‘Don’t Ask, Don’t Tell’ at the Ninth Circuit: Why the Court and Gay Community Are Wrong


Guestblogger Less than a week ago, a three judge panel of the Ninth Circuit Court of Appeal erased Log Cabin Republicans v. United States from existence. The case, the court said, was "moot," which means that there was no longer a legal issue to be decided, question to be answered, or factual problem in existence. After all, the case sought a declaration that "Don't Ask, Don't Tell" (DADT) was unconstitutional; but, as of September 20, DADT was history, itself erased by long-overdue action from majority Democrats in the last Congress.

Dadt This decision caused uproar among many in the gay legal community. Jon Davidson, Legal Director of Lambda Legal, for example, was "deeply disappointed" in the Ninth Circuit's decision to vacate the lower court's opinion, findings, and conclusions. "It is wrong," Mr. Davidson went on, to require the more than 14,000 service members who were unconstitutionally discharged to start from square one in obtaining the military benefits they lost, getting their military records corrected, and fighting government efforts to collect educational loans they were prevented from working off, among other harms," thus implying that a decision on the merits could have helped address those issues.

Indeed, it could have. But, the Ninth Circuit's decision was right on the mark, at least with respect to its mootness decision. The legislative repeal of DADT mooted Log Cabin. It's hard to argue otherwise. What the gay community is missing -- and what we should be upset about -- is the Ninth Circuit's error in the standard for one of the exceptions to the mootness doctrine. Log Cabin does not fit that exception, either, but that happy coincidence is no reason to excuse the Ninth Circuit from getting the law wrong.

A discussion of why this seemingly esoteric and obscure concept is so important,

Log Cabin Republicans v. United States was filed years ago in a California federal district court. Plaintiffs sought a declaration that DADT was unconstitutional, wiping it from the books and allowing gay and lesbian service members to serve openly. It seemed like a great idea at the time: Republicans controlled Congress from 1994 to 2006 (with a few blips in between) and showed no inclination or interest to repeal the discriminatory statute legislatively. But, when Democrats took control of the White House and Congress, repeal discussions kicked in, culminating the Repeal Act that, after a training period and a 60 day waiting period, would do what Log Cabin tried to do.

The question is whether the repeal of the operative law obviates the need for the lawsuit. In this case, yes.

The Constitution requires a federal court to address only a live "case or controversy," which means that a federal case can only proceed, at any stage, if there is a real fight for the court to mediate. Think of it this way: If you and I were running for office, the election happened tomorrow, and you won, we would hardly continue campaigning. If we were both bidding at a Christie's auction to buy President Kennedy's golf clubs and some O'Henry candybar heirness swoops in and wins, you and I would hardly continue bidding. We'd have no reason to: the object of our fight is gone.

Our fight became moot. Federal courts have no jurisdiction over moot cases, lest we have our judges issuing completely advisory opinions about what they think the law should be if they ever had a case in front of them on a particular issue.

In the same way, Log Cabin became moot. The case was filed in order to seek a declaratory judgment — a statement of law — declaring DADT, 10 U.S.C. 654, unconstitutional and to obtain an injunction on the continued enforcement of the law. But, Section 654 no longer exists. There is no need for an injunction, there is no longer any law to declare unconstitutional, and any statement to the effect that Section 654 was unconstitutional for this or that reason would be purely advisory, or a statement of opinion about the law should be without any specific case to raise it.

Many commentators in the gay community found this regrettable, and as a matter of policy, it is. It is regrettable that this federal lawsuit no longer exists because it had the opportunity to address a host of legal matters important to the community, from the proper standard of review in sexual orientation discrimination cases to what to do with those service members previously ousted under DADT. But, as a matter of law, these issues are collateral or tangential to the basic fight at issue in Log Cabin. And, for jurisdiction and mootness, what matters is not the potential to discuss various related issues, but rather the underlying specific fight or reason you brought the case in the first place.

Therefore, the Ninth Circuit got its mootness holding right.

But, it did not get everything right.

There are exceptions to the mootness doctrine. If you remember our examples of conflicts above — running for office and bidding on an auction item — both of those examples had defined endpoints incapable of repetition. You could run for office again, but that particular election will never happen again; the new owner may sell Jack Kennedy's golf clubs in the future, but he may not and even if he does, it would be a different sale in a different auction. Sometimes, though, conflicts can end because one side voluntarily decides to cede or change course. So, if you and I are running for office, I could simply decide to drop out of the race at some point, leaving you to win unopposed.

But assuming there is no filing deadline in our election example, I could always jump back in and challenge you. This is what lawyers call either "voluntary cessation" or something that is "capable of repetition and evading review." Those are two related, yet distinct exceptions to the mootness doctrine and both would allow a case to continue even if the underlying fight is over. Voluntary cessation refers to when a wrongdoer decides to stop doing wrong once litigation is threatened or commenced, like when a polluter just presses a button and stops polluting. Nothing is stopping that polluter from pressing the button again and polluting again. An act that is capable of repetition but evading review usually refers to something that occurs over a temporary period that may be over by the time litigation commences. The classic example is pregnancy, and an abortion case that could only arise during a pregnancy. As Justice Blackmun wrote in Roe v. Wade, "The normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."

Dadt_santorum The Log Cabiners argued that the repeal of DADT was a voluntary cessation of illegal conduct that could be started again at any point in the future, thus excepting this case from a rigid application of the mootness doctrine. That sounds reasonable; after all, more than a few Republican candidates for president have already committed to trying to reinstate DADT. But, the legislative process is more onerous than pressing a button to start polluting again. As the Ninth Circuit stated, "[r]epeal is 'usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed. Cases rejecting mootness in such circumstances 'are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted.' " (internal citations omitted).

That is half true. Normally, legislative repeal is enough to moot a case, even a case seeking only declaratory judgment. But, it is not because repeal only rarely results in virtual certainty of reenactment.

The rule on voluntary cessation is as follows: "A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (Concentrated Phosphate, 1968). In Log Cabin, the Ninth Circuit formulated the test for voluntary cessation differently: We would only make an exception to mootness if there is "virtual[] certain[ty]" that the law will be reenacted.

Notice the difference? Concentrated Phosphate said a case is moot only if it is "absolutely clear" the illegal acts would not "reasonably" be expected to happen again, meaning that we would make an exception to mootness when it was not absolutely clear. Log Cabin says recurrence has to be absolutely clear to win an exception. That is a different standard.

We could distinguish Concentrated Phosphate from Log Cabin in that the latter is a voluntary cessation by legislative repeal. The argument is that it should be harder to win an exception when Congress goes through the process of repealing its own bad laws than when a business just stops doing something bad. It is easier for the business to start in again; repeal takes quite a bit more effort. This distinction has merit, but it has merit because of the varying degrees of difficulty of the resumption of bad acts. That should be the standard. The harder it is to resume illegality, the harder it should be to win an exception to the mootness doctrine. There should be no bright line rule that legislative repeal almost always creates mootness. Nor should there be a bright line rule that all private cessation does not moot a case. This seems to me to be the best interpretation of the cases and the best policy going forward.

This matters to the gay community because as we continue to win legislative victories, we do not want to always have to choose between successful litigation strategies and successful legislative strategies. Our legislative victories have been growing, but they are still far too tenuous, new, and subