that General Powell has
8 changed his views since 1993 on the necessity of the Policy and now
9 agrees with the current Commander-in-Chief that it should be reviewed.
10 (Trial Tr. 221:7-11, July 13, 2010.)
11 162. Plaintiff also produced powerful evidence demonstrating that the Act is
12 not necessary in order to further the governmental interest that General
13 Powell expressed, i.e., unit cohesion and particularly the concern that
14 cohesion might be eroded if openly homosexual servicemembers
15 shared close living quarters with heterosexuals.
16 163. Michael Almy, who during thirteen years of active service lived in
17 dozens of different types of military housing on at least three
18 continents, testified his quarters ranged from a villa in Eskan Village,
19 Saudi Arabia, where he and the others quartered there each had
20 private bedrooms and bathrooms, to a dormitory-type facility at the
21 Prince Sultan Air Base in Saudi Arabia, where at first he had a private
22 room and bath until the troop build-up before the invasion of Iraq led to
23 several men sharing a room, with a private bathroom that was used by
24 only one person at a time, to temporary quarters in a tent at Balad Air
25 Base in Iraq shared by six to eight men who obtained limited privacy by
26 hanging up sheets.
27
28
53

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1 164. In his deployments to Saudi Arabia and Iraq, Almy was never quartered
2 in housing that had open bay showers, nor did he ever see such
3 housing for enlisted members or officers. (Trial Tr. 748:3-750:25, July
4 16, 2010.) The typical arrangement in Saudi Arabia was for enlisted
5 servicemembers and officers to have the same type of facilities,
6 including bathroom and shower facilities; officers typically did not have
7 to share rooms, and enlisted personnel usually shared a bedroom and
8 bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Open bay showers are
9 the exception in military quarters; most service members only use them
10 during basic training. (Trial Tr. 759:12-19, July 16, 2010.)
11 165. 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
13 beds and shared a large communal bathroom with toilets in individual
14 stalls and semi-private showers. (Trial Tr. 1154:25-1155:15, July 20,
15 2010.) Anthony Loverde testified that only during basic training was he
16 housed in barracks where open bay showers were the only option; he
17 had access to single stall shower facilities even when stationed at
18 Bagram Air Base in Afghanistan and at Balad Air Base in Iraq. (Trial
19 Tr. 1378:3-15, 1385:18-1386:12, July 21, 2010.)
20 166. Other servicemembers confirmed this testimony. Stephen Vossler
21 testified regarding his living quarters while he served as an enlisted
22 man in the Army; he shared a "not spacious" bedroom and also a
23 bathroom with a roommate. (Trial Tr. 330:4-11, July 14, 2010.)
24 Although Vossler learned his roommate was gay, Vossler had no
25 problems sharing quarters with him and thought he was a good
26 roommate. (Trial Tr. 329:20-330:21, July 14, 2010.)
27
28
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1 167. Professor Aaron Belkin confirmed this evidence in his testimony; his
2 research into military architecture revealed that apart from basic
3 training sites and service academies where there are open showers,
4 servicemembers usually have access to single stall showers. (Trial Tr.
5 617:21-619:1, July 15, 2010.) According to Professor Belkin, "the army,
6 in recent years, has implemented something called the one-plus-one
7 barracks design standard. What that means is that servicemembers
8 are housed in an arrangement where they each have their own
9 bedroom and there is a bathroom between the two bedrooms that they
10 share." (Trial Tr. 618:8-13, July 15, 2010.) Three-fourths of the troops
11 quartered in combat zones in Afghanistan and Iraq had access to single
12 stall showers, according to his research. (Trial Tr. 626:3-8, July 15,
13 2010.)
14 168. Plaintiff's evidence regarding unit cohesion was equally plentiful and
15 persuasive. The testimony of both its lay and expert witnesses
16 revealed that the Act not only is unnecessary to further unit cohesion,
17 but also harms the Government's interest.
18 169. After Michael Almy was relieved of his command abruptly under the
19 Act, he witnessed firsthand what occurred when an unprepared junior
20 officer was forced to take over. He testified that "[t]he maintenance of
21 the equipment, the mission overall, the availability – the up time of the
22 equipment, the availability of the equipment to meet the mission
23 suffered" and there was "a huge detrimental effect to the morale" of the
24 troops he commanded after he was relieved of his command. (Trial Tr.
25 813:21-25, 814: 1-6, July 16, 2010.) Almy testified, "Virtually every day
26 on my base on Spangdahlem, I would encounter one of my former
27 troops who wanted me back on the job as their officer and leader."
28
55

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1 (Trial Tr. 814:2-6, July 16, 2010.) His assessment was confirmed by
2 another officer in the squadron, who wrote that the squadron "fell apart"
3 after Major Almy was relieved of his duties, illustrating "how important
4 Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex.
5 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt.,
6 USAF, 606th Air Control Squadron].)
7 170. Jenny Kopfstein's commanding officer wrote that she was a "hard
8 working and dedicated junior officer who excelled as an [o]fficer of the
9 [d]eck" who "played an important role in enhancing the ship's strong
10 reputation." (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and
11 Counseling Record]; Trial Tr. 966:14-17.) He specifically noted that
12 "[h]er sexual orientation has not disrupted good order and discipline on
13 board USS SHILOH." (Trial Ex. 139; Trial Tr. 966:23-24.) Kopfstein
14 testified that after she stopped concealing her homosexuality while
15 serving on the USS Shiloh, she had many positive responses, and the
16 ability of her fellow crew members to trust her improved, thus aiding the
17 establishment of teamwork. (Trial Tr. 951:10-11, 979:8-21, 25, 980:1,
18 July 20, 2010.)
19 171. Anthony Loverde's superiors unquestionably felt that his discharge
20 pursuant to the Don't Ask, Don't Tell Act did not further the
21 Government's interest in unit cohesion. In recommending the Air Force
22 retain Loverde, they commended him for being "nothing less than an
23 outstanding [non-commissioned officer]" and "a strong asset" with "an
24 exceptional work ethic" and "the highest level of military bearing,
25 honesty, and trustworthiness." (Trial Exs. 136 [Letter from Michael
26 Yakowenko, CM Sgt.], 137 Letter from Richard Horn, SM Sgt.].) One
27 wrote: "If I ever had the opportunity to build my 'dream team' for work, I
28
56

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1 would take an entire crew of SSgt. Loverde over most other workers . . .
2 ." (Trial Ex. 137.)
3 172. Robert MacCoun, Professor of Law and Public Policy at the University
4 of California, Berkeley, and one of the contributors to the 1993 Rand
5 Report on the Don't Ask, Don't Tell Act, testified regarding social and
6 task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.)
7 Professor MacCoun holds a Ph.D. in psychology from Michigan State
8 University, was a post-doctoral fellow in psychology and law at
9 Northwestern University, spent seven years as a behavioral scientist at
10 the RAND Corporation,28 and has a distinguished research and
11 publication record. (Trial Tr. 856:16-864:7, July 16, 2010.) The Court
12 found his testimony cogent and persuasive.
13 173. According to Professor MacCoun, the RAND working group concluded
14 that task cohesion was paramount; it was a more important predictor of
15 military performance than social cohesion, and service in the Armed
16 Forces by openly homosexual members was not seen as a serious
17 threat to task cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:21-
18 25, 876:13-21, July 16, 2010.) Therefore, the recommendation to
19 Secretary of Defense Les Aspin from the RAND Corporation in the1993
20 Report was that sexual orientation should not be viewed as germane to
21 service in the military; the 1993 Report made various recommendations
22 regarding the implementation of this change. (Trial Ex. 8 [Sexual
23 Orientation and U.S. Military Personnel Policy: Options and
24 Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16, 2010.)
25
26
28
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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1 174. Thus, the evidence at trial demonstrated that the Act does not further
2 significantly the Government's important interests in military readiness
3 or unit cohesion, nor is it necessary to further those interests.
4 Defendants' discharge of homosexual servicemembers pursuant to the
5 Act not only has declined precipitously since the United States began
6 combat in Afghanistan in 2001, but Defendants also delay individual
7 enforcement of the Act while a servicemember is deployed in a combat
8 zone. If the presence of a homosexual soldier in the Armed Forces
9 were a threat to military readiness or unit cohesion, it surely follows that
10 in times of war it would be more urgent, not less, to discharge him or
11 her, and to do so with dispatch.
12 175. The abrupt and marked decline – 50% from 2001 to 2002 and steadily
13 thereafter – in Defendants' enforcement of the Act following the onset of
14 combat in Afghanistan and Iraq, and Defendants' practice of delaying
15 investigation and discharge until after combat deployment, demonstrate
16 that the Act is not necessary to further the Government's interest in
17 military readiness.
18 176. In summary, Defendants have failed to show the Don't Ask, Don't Tell
19 Policy "significantly furthers" the Government's interests or that it is
20 "necessary" in order to achieve those goals. Plaintiff has relied not just
21 on the admissions described above that the Act does not further military
22 readiness, but also has shown the following:
23 • by impeding the efforts to recruit and retain an all-volunteer
24 military force, the Act contributes to critical troop shortages and
25 thus harms rather than furthers the Government's interest in
26 military readiness;
27
28
58

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1 • by causing the discharge of otherwise qualified servicemembers


2 with critical skills such as Arabic, Chinese, Farsi, and Korean
3 language fluency; military intelligence; counterterrorism; weapons
4 development; and medical training, the Act harms rather than
5 furthers the Government's interest in military readiness;
6 • by contributing to the necessity for the Armed Forces to permit
7 enlistment through increased use of the "moral waiver" policy and
8 lower educational and physical fitness standards, the Act harms
9 rather than furthers the Government's interest in military
10 readiness;
11 • Defendants' actions in delaying investigations regarding and
12 enforcement of the Act until after a servicemember returns from
13 combat deployment show that the Policy is not necessary to
14 further the Government's interest in military readiness or unit
15 cohesion;
16 • by causing the discharge of well-trained and competent
17 servicemembers who are well-respected by their superiors and
18 subordinates, the Act has harmed rather than furthered unit
19 cohesion and morale;
20 • the Act is not necessary to protect the privacy of servicemembers
21 because military housing quarters already provide sufficient
22 protection for this interest.
23 177. The Don't Ask, Don't Tell Act infringes the fundamental rights of United
24 States servicemembers in many ways, some described above. The Act
25 denies homosexuals serving in the Armed Forces the right to enjoy
26 "intimate conduct" in their personal relationships.
27
28
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1 178. The Act denies them the right to speak about their loved ones while
2 serving their country in uniform; it punishes them with discharge for
3 writing a personal letter, in a foreign language, to a person of the same
4 sex with whom they shared an intimate relationship before entering
5 military service.
6 179. The Act discharges them for including information in a personal
7 communication from which an unauthorized reader might discern their
8 homosexuality.
9 180. Michael Almy, Anthony Loverde, and Jenny Kopfstein all testified that
10 the Act prevented them from talking openly with their fellow
11 servicemembers about everyday personal matters or from soliciting
12 after hours with their colleagues. (Trial Tr. 821:19-822:9, July 16, 2010
13 (Almy); Trial Tr. 1360:1-1361:17, July 21, 2010 (Loverde); Trial Tr.
14 931:22-932:11, July 16, 2010; Trial Tr. 957:6-22, July 20, 2010
15 (Kopfstein).) This testimony, as well as that from Steven Vossler (Trial
16 Tr. 327:12-328:20, July 14, 2010), demonstrates that the Act's
17 restrictions on speech not only are broader than reasonably necessary
18 to protect the Government's substantial interests, but also actually
19 impede military readiness and unit cohesion rather than further these
20 goals.
21 181. Many of the lay witnesses also spoke of the chilling effect the Act had
22 on their ability to bring violations of military policy or codes of conduct to
23 the attention of the proper authorities. Joseph Rocha, eighteen- years-
24 old and stationed in Bahrain, felt restrained from complaining about the
25 extreme harassment and hazing he suffered because he feared that he
26 would be targeted for investigation under the Act if he did so. (Trial Tr.
27 488:20-489:14, July 15, 2010.) His fear was so great, if fact, that he
28
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1 initially refused to answer the questions of an investigating officer.


2 (Trial Tr. 519:16-510:10-15, July 15, 2010.)
3 182. John Nicholson and Anthony Loverde also testified about a similar
4 chilling effect on their speech when overhearing or being subjected to
5 homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July
6 20, 2010 (Nicholson); Trial Tr. 1364:16-1365:25, July 21, 2010
7 (Loverde).)
8 183. The Act prevents servicemembers from openly joining organizations,
9 such as the plaintiff in this lawsuit, that seek to change the military's
10 policy on gay and lesbian servicemembers; it also prevents them from
11 petitioning the Government for redress of grievances. John Doe, for
12 example, feared retaliation and dismissal if he joined the Log Cabin
13 Republicans under his true name or testified during trial; thus, he was
14 forced to use a pseudonym and to forgo testifying during trial. (Ex. 38
15 [Doe Decl.] ¶¶ 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-
16 709:4, July 16, 2010.)
17 184. Furthermore, as discussed above, the Act punishes servicemembers
18 with discharge for writing a private letter, in a foreign language, to a
19 person of the same sex with whom they shared an intimate relationship
20 before volunteering for military service. It subjects them to discharge
21 for writing private e-mail messages, in a manner otherwise approved, to
22 friends or family members, if those communications might lead the
23 (unauthorized) reader to discern the writer's sexual orientation.
24 185. These consequences demonstrate that the Act's restrictions on speech
25 are broader than reasonably necessary to protect the Government's
26 interest.
27
28
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1 186. The Act's restrictions on speech lead to the discharge of


2 servicemembers with qualifications in critically-needed occupations,
3 such as foreign language fluency and information technology.
4 187. The net effect of these discharges, as revealed not only in the
5 testimony of the lay witnesses but also of the experts who testified and
6 Defendants' own admissions regarding the numbers of servicemembers
7 discharged and the costs of recruiting and maintaining an all-volunteer
8 military force, compel the conclusion that the Act restricts speech more
9 than reasonably necessary to protect the Government's interests.
10
11 CONCLUSIONS OF LAW
12 Jurisdiction
13 1. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§
14 1331, 1346 and 2201. Venue is properly laid in the Central District of
15 California under 28 U.S.C. § 1391(e)(2) and (3).
16
17 Standing
18 2. Plaintiff Log Cabin Republicans, a non-profit corporation, has
19 established standing to bring and maintain this suit on behalf of its
20 members.
21 3. Plaintiff bears the burden of establishing its standing to invoke federal
22 jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
23 (1992).
24 4. To bring suit on behalf of its members, an association must establish
25 the following: "(a) [at least one of] its members would otherwise have
26 standing to sue in [his or her] own right; (b) the interests it seeks to
27 protect are germane to the organization's purpose; and (c) neither the
28
62

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1 claim asserted nor the relief requested requires the participation of


2 individual members in the lawsuit." Hunt v. Wash. State Apple Adver.
3 Comm'n, 432 U.S. 333, 343 (1977).
4 5. To satisfy the first element of associational standing, a organization
5 must demonstrate constitutional standing as to at least one member of
6 the organization, as follows: (1) injury in fact; (2) caused by the
7 defendants; (3) which likely will be redressed by a favorable decision by
8 the federal court. Lujan, 504 U.S. at 560-61; see also Elk Grove
9 Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
10 6. As to the associational standing requirements, Plaintiff established at
11 trial that the interests it seeks to vindicate in this litigation are germane
12 to LCR's purposes, satisfying the second requirement for associational
13 standing.
14 7. Plaintiff satisfied the third requirement of associational standing, "that
15 the suit not demand the participation of individual members."
16 Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d
17 1401, 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only
18 declaratory and injunctive relief in its First Amended Complaint; when
19 "the claims proffered and relief requested do not demand individualized
20 proof on the part of its members," such as when only declaratory and
21 prospective relief are sought, the individual members of an association
22 need not participate directly in the litigation. Id.; see also Hunt, 432
23 U.S. at 343 (citing Warth v. Seldin, 422 U.S. 490, 515 (1975)).
24 8. Plaintiff satisfied the first requirement of associational standing as well,
25 i.e., whether there exists at least one member of the association who
26 could maintain this suit in his or her own right. Defendants' contention
27 that neither of the two members Plaintiff relies upon to confer
28
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1 associational standing on it meets the requirements for that role,


2 because neither was a member of Log Cabin Republicans continuously
3 from the date of the commencement of this action until the date of trial,
4 lacks merit.
5 9. Standing in this case should be examined as of April 28, 2006, the date
6 Plaintiff filed its First Amended Complaint. (See Doc. No. 170 at 15.)
7 As of that date, at least one of Log Cabin's members, John Nicholson,
8 had standing and could have pursued the action individually. See
9 supra Findings of Fact Nos. 12-20. Nicholson's membership in Log
10 Cabin Republicans has been uninterrupted and continuous since April
11 28, 2006 to the present.
12 10. Nicholson satisfies all three of the requirements for constitutional
13 standing, i.e., "injury in fact" caused by the defendants (his discharge
14 by Defendants pursuant to the Policy), which is redressable by the relief
15 sought in this lawsuit, as he testified he would rejoin the Army if the
16 policy was no longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.)
17 11. Even if the Court looks to the date the original Complaint was filed as
18 the relevant one for standing purposes, however, Plaintiff still satisfies
19 the associational standing requirements, as Plaintiff proved by a
20 preponderance of the evidence at trial that John Doe was a member in
21 good standing as of October 12, 2004. See supra Findings of Fact
22 Nos. 12-22.
23 12. John Doe has established the three elements of constitutional standing:
24 he faces a concrete injury caused by Defendants – discharge from the
25 Army Reserve – which is likely, not speculative, in nature, given the
26 mandatory language of the Don't Ask, Don't Tell Act, see 10 U.S.C. §
27
28
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1 654(b)(2), and which would be redressed by a favorable by the Court in


2 this action.
3 13. A plaintiff who has established standing must retain his or her "personal
4 stake" in the litigation throughout the proceedings. See Lewis v. Cont'l
5 Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517
6 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal
7 stake" in the lawsuit, a court loses the ability to grant relief and must
8 dismiss the action on the basis of mootness because the plaintiff no
9 longer satisfies the redressability element of constitutional standing.
10 See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 68-72
11 (1997) (mootness); Williams, 517 F.3d at 1128 (redressability).
12 14. The cases cited above addressing loss of standing do not arise in an
13 associational standing context, however. Whether one regards Plaintiff
14 Log Cabin Republicans or John Doe as the party whose standing is at
15 issue, neither lost a "personal stake" in the litigation when Doe's annual
16 period of membership lapsed.
17 15. After the year covered by the initial payment of membership dues, Doe
18 still served in the Army Reserve and still was subject to discharge
19 under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake
20 in the outcome of the case, and his injury – his susceptibility to
21 discharge under the Act – continued to be redressable by favorable
22 resolution of the lawsuit.
23 16. Nor has standing been lost in this case because of a change in
24 circumstances rendering the subject matter of the action moot. The Act
25 has not been repealed and the challenged policy is still in effect; Doe is
26
27
28
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1 still serving and subject to discharge under it;29 Nicholson already has
2 been discharged under it and cannot re-enlist as he wishes to do.
3 Finally, the dispute over the constitutionality of the Act has not been
4 resolved.
5 17. Likewise, the redressability aspect of constitutional standing remains
6 alive despite the lapse in Doe's dues-paying membership status. Doe's
7 imminent injury – the mandatory nature of his discharge under the
8 policy – would be addressed through a favorable ruling in this action.
9 18. Even if Defendants were correct that Log Cabin Republicans failed to
10 prove standing through Doe based on the lack of evidence he paid
11 dues after 2005, it does not follow that Plaintiff could not maintain its
12 claims. Plaintiff had standing to file suit based on the undisputed
13 evidence of Doe's membership as of October 12, 2004, the date Log
14 Cabin Republicans filed this action. (See supra Findings of Fact No. 7.)
15 19. Assuming Doe's membership lapsed a year later, in early September
16 2005, Plaintiff lacked standing temporarily from that time until April 28,
17 2006, when Nicholson became a member of Log Cabin Republicans.
18 Courts have recognized that a plaintiff who possesses standing when it
19 brings suit, later loses it, and then regains standing before entry of
20 judgment, may still maintain its claims. See, e.g., Schreiber Foods, Inc.
21 v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005) (finding
22 plaintiff that owned patent at outset of litigation, assigned it to
23 subsidiary, then reacquired it before judgment may maintain an
24 infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64,
25 70, 73 (2005).
26
29
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 20. Thus, assuming that Log Cabin Republicans lacked standing at some
2 point between early September 2005 and April 28, 2006, it still may
3 maintain its claims now.
4 21. Defendants' suggestion that LCR "manufactured" its standing for
5 purposes of this lawsuit lacks merit. (See Doc. No. 188 [Defs.'
6 Proposed Findings of Fact & Conclusions of Law] at 3.) The only
7 authority Defendants cite on this point is Washington Legal Foundation
8 v. Leavitt, 477 F. Supp. 2d 202, 211 (D.D.C. 2007), holding the
9 manufacture of standing "weakens" an association's ability to maintain
10 a lawsuit on behalf of its members.
11 22. Washington Legal Foundation was based on facts not present in the
12 record here, however. As that court explained, the Washington Legal
13 Foundation's board of directors explicitly decided to bring suit, and then
14 set about to find and recruit persons who would confer standing on it.
15 By contrast, the initiative for filing the present action came from the rank
16 and file of the LCR membership. See supra Findings of Fact No. 22.
17 23. Washington Legal Foundation is not binding authority on this Court, but
18 to the extent it provides guidance, it only holds that "manufacture" of
19 standing weakens but does not destroy an association's ability to
20 maintain its suit. Furthermore, there is no evidence here that LCR
21 manufactured standing, so Washington Legal Foundation is factually
22 dissimilar as well.
23
24 Evidence Considered by the Court
25 Plaintiff's Burden on a Facial Challenge
26 24. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court
27 held a plaintiff challenging the validity of a law on its face must establish
28
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1 that "no set of circumstances exists under which the Act would be
2 valid." Id. at 745. The defendants in Salerno were detained pending
3 trial under the provisions of the Bail Reform Act; they challenged the
4 Act, on its face, claiming it unconstitutionally violated the Fifth and
5 Eighth Amendments.
6 25. More recently, in Washington State Grange v. Washington State
7 Republican Party, 552 U.S. 442 (2008), the Supreme Court noted the
8 criticisms leveled at the Salerno standard and recognized an alternative
9 the test as follows: "a facial challenge must fail where the statute has a
10 'plainly legitimate sweep.'" Id. at 449 (citing Washington v. Glucksberg,
11 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)); see also
12 United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, 1587
13 (2010) (citing Glucksberg and noting the existence of two standards for
14 facial challenges outside the First Amendment context).
15 26. The Court considers the evidence presented at trial in this facial
16 challenge not for the purpose of considering any particular application
17 of the Don't Ask, Don't Tell Act, but rather for the permissible purposes
18 described in Conclusions of Law No.36-41, infra.
19 27. Plaintiff's evidence, as described above, amply illustrates that the Act
20 does not have a "plainly legitimate sweep." Rather, Plaintiff has proven
21 that the Act captures within its overreaching grasp such activities as
22 private correspondence between servicemembers and their family
23 members and friends, and conversations between servicemembers
24 about their daily off-duty activities. (See supra Findings of Fact Nos.
25 27, 28, 75, 93, 96-99, 113.)
26
27
28
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1 28. Plaintiff also has proven that the Act prevents servicemembers from
2 reporting violations of military ethical and conduct codes, even in
3 outrageous instances, for fear of retaliatory discharge. All of these
4 examples, as well as others contained in the evidence described
5 above, reveal that Plaintiff has met its burden of showing that the Act
6 does not have a "plainly legitimate sweep." (See supra Findings of
7 Fact Nos. 53, 76, 92, 112.)
8 29. Defendants rely on Salerno and its progeny, particularly Cook v. Gates,
9 528 F.3d 42 (1st Cir. 2008), in urging the Court to reject Log Cabin's
10 facial challenge. (Defs.' Mem. Cont. Fact & Law at 5; Trial Tr. 1670:14-
11 21-1671:23, 1684:12-14, July 23, 2010.) This reliance is misplaced.
12 30. In Cook, the First Circuit reasoned a facial challenge the Don't Ask,
13 Don't Tell Act failed because Lawrence "made abundantly clear that
14 there are many types of sexual activity that are beyond the reach of that
15 opinion," and "the Act includes such other types of sexual activity"
16 because it "provides for the [discharge] of a service person who
17 engages in a public homosexual act or who coerces another person to
18 engage in a homosexual act." 528 F.3d at 56 (citing Lawrence, 539
19 U.S. at 578).
20 31. The Court is not bound by this out-of-Circuit authority, and furthermore
21 finds the logic of Cook unpersuasive. First, Cook employed the
22 formulation from Salerno rather than the Supreme Court's more recent
23 articulation of the test for facial challenges set forth in Washington State
24 Grange. Moreover, the examples the Cook court cited as grounds for
25 discharge "under the Act" actually are bases for discharge of any
26 servicemember, whether the conduct in question is homosexual or
27 heterosexual. In fact, the Cook decision provides no citation to any
28
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1 provision of the Don't Ask, Don't Tell Act specifically listing either of its
2 examples as grounds for discharge under that legislation.
3
4 Evidence Properly Considered on a Facial Challenge
5 32. The Court finds meritless Defendants' contention that because Plaintiff
6 challenges the constitutionality of the statute on its face, rather than
7 challenging its application, the only evidence the Court should – indeed
8 may – consider, is the statute itself and the bare legislative history.
9 33. In United States v. O'Brien, 391 U.S. 367 (1968), the government
10 charged and convicted the defendant for burning his draft card; the
11 defendant contended the law under which he was prosecuted was
12 unconstitutional because Congress enacted it for the unlawful purpose
13 of suppressing speech. Id. at 383. The Supreme Court rejected this
14 argument, holding "under settled principles the purpose of Congress,
15 as O'Brien uses that term, is not a basis for declaring this legislation
16 unconstitutional. It is a familiar principle of constitutional law that this
17 Court will not strike down an otherwise constitutional statute on the
18 basis of an alleged illicit legislative motive." Id.
19 34. In part, the O'Brien Court founded its reasoning on the difficulty of
20 discerning a unified legislative "motive" underlying any given
21 enactment: "What motivates one legislator to make a speech about a
22 statute is not necessarily what motivates scores of others to enact it . . .
23 ." Id. at 384. Thus, O'Brien instructs that when "a statute . . . is, under
24 well-settled criteria, constitutional on its face," a court should not void
25 the law based on statements by individual legislators. Id. Thus, while
26 examining the legislative record, the Court must not pay heed to any
27 illegitimate motivations on the part of the enacting lawmakers.
28
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1 35. O'Brien does not stand for the proposition urged by Defendants,
2 however, that when deciding whether a challenged law "is, under well-
3 settled criteria, constitutional on its face," this Court should limit itself to
4 examining only the statute's legislative history. In fact, in the O'Brien
5 decision the Supreme Court specifically pointed to two cases, Grosjean
6 v. American Press Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot,
7 364 U.S. 339 (1960), noting that they "stand, not for the proposition that
8 legislative motive is a proper basis for declaring a statute
9 unconstitutional, but that the inevitable effect of a statute on its face
10 may render it unconstitutional." O'Brien, 391 U.S. at 394 (emphasis
11 added).
12 36. In both Grosjean and Gomillion, the Court noted, the purpose of the law
13 was irrelevant "because [of] the inevitable effect – the necessary scope
14 and operation." Id. at 385 (citations omitted).
15 37. Therefore, under O'Brien, Grosjean, and Gomillion, the court may admit
16 and examine evidence to determine the "scope and operation" of a
17 challenged statute; nothing in any of these authorities limits the Court's
18 discretion to consider evidence beyond the legislative history.
19 38. Defendants rely in vain on City of Las Vegas v. Foley, 747 F.2d 1294
20 (9th Cir. 1984), as support for their position regarding the inadmissibility
21 of Plaintiff's evidence. Foley arose out of a discovery dispute in a facial
22 constitutional challenge to a Las Vegas zoning ordinance restricting the
23 location of "sexually oriented businesses." Id. at 1296. One of the
24 affected businesses sought to depose city officials regarding their
25 motives in enacting the ordinance; after the city failed in its efforts to
26 obtain a protective order from the District Court, it sought mandamus
27 relief from the Ninth Circuit Court of Appeals. Id.
28
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1 39. The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged
2 illicit legislative motive," and relying on O'Brien, granted the writ,
3 directing the district court to issue a protective order. Id. at 1299. In
4 rejecting the arguments of the party seeking to depose the legislators,
5 the Foley court described the following types of evidence appropriately
6 considered by a court asked to determine a First Amendment
7 challenge: "objective indicators as taken from the face of the statute,
8 the effect of the statute, comparison to prior law, facts surrounding
9 enactment of the statute, the stated purpose, and the record of the
10 proceedings." Foley, 747 F.2d at 1297 (citations omitted).
11 40. The Ninth Circuit also noted in Foley that "basic analysis under the First
12 Amendment . . . has not turned on the motives of the legislators, but on
13 the effect of the regulation." Id. at 1298 (emphasis added).
14 41. Defendants correctly point out that the authorities discussed above hold
15 that isolated (and in this case, sometimes inflammatory) statements of
16 Senators and House members during the Don't Ask, Don't Tell Act
17 legislative hearings should not be considered by the Court.
18 42. Nevertheless, this does not affect, much less eviscerate, the language
19 in the authorities cited above that Defendants would have the Court
20 ignore, holding that a court deciding a facial challenge can and should
21 consider evidence beyond the legislative history, including evidence
22 regarding the effect of the challenged statute.
23 43. As this case includes a facial challenge on substantive due process as
24 well as First Amendment grounds, the Court notes that although the
25 authorities discussed above dealt with evidence properly considered by
26 courts in resolving First Amendment facial challenges, their holdings
27 regarding the admissibility of broad categories of testimonial and
28
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1 documentary evidence are echoed in the authorities considering facial


2 challenges on due process grounds. See, e.g., Lawrence v. Texas,
3 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993); Tucson
4 Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los
5 Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see
6 generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009).
7 44. In Lawrence, petitioners pled nolo contendere to charges under a
8 Texas statute forbidding certain sexual acts between persons of the
9 same sex. They then raised a facial challenge to the statute's
10 constitutionality under the Due Process and Equal Protection clauses of
11 the Fourteenth Amendment. In reaching its decision that the Texas
12 statute indeed was unconstitutional, the Supreme Court's majority
13 reviewed at length the history of the common law prohibiting sodomy or
14 regulating homosexuality, the effect of the statute ("The stigma this
15 criminal statute imposes, moreover, is not trivial . . . . We are advised
16 that if Texas convicted an adult for private consensual homosexual
17 conduct under the statute here in question the convicted person would
18 come within the registration laws of at least four States were he or she
19 to be subject to their jurisdiction. . . ."), facts surrounding enactment of
20 the statute, and comparison with other laws. Lawrence, 539 U.S. at
21 567-79.
22 45. Accordingly, the Court's determination of Plaintiff's substantive due
23 process and First Amendment challenges to the Act refers to evidence
24 properly adduced by Log Cabin Republicans and admitted at trial. (As
25 noted above, apart from the Act itself and its legislative history,
26 Defendants admitted no evidence and produced no witnesses.)
27
28
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1 Plaintiff's Challenge under the Due Process Clause


2 46. Plaintiff claims the Don't Ask, Don't Tell Act violates its members'
3 substantive due process rights, identified in Lawrence as rights
4 associated with the "autonomy of self that includes freedom of thought,
5 belief, expression, and certain intimate conduct." Lawrence, 539 U.S.
6 at 562. (FAC ¶¶ 4, 38-43; Doc. No. 190 [Pl.'s Mem. Cont. Fact & Law]
7 at 32-33.)
8
9 The Standard of Review
10 47. As set out more fully in the July 6, 2010, Order, courts employ a
11 heightened standard of review when considering challenges to state
12 actions implicating fundamental rights. (July 6, 2010, Order at 6-9.)
13 48. After the United States Supreme Court's decision in Lawrence v. Texas,
14 recognizing the fundamental right to "an autonomy of self that includes
15 freedom of thought, belief, expression, and certain intimate conduct,"
16 539 U.S. at 562, the Ninth Circuit in Witt v. Department of Air Force,
17 527 F.3d 806 (9th Cir. 2008), held the Don't Ask, Don't Tell Act
18 constitutes an intrusion "upon the personal and private lives of
19 homosexuals, in a manner that implicates the rights identified in
20 Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819.
21 49. Thus, in order for the Don't Ask, Don't Tell Act to survive Plaintiff's
22 constitutional challenge, it must "[1] advance an important
23 governmental interest, [2] the intrusion must significantly further that
24 interest, and [3] the intrusion must be necessary to further that interest."
25 Id.
26 50. Noting the Act "concerns the management of the military, and judicial
27 deference to . . . congressional exercise of authority is at its apogee" in
28
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1 this context, Witt went on to decide the Act advances an "important


2 governmental interest." 527 F.3d at 821 (citations omitted).
3 Accordingly, the Court addresses the second and third prongs of the
4 Witt test.
5
6 The Act Does Not Significantly Further the Government's Interests in
7 Military Readiness or Unit Cohesion
8 51. Defendants relied solely on the legislative history of the Act and the Act
9 itself in support of their position that the Act passes constitutional
10 muster. (See Findings of Fact Nos. 127-34; Defs.' Mem. Cont. Fact &
11 Law at 9-10.) Careful review and consideration of the Act itself and its
12 legislative history reveals that this evidence fails to satisfy Defendants'
13 burden of proving that the Act, with its attendant infringements on the
14 fundamental rights of Plaintiff's members, significantly furthers the
15 Government's interest in military readiness or unit cohesion.
16 52. Plaintiff's evidence at trial demonstrated the Act does not significantly
17 advance the Government's interests in military readiness or unit
18 cohesion. The testimony of former servicemembers provides ample
19 evidence of the Act's adverse effect on the fundamental rights of
20 homosexual members of the United States military. Their testimony
21 also demonstrated that the Act has a deleterious effect on the
22 Government's interests in maintaining military readiness and unit
23 cohesion. In addition to the testimony from the lay witnesses, Plaintiff's
24 other evidence, including documentary evidence and testimony from
25 witnesses in such specialties as national security policy, military
26 sociology, military history, and social psychology, provided additional
27
28
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1 support for this conclusion that the Act harms, rather than furthers, the
2 Government's important interests.
3
4 The Act Is Not Necessary to Further the Government's Interests in
5 Military Readiness and Unit Cohesion
6 53. The Witt court held that to justify the infringement on the fundamental
7 rights identified in Lawrence, a defendant must satisfy both the
8 requirement that the Act "significantly furthers" the Government's
9 interests and the requirement that it is "necessary" to achieve them. To
10 the extent that Defendants have made a distinct argument here that the
11 Act is necessary to achieve the Government's significant interests, they
12 have not met their burden as to this prong of the Witt test, either.
13 54. In order to justify the encroachment on the fundamental rights
14 described above, Defendants faced the burden at trial of showing the
15 Don't Ask, Don't Tell Act was necessary to significantly further the
16 Government's important interests in military readiness and unit
17 cohesion. Defendants failed to meet that burden.
18 55. Thus, Plaintiff is entitled to judgment in its favor on the first claim in its
19 First Amended Complaint for violation of the substantive due process
20 rights guaranteed under the Fifth Amendment.
21
22 Plaintiff's First Amendment Challenge to the Act
23 56. "Congress shall make no law . . . abridging the freedom of speech, . . .
24 or the right of the people peaceably to assemble, and to petition the
25 Government for a redress of grievances." (U.S. Const. amend. I.)
26
27
28
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1 57. 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
3 Mem. Cont. Fact & Law at 32-33.)
4
5 The Standard of Review in First Amendment Challenges
6 58. 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.) Laws regulating speech based on its content
9 generally must withstand intense scrutiny when facing a First
10 Amendment challenge:
11 At the heart of the First Amendment lies the principle that
each person should decide for himself or herself the ideas and
12 beliefs deserving of expression, consideration, and
adherence. Our political system and cultural life rest upon this
13 ideal. Government action that stifles speech on account of its
message, or that requires the utterance of a particular
14 message favored by the Government, contravenes this
essential right. Laws of this sort pose the inherent risk that
15 the Government seeks not to advance a legitimate regulatory
goal, but to suppress unpopular ideas or information or
16 manipulate the public debate through coercion rather than
persuasion. These restrictions rais[e] the specter that the
17 Government may effectively drive certain ideas or viewpoints
from the marketplace. For these reasons, the First
18 Amendment, subject only to narrow and well-understood
exceptions, does not countenance governmental control over
19 the content of messages expressed by private individuals.
Our precedents thus apply the most exacting scrutiny to
20 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
22 added) (citations omitted).
23 59. In Simon & Schuster, Inc. v. Members of New York State Crime Victims
24 Board, 502 U.S. 105 (1991), the Supreme Court considered whether
25 New York's "Son of Sam" law purporting to strip authors of profits
26 gained from books or other publications depicting their own criminal
27 activities constituted content-based regulation. Holding the law was not
28
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1 content neutral, the Court ruled that "[i]n order to justify such differential
2 treatment, 'the State must show that its regulation is necessary to serve
3 a compelling state interest and is narrowly drawn to achieve that end.'"
4 Id. at 118 (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S.
5 221, 231 (1987)).
6 60. "Deciding whether a particular regulation is content-based or content-
7 neutral is not always a simple task. We have said that the principal
8 inquiry in determining content-neutrality . . . is whether the government
9 has adopted a regulation of speech because of [agreement or]
10 disagreement with the message it conveys." Turner, 512 U.S. at 642
11 (citations omitted).
12 61. The Supreme Court in Turner distilled the rule as follows: a law that by
13 its terms "distinguish[es] favored speech from disfavored speech on the
14 basis of the ideas or views expressed [is] content-based." Id. at 643
15 (citing Burson v. Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry,
16 485 U.S. 312, 318-19 (1988)).
17 62. Defendants did not address directly the question of content neutrality,
18 but relied instead on authorities that, for various reasons, fail to counter
19 the clear weight of the case law discussed above. Defendants
20 repeatedly cited the Ninth Circuit's decisions in Witt v. Department of
21 Air Force, 527 F.3d 806 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420
22 (9th Cir. 1997), and Holmes v. California National Guard, 124 F.3d
23 1126 (9th Cir. 1997), although the plaintiff in Witt brought no First
24 Amendment claim and the Court in Philips expressly declined to reach
25 the First Amendment issue, noting the district court also had stopped
26 short of resolving it.
27
28
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1 63. In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech
2 claims in summary manner, holding because the plaintiffs "were
3 discharged for their conduct and not for speech, the First Amendment is
4 not implicated." 124 F.3d at 1136 (citations omitted).
5 64. Holmes relied on the Fourth Circuit's decision in Thomasson v. Perry,
6 80 F.3d 915 (4th Cir. 1996), which rejected a First Amendment
7 challenge to the Don't Ask, Don't Tell Act on the basis that it
8 "permissibly uses the speech as evidence," and "[t]he use of speech as
9 evidence in this manner does not raise a constitutional issue – the First
10 Amendment does not prohibit the evidentiary use of speech to establish
11 the elements of a crime, or, as is the case here, to prove motive or
12 intent." Id. at 931 (citations omitted).
13 65. Holmes also relied on Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991),
14 although acknowledging that decision was based not on the Don't Ask,
15 Don't Tell Act but a superseded policy. See Holmes, 124 F.3d at 1136
16 (citing Pruitt, 963 F.2d at 1164). In other words, Holmes and the cases
17 from other circuits have found the Don't Ask, Don't Tell Act does not
18 raise a First Amendment issue to be analyzed under a content-neutral
19 versus content-based framework.
20 66. None of these authorities, however, considered whether there might be
21 any speech, other than admissions of homosexuality subject to being
22 used as evidence in discharge proceedings, affected by the Act.
23 Furthermore, Holmes was decided before Lawrence and was
24 "necessarily rooted" in Bowers v. Hardwick, 478 U.S. 186 (1986), which
25 Lawrence overruled. See Holmes, 124 F.3d at 1137 (Reinhardt, J.,
26 dissenting).
27
28
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1 67. Lawrence struck down a Texas statute making felonious certain sexual
2 acts between two persons of the same sex; the Supreme Court held in
3 part that the Constitution recognized certain substantive due process
4 rights, associated with the "autonomy of self that includes freedom of
5 thought, belief, expression, and certain intimate conduct." Lawrence,
6 539 U.S. at 562 (emphasis added).
7 68. The Holmes decision, finding the Act did not implicate the First
8 Amendment, and the Act's provisions, appear at odds with the Supreme
9 Court's decision in Lawrence. As Holmes explains:
10 "Homosexual conduct is grounds for separation from the Military
11 Services under the terms set forth [in the DOD Directives.]
12 Homosexual conduct includes homosexual acts, a statement by a
13 member that demonstrates a propensity or intent to engage in
14 homosexual acts, or a homosexual marriage or attempted marriage. A
15 statement by a member that demonstrates a propensity or intent to
16 engage in homosexual acts is grounds for separation not because it
17 reflects the member's sexual orientation, but because the statement
18 indicates a likelihood that the member engages in or will engage in
19 homosexual acts." 124 F.3d at 1129 (quoting DOD Directive 1332.30
20 at 2-1(c) (emphasis added)).
21 69. The Holmes court found the Act does not punish status, despite the
22 presumption embodied within it that declared homosexual
23 servicemembers will engage in proscribed homosexual conduct, finding
24 the assumption was "imperfect" but "sufficiently rational to survive
25 scrutiny . . . ." 124 F.3d at 1135.
26
27
28
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1 70. Thus, Holmes's foundations – rational basis scrutiny, acceptance of an


2 assumption of sexual misconduct based on admitted homosexual
3 orientation, and the Bowers decision – all have been undermined by
4 Lawrence, particularly in light of its explicit protection of "expression."
5 See Lawrence, 539 U.S. at 562.
6 71. Furthermore, if the proscription in subsection (b)(1) of the Act violates
7 substantive due process as set forth above, then the limitation on
8 speech in subsection (b)(2) necessarily fails as well. "Plainly, a
9 limitation on speech in support of an unconstitutional objective cannot
10 be sustained." Able v. United States, 88 F.3d 1280, 1300 (2d Cir.
11 1996). Holmes, decided before Lawrence, therefore does not shield
12 Defendants from Plaintiff's First Amendment claim.
13 72. The Act in subsection (b)(2) requires a servicemember's discharge if he
14 or she "has stated that he or she is a homosexual or bisexual, or words
15 to that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act
16 does not prohibit servicemembers from discussing their sexuality in
17 general, nor does it prohibit all servicemembers from disclosing their
18 sexual orientation. Heterosexual members are free to state their sexual
19 orientation, "or words to that effect," while gay and lesbian members of
20 the military are not.
21 73. Thus, on its face, the Act discriminates based on the content of the
22 speech being regulated. It distinguishes between speech regarding
23 sexual orientation, and inevitably, family relationships and daily
24 activities, by and about gay and lesbian servicemembers, which is
25 banned, and speech on those subjects by and about heterosexual
26 servicemembers, which is permitted.
27
28
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1 74. 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
5 expression because of its message, its ideas, its subject matter, or its
6 content.'" Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y.,
7 447 U.S. 530, 537 (1980) (quoting Police Dep't of Chicago v. Mosley,
8 408 U.S. 92, 95 (1972)).
9 75. In evaluating the constitutionality of such regulations in a military
10 context, however, courts traditionally do not apply the strict scrutiny
11 described above. Rather, courts apply a more deferential level of
12 review of military restrictions on speech. "Our review of military
13 regulations challenged on First Amendment grounds is far more
14 deferential than constitutional review of similar laws or regulations
15 designed for civilian society. The military need not encourage debate
16 or tolerate protest to the extent that such tolerance is required of the
17 civilian state by the First Amendment; to accomplish its mission the
18 military must foster instinctive obedience, unity, commitment, and esprit
19 de corps." Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations
20 omitted).
21 76. Although careful to point out that the "subordination of the desires and
22 interests of the individual to the needs of the service," which is "the
23 essence of military life," does not entirely abrogate the guarantees of
24 the First Amendment, the Supreme Court emphasized the "great
25 deference [courts must afford] to the professional judgment of military
26 authorities concerning the relative importance of a particular military
27 interest." Id. (citations omitted).
28
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1 77. The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S.
2 57 (1981), oft-cited for the principle that "judicial deference . . . is at its
3 apogee when legislative action under the congressional authority to
4 raise and support armies and make rules and regulations for their
5 governance is challenged." Id. at 70.
6 78. In keeping with this well-established rule of deference, regulations of
7 speech in a military context will survive Constitutional scrutiny if they
8 "restrict speech no more than is reasonably necessary to protect the
9 substantial government interest." Brown v. Glines, 444 U.S. 348, 348,
10 355 (1980) (citing Greer v. Spock, 424 U.S. 828 (1976); Procunier v.
11 Martinez, 416 U.S. 396 (1974)).
12 79. The Don't Ask, Don't Tell Act fails this test of constitutional validity.
13 Unlike the regulations on speech upheld in Brown and Spock, for
14 example, the sweeping reach of the restrictions on speech in the Don't
15 Ask, Don't Tell Act is far broader than is reasonably necessary to
16 protect the substantial government interest at stake here.
17 80. In Brown, the Supreme Court upheld an Air Force regulation that
18 required Air Force personnel first to obtain permission from the base
19 commander before distributing or posting petitions on Air Force bases,
20 444 U.S. at 348; in Greer, the Court upheld a similar regulation on Army
21 bases, banning speeches, demonstrations, and distribution of literature,
22 without prior approval from post headquarters. 424 U.S. at 828.
23 81. In both cases, the Court rejected facial challenges to the regulations,
24 holding they protected substantial Governmental interests unrelated to
25 the suppression of free expression, i.e., maintaining the respect for duty
26 and discipline, and restricted speech no more than was reasonably
27 necessary to protect that interest.
28
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1 82. 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
3 range of speech, far greater than necessary to protect the
4 Government's substantial interests. See supra Findings of Fact Nos.
5 27, 28, 53, 75, 76, 92, 93, 96-99, 112,113.)
6 83. For these reasons, Plaintiff is also entitled to judgment on its claim for
7 violation of the First Amendment's guarantees of freedom of speech
8 and petition.
9
10
11
12 Dated: October 12, 2010
VIRGINIA A. PHILLIPS
13 United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
84

App. 181a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 1 of 15 Page ID #:7602

PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 04-08425-VAP (Ex) Date: October 12, 2010

Title: LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and


ROBERT M. GATES, SECRETARY OF DEFENSE
===============================================================
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: ORDER GRANTING PERMANENT INJUNCTION (IN


CHAMBERS)

On September 9, 2010, the Court issued its Memorandum Opinion ruling in


favor of Plaintiff Log Cabin Republicans ("Plaintiff" or "Log Cabin") on the first and
second claims in its First Amended Complaint, holding the "Don't Ask, Don't Tell"
Act, 10 U.S.C. § 654, violates the First and Fifth Amendments to the United States
Constitution. The Court directed Plaintiff to submit a proposed judgment with
preliminary injunction, and set a deadline for Defendants to submit any objections to
the same. (Mem. Op. at 85.)

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App. 182a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 2 of 15 Page ID #:7603

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

Accordingly, Plaintiff timely submitted its "Request for Judgment and


Permanent Injunction" ("Request for Permanent Injunction" or the "Request") on
September 16, 2010. On September 23, 2010, Defendants United States of
America and Robert M. Gates, Secretary of Defense (collectively, "Defendants"),
filed "Objections to Request for Judgment and Permanent Injunction" ("Objections"
or "Defs.' Objections"). Plaintiff filed a response to the Objections ("Response") on
September 24, 2010, and an Amended Proposed form of Judgment and Permanent
Injunction ("Amended Request" or "Amd. Req.") on October 7, 2010. Having
considered the evidence presented during trial and the papers the parties submitted
in support of and in opposition to the Request for Permanent Injunction, the Court
GRANTS Plaintiff's Request in part, for the reasons set forth below.

I. BACKGROUND AND PROCEDURAL HISTORY


The parties tried the case to the Court from July 13 through 16 and July 20
through 23, 2010. The Court issued a Memorandum Opinion on September 9, 2010,
finding the Don't Ask, Don't Tell Act ("Don't Ask, Don't Tell," the "Act," or "DADT")
unconstitutional on its face under the First and Fifth Amendments to the United
States Constitution. The Court concluded, "Plaintiff is entitled to the relief sought in
its First Amended Complaint: a judicial declaration to that effect and a permanent
injunction barring further enforcement of the Act." (Mem. Op. at 1.)

After Plaintiff filed the Request for Permanent Injunction (Doc No. 233),
Defendants filed the following objections to Plaintiff's Request: (1) Plaintiff's
proposed injunction is overbroad because it (a) should be limited to Plaintiff and its
members, (b) "would foreclose the United States from litigating the constitutionality of
DADT in other courts," (c) "improperly seeks to prevent the government from making
the showing permitted by the Ninth Circuit in Witt,"1 and (d) "impermissibly seeks to
effectively negate Courts of Appeals' rulings upholding DADT"; (2) Plaintiff's
proposed injunction "seeks to extend beyond enjoining DADT"; (3) "no injunction

1
Witt v. Dep't of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (holding the Don't
Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified in Lawrence," and is
subject to heightened scrutiny.).

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App. 183a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 3 of 15 Page ID #:7604

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

should be entered or made effective until the Government has had an opportunity to
consider the terms of any injunction and move for a stay"; and (4) "Log Cabin is not
entitled to EAJA [Equal Access to Justice Act] Fees." (Doc. No. 235 (Defs.'
Objections) at i.) Plaintiff filed its Response on September 24, 2010 (Doc. No. 236)
and an Amended Request on September 28, 2010 (Doc. No. 238). On September
29, 2010, Defendants filed a "Supplement to Objections." (Doc. No. 239.)

II. ANALYSIS
A. Plaintiff Is Entitled to a Permanent Injunction
"The requirements for the issuance of a permanent injunction are 'the likelihood
of substantial and immediate irreparable injury and the inadequacy of remedies at
law.'" American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066-67
(9th Cir. 1995) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir. 1985),
modified, 796 F.2d 309 (9th Cir. 1986)).

Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures
servicemembers by infringing their fundamental rights and violating (a) the
substantive due process rights guaranteed under the Fifth Amendment to the United
States Constitution, and (b) the rights to freedom of speech and to petition the
Government for redress of grievances guaranteed by the First Amendment to the
United States Constitution. (See Mem. Op. at 12-13, 74, 83, 85; see American-Arab
Anti-Discrimination Comm., 70 F.3d at 1071 (holding that violations of procedural
due process and First Amendment rights constitute irreparable harm).) Furthermore,
there is no adequate remedy at law to prevent the continued violation of
servicemembers' rights or to compensate them for violation of their rights. See
American-Arab Anti-Discrimination Comm., 70 F.3d at 1071 (holding there is no
adequate remedy at law for "denial of legalization based on a constitutional
violation").

Defendants do not contend Plaintiff has not satisfied these requirements for
issuance of a permanent injunction. In fact, Defendants do not address the
requirements in their Objections.

Thus, Plaintiff is entitled to a permanent injunction barring enforcement of the

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App. 184a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 4 of 15 Page ID #:7605

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

Don't Ask, Don't Tell Act.

B. Defendants' Objections to Plaintiff's Proposed Injunction


1. Defendants' Objections to the Breadth of the Injunction
a. The Proposed Injunction Does Not Bind Non-Parties
Defendants first argue that the Court cannot enjoin the United States military
from enforcing the Act because such an injunction would be overbroad. (Defs.'
Objections at 3.) Defendants contend the injunction should be limited to Plaintiff and
its members because Plaintiff "has only ever purported to assert the rights of its own
members. . . . Therefore, [P]laintiff should not be allowed to assert the rights of third
parties for the first time through a proposed judgment." (Id.) According to
Defendants, the proposed injunction would "extend injunctive relief to nonparties."
(Id. at 4.)

This argument attempts to transform Plaintiff's challenge into an as-applied


attack on the Act, which squarely contradicts Defendants' position throughout this
litigation. (See, e.g., Doc. No. 186 (Defs.' Mem. of Cont. Fact & Law) at 1 ("no trial is
necessary or appropriate on plaintiff's facial challenge.") (emphasis added), 5
("Burden of Proof Regarding Facial Due Process Claim . . . . a 'facial challenge to a
legislative Act is . . . the most difficult challenge to mount successfully. . . .'")
(emphasis added), 7 ("Burden of Proof Regarding Facial First Amendment Claim . . .
. plaintiff has steadfastly maintained throughout this litigation that it brings facial
constitutional claims, including a facial First Amendment claim.") (emphasis added);
Doc No. 188 (Defs.' Proposed Findings of Fact & Conclusions of Law) at 6 ("Because
resolution of LCR's facial substantive due process claim is a pure question of law . . .
.") (emphasis added).)

As Plaintiff correctly points out, it challenged the Act on its face, not as applied
to it or its members. (Resp. at 4-5.) Therefore, its entitlement to relief is not
constrained as Defendants suggest, and the Court is not limited to granting a remedy
that would affect only Plaintiff and its members. The Court found the Act
unconstitutional on its face; accordingly, the resulting remedy should be as broad as
necessary to achieve the relief Plaintiff sought. Furthermore, Plaintiff's proposed
injunction does not bind nonparties as Defendants suggest; instead, it binds the
actual, named Defendants in this action -- the United States of America and Robert

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App. 185a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 5 of 15 Page ID #:7606

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

M. Gates, in his official capacity as Secretary of the Department of Defense -- both of


whom fully participated in and litigated this lawsuit.

The remedy Plaintiff sought and obtained here was invalidation of the Don't
Ask, Don't Tell Act. The nature of the remedy stems from the nature of the challenge
-- here, a facial challenge. As set forth below, courts may invalidate a statute in its
entirety pursuant to a facial challenge, though partial invalidation is preferred where
possible.

In Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), the Ninth Circuit held a
district court did not abuse its discretion in ordering what was, in effect, nationwide
relief. There, plaintiff migrant workers sought a declaratory judgment that the
Migrant and Seasonal Agricultural Workers Protection Act applied to forestry workers
and an injunction requiring the Secretary of Labor to enforce the Act in the industry.
In analyzing the appropriate scope of the injunction, the Bresgal court noted, "The
Supreme Court has held that a federal agency is not necessarily entitled to confine
any ruling of a court of appeals to its immediate jurisdiction." Id. at 1170 (discussing
Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which held there are no legal limits
on the geographical scope of a class action brought in federal district court). "Thus
there is no bar against class-wide, and nationwide relief in federal district or circuit
court when it is appropriate." Bresgal, 843 F.2d at 1170 (citations omitted).

Defendants' argument that nationwide relief is available only in class actions


fails. There are numerous instances where district courts have granted nationwide
relief in non-class actions. See, e.g., Earth Island Inst. v. Pengilly, 376 F. Supp. 2d
994 (E.D. Cal. 2005) (invalidating five Forest Service regulations and issuing a
nationwide injunction against their application), aff'd, 490 F.3d 687 (9th Cir. 2007),
rev'd on other grounds, Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009);
Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374, 1400-01 (M.D.N.C. 1997) (issuing
injunction preventing the FDA from enforcing regulations on tobacco products), rev'd
on other grounds, Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir.
1998), aff'd, 529 U.S. 120 (2000); Finley v. Nat'l Endowment for the Arts, 795 F.
Supp. 1457, 1476 (C.D. Cal. 1992) (granting summary judgment on plaintiff's facial
challenge to the National Foundation on the Arts and the Humanities Act of 1965 and
enjoining its enforcement), aff'd, 100 F.3d 671 (9th Cir. 1996), rev'd on other

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App. 186a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 6 of 15 Page ID #:7607

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

grounds, 524 U.S. 569 (1998); Hodel v. Va. Surface Min. & Reclamation Ass'n, Inc.,
483 F. Supp. 425 (D.C. Va. 1980) (finding Surface Mining Control and Reclamation
Act unconstitutional and permanently enjoining the Secretary from enforcing various
provisions of the Act), rev'd on other grounds, 452 U.S. 264 (1981); see also
Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349 (Fed. Cir. 2002)
(noting that where a party challenges a regulation's facial validity, total invalidation is
an appropriate remedy).

b. Severability
Generally, however, an injunction "should be no more burdensome to the
defendant than necessary to provide complete relief to the plaintiff." (Defs.'
Objections at 3-4 (citing Califano, 442 U.S. at 702).) Accordingly, partial, rather than
total, invalidation is "the normal rule," and invalid provisions should be severed from
valid provisions whenever possible. Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 329, 331 (2006) (holding, in response to a facial challenge to
a statute's constitutionality, courts should issue a narrower remedy whenever
possible); United States v. AMC Entm't, Inc., 549 F.3d 760, 774-75 (9th Cir. 2008)
(Wardlaw, J., concurring in part and dissenting in part) (hereinafter "AMC Entm't (9th
Cir.)") ("district courts within our circuit commonly issue nationwide injunctions where
the 'injunction . . . is tailored to the violation of law that the Court already found -- an
injunction that is no broader but also no narrower than necessary to remedy the
violations." (citing California ex rel. Lockyer v. USDA, 468 F. Supp. 2d 1140, 1144
(N.D. Cal. 2006))); Golden Door, Inc. v. Odisho, 437 F. Supp. 956, 968 (N.D. Cal.
1977), aff'd, 646 F.2d 347 (9th Cir. 1980), abrogated on other grounds by Japan
Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866 (9th Cir. 2002) ("Plaintiff's
market area, and hence the sphere of its reputation, are nationwide. Accordingly, it
is entitled to nationwide protection against confusion and dilution. The scope of the
injunction must therefore be nationwide."); see Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684-86 (1987) (setting out rules governing severability of federal statutes);
Sabri v. United States, 541 U.S. 600, 608-09 (2004); Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 501-03 (1985); Regan v. Time, Inc., 468 U.S. 641, 653 (1984)
(plurality opinion) (adopting presumption of severability); United States v. Raines,
362 U.S. 17, 21 (1960); Champlin Refining Co. v. Corp. Comm'n, 286 U.S. 210, 234
(1932); Richard H. Fallon et al., Hart and Wechsler's The Federal Courts and the

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App. 187a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 7 of 15 Page ID #:7608

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

Federal System 162-65 (6th ed. 2009) (describing severability doctrine as applied to
federal statutes).

In accordance with these principles, the Court considers whether the Act
contains constitutional provisions that are "separable" or "severable" from the
unconstitutional portions. Though the Government objected to the breadth of
Plaintiff's proposed injunction, it never addressed the possibility of severance.
Nevertheless, the Court has considered severability sua sponte and finds it
impossible to sever the unconstitutional provisions of the Act for the reasons
discussed below.

"The standard for determining the severability of an unconstitutional provision


is well established: Unless it is evident that the Legislature would not have enacted
those provisions which are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative as a law." Alaska Airlines,
480 U.S. at 684 (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam));
accord Time, 468 U.S. at 653; INS v. Chadha, 462 U.S. 919, 931-32 (1983); United
States v. Jackson, 390 U.S. 570, 585 (1968). "Congress could not have intended a
constitutionally flawed provision to be severed from the remainder of the statute if the
balance of the legislation is incapable of functioning independently." Alaska Airlines,
480 U.S. at 684 (citing Hill v. Wallace, 259 U.S. 44, 70-72 (1922) (holding the Future
Trading Act nonseverable because valid and invalid provisions were so intertwined
that the court would have to rewrite the law to allow it to stand)). Thus, the
severability doctrine depends upon whether the court can formulate a satisfying
limiting principle to constrain the statute. See Ayotte, 546 U.S. at 331. If not,
severing unconstitutional applications is not an option and the court must resort to
full invalidation. See id.

Here, severing the unconstitutional provisions of the Act would not leave a fully
operative law because the invalid provisions are so intertwined with any valid
provisions that a limiting construction is not feasible. The Act provides that any
member of the United States military who engages in "homosexual conduct" is
subject to discharge unless the servicemember is able to demonstrate that he or she
does not have a propensity to engage in "homosexual conduct." See 10 U.S.C. §

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App. 188a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 8 of 15 Page ID #:7609

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

654; see Department of Defense Directives 1332.14 (1993), 1332.30 (1997),


1304.26 (1993); Department of Defense Instruction 1332.14 (2008) (incorporating
March 29, 2010, changes), 1332.30 (2008) (incorporating March 29, 2010, changes).
The Act defines "homosexual conduct" as sexual acts with persons of the same sex,
admissions that one is homosexual or bisexual, and attempts to marry a person of
the same sex. 10 U.S.C. § 654. In its Memorandum Opinion, the Court found it
unconstitutional to discharge servicemembers on the basis of their homosexuality.
As the Act entirely pertains to the discharge of servicemembers on the basis of
homosexual conduct, it is unconstitutional in its totality. Formulating a constitutional
statute would require the Court to rewrite the Act.

The Supreme Court has cautioned courts against rewriting a statute in an


attempt to salvage it. Ayotte, 546 U.S. at 329-30. Instead, courts should "impose a
limiting construction on a statute only if it is 'readily susceptible' to such a
construction." Reno v. ACLU, 521 U.S. 844, 884-85 (1997) (citation omitted). Such
susceptibility may turn on the availability of a "clear line" supported by statutory text
or legislative intent that the Court could use to trim a statute to constitutional
confines. Id.; see also City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality
opinion) (finding severability impossible where "vagueness permeates the text of [a
criminal] law"). Here, there is no saving provision in the language of the Act itself nor
any evidence of legislative intent that would allow the Court to narrow the statute to
constitutional confines. Further, the unconstitutional nature of the Act permeates the
text of the statute. Thus, total invalidation is the narrowest remedy available for the
relief sought here.

c. Effect of Injunction on Defendants' Ability to Defend the Act in


Other Courts
Next, Defendants argue that the proposed injunction is improper because it (1)
prevents Defendants from defending the constitutionality of the Don't Ask, Don't Tell
Act in other courts, and (2) prevents "the government from making the showing
permitted by the Ninth Circuit in Witt." (Defs.' Objections at 8.) These contentions
either ignore the nature of Plaintiff's challenge or misstate the consequences of this
injunction.

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App. 189a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 9 of 15 Page ID #:7610

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

To the extent that Defendants' reference to "other courts" is intended to refer to


other district courts, Defendants are correct that this injunction will prevent them from
defending the constitutionality of the Don't Ask, Don't Tell Act. As discussed above,
the proper remedy for the relief sought here is complete invalidation of the Don't Ask,
Don't Tell Act. As such, Defendants are bound by this Court's ruling. Further, if
Defendants' objection is that they will be unable to defend current or future as-
applied challenges, Defendants once again fail to recognize the nature of Plaintiff's
challenge. Plaintiff did not prevail on an as-applied challenge, which would have
rendered the Act unconstitutional as applied to it but not affected the constitutionality
of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its
face and requested an order permanently enjoining the Act's enforcement. As the
Court deems this remedy proper, Defendants are unable to defend the Act in as-
applied challenges. Likewise, if Defendants' objection is that they will be unable to
defend current or future facial challenges to the Act, the same reasoning applies. To
the extent that Defendants' reference to "other courts" indicates higher courts,
Defendants' recourse, if they wish to defend the Act further, is to appeal this Court's
ruling.

Defendants next argue that the Court should not issue a nationwide injunction
because other circuit courts have found the Act constitutional. Defendants cite no
case in which a court finding a federal statute unconstitutional on its face has limited
its ruling to a particular judicial district. Defendants instead cite four circuit cases
holding the Don't Ask, Don't Tell Act constitutional: Cook v. Gates, 528 F.3d 42 (1st
Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)
(en banc). The fact that courts in other circuits have not invalidated the Don't Ask,
Don't Tell Act does not prevent this Court from doing so. Able, Richenberg, and
Thomasson all predate the Supreme Court's decision in Lawrence v. Texas, 539
U.S. 558 (2003), which recognized a fundamental right to "an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate conduct." 539
U.S. at 562. Cases that predate Lawrence are not relevant to this inquiry because
the Court's decision here relied upon the Ninth Circuit's holding in Witt, which
adopted the heightened level of scrutiny announced in Lawrence. See Witt, 527
F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the

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App. 190a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 10 of 15 Page ID #:7611

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

personal and private lives of homosexuals, in a manner that implicates the rights
identified in Lawrence," and is subject to heightened scrutiny). Defendants chose not
to appeal Witt and accordingly are bound by it.

As for Cook, its disposition is distinguishable from this case because Cook
arose after the district court granted a motion to dismiss, not on the merits after a
trial, as here. Furthermore, as discussed more fully in its Memorandum Opinion, the
Court finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a
facial due process challenge to the Don't Ask, Don't Tell Act, the Cook court
presented two "circumstances under which the Act would be valid." See Cook, 528
F.3d at 56 (holding the Act is constitutional on its face because it provides for
separation of a servicemember "who engages in a public homosexual act or who
coerces another person to engage in a homosexual act." (citing United States v.
Salerno, 481 U.S. 739, 745 (1987))). Those examples are bases for discharge of
any servicemember, whether the conduct in question is homosexual or heterosexual.
(See Mem. Op. at 15-16 (noting that "the Cook decision provide[d] no citation to any
provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as
grounds for discharge under that legislation.").)

d. Comity
The Court next turns to Defendants' argument that comity prevents the Court
from issuing a nationwide injunction. As noted above, of the four circuit cases
holding the Don't Ask, Don't Tell Act constitutional, Cook is the only case decided
after Lawrence and accordingly the only one relevant here. The doctrine of comity is
a "prudential consideration" that arises when there is a tension between courts
having concurrent jurisdiction over the same matter. See Pennsylvania v. Union Gas
Co., 491 U.S. 1, 23-29 (1989) (Stevens, J., concurring), rev'd on other grounds,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Erwin Chemerinsky, Federal
Jurisdiction 39-40, n.28 (5th Ed. 2007) (citing Paul Finkelman, An Imperfect Union:
Slavery, Federalism and Comity 4 (1981) (defining comity as "the courtesy or
consideration that one jurisdiction gives by enforcing the laws of another, granted out
of respect and deference rather than obligation.")). The doctrine of comity is not a
rule of law, but rather is grounded in equitable considerations of respect, goodwill,
cooperation, and harmony among courts. See Danforth v. Minnesota, 552 U.S. 264,

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App. 191a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 11 of 15 Page ID #:7612

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

278-280, n.15 (2008) (discussing comity in the context of habeas corpus); Younger
v. Harris, 401 U.S. 37 (1971) (holding that comity prevents federal courts from
enjoining pending state court proceedings); Cornfeld v. Investors Overseas Servs.,
Ltd., 471 F. Supp. 1255, 1258-62 (D.C.N.Y. 1979) (international comity);
Chemerinsky, Federal Jurisdiction, supra, at 39-40, n.28. Though comity often
arises in the context of federalism and the attendant deference federal courts owe
state courts, the Ninth Circuit also has invoked the doctrine to encourage deference
among federal courts. See generally AMC Entm't (9th Cir.), 549 F.3d at 760.

In AMC Entertainment, the United States brought suit against a national movie
theater owner alleging that some of its theaters violated Americans with Disabilities
Act ("ADA") regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter "AMC
Entm't (C.D. Cal.)"). The district court granted the government's motion for summary
judgment and issued a nationwide injunction requiring the defendants to comply with
the ADA regulations, and the defendants appealed. Id.

The Ninth Circuit began its analysis by recognizing that district courts have the
power to issue nationwide injunctions. AMC Entm't (9th Cir.), 549 F.3d at 770-71
("Once a court has obtained personal jurisdiction over a defendant, the court has the
power to enforce the terms of the injunction outside the territorial jurisdiction of the
court, including issuing a nationwide injunction." (citing Steele v. Bulova Watch Co.,
344 U.S. 280, 289 (1952) ("the District Court in exercising its equity powers may
command persons properly before it to cease or perform acts outside its territorial
jurisdiction"); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981)
("When a district court has jurisdiction over all parties involved, it may enjoin the
commission of acts outside of its district."))).

Nevertheless, the divided Ninth Circuit panel went on to hold that the district
court abused its discretion by issuing a nationwide injunction because "the principles
of comity" should have constrained the court from enjoining defendants' theaters in
the Fifth Circuit, which previously had held defendants' theaters did not violate the
ADA. AMC Entm't (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit
"judicially repudiated" the reasoning adopted by the district court "when considering
the same arguments" enforced in the district court's injunction). The panel held:

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App. 192a
Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 12 of 15 Page ID #:7613

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

Principles of comity require that, once a sister circuit has spoken to an issue,
that pronouncement is the law of that geographical area. Courts in the Ninth
Circuit should not grant relief that would cause substantial interference with
the established judicial pronouncements of such sister circuits. To hold
otherwise would create tension between circuits and would encourage forum
shopping.
Id. at 773.

AMC Entertainment is distinguishable from the present case because the


former turns on statutory construction, not on fundamental constitutional rights. As
Plaintiff argues, "Whatever may be the merits [of comity] in the context of statutory
construction -- where, for example, our legal system tolerates differing rules in
different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the
like -- it can hold no sway on issues of constitutional rights." (Resp. at 7.) The Court
agrees that the fundamental constitutional rights at issue here must trump
considerations of comity. To hold otherwise would create an untenable result in
which Defendants could, pursuant to the Act, discharge servicemembers in Maine,
Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is
rooted in equity; here, the balance of equities decisively tips in favor of upholding the
fundamental constitutional rights protected by the First and Fifth Amendments to the
United States Constitution.

2. Defendants' Objection to Specific Language in the Injunction


Defendants object that certain language in Plaintiff's proposed injunction would
enjoin conduct that is extraneous to the Don't Ask, Don't Tell Act. The specific
language to which Defendants object enjoins Defendants and their agents "from
taking any actions whatsoever, or permitting any person or entity to take any action
whatsoever, against gay or lesbian servicemembers, or prospective
servicemembers, that in any way affects, impedes, interferes with, or influences their
military status, advancement, evaluation, duty assignment, duty location, promotion,
enlistment or reenlistment based upon their sexual orientation." (Amd. Req. at 2.)
Defendants argue this language "appears to subject all employees of the United
States government to contempt and enforcement in this Court based on claims
relating to any actions 'based upon' a servicemember's (or a 'prospective

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Case 2:04-cv-08425-VAP-E Document 249 Filed 10/12/10 Page 13 of 15 Page ID #:7614

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

servicemember's') sexual orientation." (Defs.' Objections at 9 (emphasis in original).)

In its Response and Amended Request for Injunction, Plaintiff clarifies that its
injunction was not intended to extend beyond the Don't Ask, Don't Tell Act to enjoin
extraneous conduct such as sexual harassment or sexual misconduct that are
already covered under other provisions of military law and regulations. (Resp. at 9.)
To address Defendants' concern, Plaintiff suggests adding the phrase "under the
color of law or military regulation." (Id.)

The Court finds this modification does not sufficiently constrain the language of
the injunction to the confines of the Act and accordingly sustains Defendants'
objection.

3. Defendants' Objection That No Injunction Should Be Entered or


Made Effective Until the Government Has Had an Opportunity to
Consider the Terms of Any Injunction and Move for a Stay
Defendants next object that "no injunction should be entered or made effective
until the Government has had an opportunity to consider the terms of any injunction
and move for a stay." (Defs.' Objections at 10-12.) Defendants have requested a
stay in this action on three previous occasions. The Court has rejected each
request. Defendants do not raise new arguments here, instead arguing "the political
branches are thoroughly engaged in considering the repeal of the DADT statute" and
reiterating the political nature of this issue and the challenges the military will face in
complying with the invalidation of DADT. (Id. at 11.)

Furthermore, Defendants have not requested a stay pending appeal nor do


they provide an estimate of how much time they need to consider the terms of the
injunction and move for a stay. Instead, Defendants merely request the Court
indefinitely defer entry of the injunction. (See id. at 10-12) As the Court previously
noted, "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." (Doc. No. 100 (November
24, 2009, Minute Order Denying Motion to Certify Order for Interlocutory Appeal and

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

for Stay) at 5.) The Court has provided Defendants sufficient opportunity to consider
the terms of Plaintiff's proposed injunction and request a stay. They have failed to do
so. For these reasons and those set forth in the Court's previous rulings on the
issuance of a stay, the Court declines to delay entry of the injunction.

4. Defendants' Objection to Log Cabin's Request to Apply for Equal


Access to Just Act ("EAJA") Fees
The Court disregards Defendants' objection that Plaintiff is not entitled to EAJA
fees because Plaintiff has not yet moved for fees but instead has only requested
permission to apply for such fees. Defendants' arguments regarding whether or not
Plaintiff is entitled to fees are more properly directed towards such an application, if
one is filed. Thus, the Court grants Plaintiff's request to file an application for EAJA
fees.

III. CONCLUSION
For the forgoing reasons, the Court:

(1) DECLARES that the act known as "Don't Ask, Don't Tell"2 infringes the
fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights guaranteed
under the Fifth Amendment to the United States Constitution, and (b) the rights to
freedom of speech and to petition the Government for redress of grievances
guaranteed by the First Amendment to the United States Constitution;

(2) PERMANENTLY ENJOINS Defendants United States of America and the


Secretary of Defense, their agents, servants, officers, employees, and attorneys, and
all persons acting in participation or concert with them or under their direction or

2
Codified in statute at 10 U.S.C. § 654 and implemented by regulations
comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and
1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008)
(incorporating March 29, 2010, changes) and 1332.30 (2008) (incorporating March
29, 2010, changes).

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

command, from enforcing or applying the "Don't Ask, Don't Tell" Act and
implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of


Defense immediately to suspend and discontinue any investigation, or discharge,
separation, or other proceeding, that may have been commenced under the "Don't
Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations,
on or prior to the date of this Order;

(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for attorneys'
fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion for costs
of suit, to the extent allowed by law.

IT IS SO ORDERED.

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Case 2:04-cv-08425-VAP-E Document 261 Filed 10/20/10 Page 1 of 6 Page ID #:7899

PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES -- GENERAL

Case No. CV 04-08425-VAP (Ex) Date: October 20, 2010

Title: LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and


ROBERT M. GATES, SECRETARY OF DEFENSE
===============================================================
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: AMENDED ORDER DENYING DEFENDANTS' EX PARTE


APPLICATION FOR ENTRY OF AN EMERGENCY STAY (IN
CHAMBERS)

Defendants' Ex Parte Application for the Entry of an Emergency Stay


("Application") (Doc. No. 253), filed October 14, 2010, came before the Court for
hearing on October 18, 2010. Plaintiff filed its opposition ("Opposition") on October
15, 2010. Having considered the papers filed in support of, and in opposition to, the
Application, as well as the arguments advanced by counsel at the hearing, the Court
DENIES the Application for the following reasons as well as those set forth on the
record at the hearing.

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Case 2:04-cv-08425-VAP-E Document 261 Filed 10/20/10 Page 2 of 6 Page ID #:7900

CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 20, 2010

I. ANALYSIS
The suspension of equitable or injunctive relief ordered by a district court
during the pendency of an appeal is authorized by Federal Rule of Civil Procedure
62(c). In determining whether to grant a stay, the court considers the same four
factors for granting a preliminary injunction: (1) the proponent's likelihood of success
on the merits; (2) the likelihood the proponent will suffer irreparable harm absent a
stay; (3) whether issuance of a stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies. See Nken v.
Holder, 556 U.S. ___, ___, 129 S. Ct. 1749, 1760-61 (2009) (citing Winter v. Natural
Res. Def. Council, 555 U.S. ___, ___, 129 S. Ct. 365 (2008) (establishing standard
for preliminary injunction and holding a moving party must show the existence of all
four factors)); Golden Gate Rest. Ass'n v. City & County of San Francisco, 512 F.3d
1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
The first two factors "are the most critical." Nken, 129 S. Ct. at 1757.

"A stay is not a matter of right, even if irreparable injury might otherwise result,"
and the propriety of issuing a stay depends on the circumstances of the particular
case. Nken, 129 S. Ct. at 1760-61. The decision to grant or deny a stay is
committed to the trial court's sound discretion. Id. at 1761. The party requesting a
stay bears the burden of demonstrating that the circumstances justify an exercise of
that discretion. Id. at 1761 (citing Clinton v. Jones, 520 U.S. 681, 708 (1997); Landis
v. N. Am. Co., 299 U.S. 248, 255 (1936)).

Turning to the circumstances present here, the Court first notes Defendants
had an opportunity to, but did not, present any of the evidence or arguments now
advanced before the injunction issued. When the Court issued its Memorandum
Opinion on September 9, 2010, it set out a briefing schedule regarding the form of
the injunction. Although Defendants objected to the issuance of the injunction and its
scope, they provided no evidence regarding the alleged disruption or need to revise
"dozens of policies and regulations," as described in the Declaration of Clifford L.
Stanley ("Stanley Declaration"), Under Secretary of Defense for Personnel and
Readiness. (See Stanley Decl. ¶¶ 22-26, 35-36.)

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 20, 2010

Furthermore, to the extent Defendants now submit evidence in the form of the
Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by
the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell
Act's effect on military readiness and unit cohesion.1

The Court's injunction affects the discharge and separation from service of
members of the armed forces pursuant to the Don't Ask, Don't Tell Act. The
injunction would not impede the Defendants' stated goals of amending policies and
regulations and developing education and training programs. Though the Stanley
Declaration identifies some general categories of regulations – housing, benefits, re-
accession, military equal opportunity, anti-harassment, standards of conduct, and
rights and obligations of the chaplain corps – it fails to identify the specific policies
and regulations or why they must be changed in light of the Court's injunction. The
injunction does not affect benefits, for example, and the Uniform Code of Military
Justice governs harassment issues.

Further, the statements in the Stanley Declaration are vague, and belied by the
evidence at trial that Defendants chose not to rebut. For example, the evidence
presented by Plaintiff regarding housing and the negative effect the Don't Ask, Don't
Tell Act had on military readiness and unit cohesion. So, to the extent Defendants
now argue that stopping discharge under the Act will harm military readiness and unit
cohesion, they had the chance to introduce evidence to that effect at trial.
Defendants did not do so. The evidence they belatedly present now does not meet
their burden to obtain a stay.

Turning to the first factor identified in Nken, Defendants have not demonstrated
a "likelihood" of success on the merits nor have they made a showing that their
appeal presents a "serious legal question." See Winter, 129 S. Ct. at 375 (rejecting
the Ninth Circuit's "possibility" standard); Golden Gate Rest. Ass'n, 512 F.3d at 1115-

1
Defendants also submit as an exhibit a copy of an interview with President
Obama from Rolling Stone. (See Stanley Decl., Ex. A.) This evidence is hearsay
not subject to an exception, including the residual exception for evidence having
"equivalent circumstantial guarantees of trustworthiness." See Fed. R. Evid. 803,
804, 807. Accordingly, the Court has not considered it.
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MINUTE ORDER of October 20, 2010

16 (discussing the standard for "serious legal question"). Defendants' continued


reliance on four out-of-circuit cases holding the Don't Ask, Don't Tell Act
constitutional is misplaced; as the Court has pointed out previously, Able v. United
States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir.
1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc), all predate
the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), which
recognized a fundamental right to "an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct." 539 U.S. at 562. Cases
decided before Lawrence are not relevant to this case because the Court's decision
relies upon the Ninth Circuit's holding in Witt v. Dep't of Air Force, 527 F.3d 806 (9th
Cir. 2008), which adopted the heightened level of scrutiny announced in Lawrence.
See Witt, 527 F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an
intrusion "upon the personal and private lives of homosexuals, in a manner that
implicates the rights identified in Lawrence," and is subject to heightened scrutiny).
Defendants chose not to appeal Witt and accordingly are bound by it.

Defendants also argue they meet the burden here by citing to Cook v. Gates,
528 F.3d 42 (1st Cir. 2008). Cook is distinguishable, however. There, the district
court granted a motion to dismiss, rather than ruling after a trial on the merits, as
here. Furthermore, as discussed more fully in its Memorandum Opinion, the Court
finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a facial
due process challenge to the Don't Ask, Don't Tell Act, the Cook court presented two
"circumstances under which the Act would be valid." See Cook, 528 F.3d at 56
(holding the Act is constitutional on its face because it provides for separation of a
servicemember "who engages in a public homosexual act or who coerces another
person to engage in a homosexual act" (citing United States v. Salerno, 481 U.S.
739, 745 (1987))). Those examples are bases for discharge of any servicemember,
whether the conduct in question is homosexual or heterosexual. (See Mem. Op. at
15-16 (noting that "the Cook decision provide[d] no citation to any provision of the
Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for
discharge under that legislation").) Thus, Defendants have not shown a likelihood of
success on appeal.

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 20, 2010

The second Nken factor examines whether Defendants are likely to be


irreparably harmed if a stay is not issued. Defendants argue invalidation of a statute
"irreparably injures the Government and itself constitutes sufficient grounds for a
stay." (Application at 5 (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1997) (Rehnquist, J., in chambers); Coal. for Econ. Equity v. Wilson,
122 F.3d 718, 719 (9th Cir. 1997) (citing New Motor Vehicle in denying emergency
motions for stay of mandate pending petition to the Supreme Court for writ of
certiorari)).) Defendants have not shown, however, a likelihood they will suffer
irreparable harm. As noted above, the injunction requires Defendants to cease
investigating and discharging servicemembers pursuant to the Act. It does not affect
Defendants' ability to revise their policies and regulations or to develop training and
education programs, the only activities specifically mentioned in the Stanley
Declaration. Furthermore, Defendants merely conclude, without explanation, that
"confusion and uncertainty" will result if the injunction remains in place. Thus,
Defendants have failed to establish they are likely to suffer irreparable injury if a stay
is not granted.

The third Nken factor considers whether the requested stay would substantially
injure the other parties interested in the proceeding. Defendants do not explicitly
address this factor in their Application, instead arguing "the harms to Defendants . . .
outweigh any harm to servicemembers that may result from a stay." (Application at
12.) As Plaintiff correctly points out, the injury to interested parties here is the
violation of servicemembers' constitutional rights to due process and freedom of
speech and to petition the government, rights which were vindicated during the
course of the trial. See Goldie's Bookstore, Inc. v. Superior Court, 739 F.3d 466, 472
(9th Cir. 1984) (noting a presumption of harm where a plaintiff has shown a violation
of a constitutional right). As discussed more fully in the Court's Order Granting
Permanent Injunction on October 12, 2010, Plaintiff established at trial that the Don't
Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental
rights, and there is no adequate remedy at law to prevent the continued violation of
those rights. (See Doc. No. 249 at 3 (citing American-Arab Anti-Discrimination
Comm. v. Reno, 70 F.3d 1045, 1071 (9th Cir. 1995) (holding there is no adequate
remedy at law for "denial of legalization based on a constitutional violation")).) As a
stay would force Defendants to continue violating

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 20, 2010

servicemembers' constitutional rights, the third factor strongly weighs against


granting a stay.

Finally, the Court must consider whether a stay would serve the public interest.
See Golden Gate Rest. Ass'n, 512 F.3d at 1116 (noting the analysis of where the
public interest lies is a separate and additional consideration from that of irreparable
injury) (citation omitted). Defendants argue a stay favors preserving the status quo
and would prevent "confusion and uncertainty." (Application at 12.) Nevertheless,
"[m]aintaining the status quo is not a talisman." Golden Gate Rest. Ass’n, 512 F.3d
at 1116. Defendants suggest the public interest is identical to the Government's
interest in defending the constitutionality of its statutes, arguing invalidation of a
statute itself "constitutes sufficient grounds to enter a stay." (Application at 5-6
(citing New Motor Vehicle Bd., 434 U.S. at 1351; Coal. for Econ. Equity v. Wilson,
122 F.3d at 719).) The Court's analysis of the public interest is not so narrow,
however. As discussed above, the evidence at trial showed that the Don't Ask, Don't
Tell Act harms military readiness and unit cohesion, and irreparably injures
servicemembers by violating their fundamental rights. The public has an interest in
military readiness, unit cohesion, and the preservation of fundamental constitutional
rights. While Defendants' interests in preserving the status quo and enforcing its
laws are important, these interests are outweighed by the compelling public interest
of safeguarding fundamental constitutional rights. The evidence Defendants
submitted with this Application has not demonstrated otherwise. Thus, Defendants
have not met their burden in showing the public interest here lies in issuing a stay.

II. CONCLUSION
None of the factors the Court weighs in considering whether to enter a stay
favors granting a stay here. Accordingly, the Court DENIES Defendants' Application
for a Stay.

IT IS SO ORDERED.

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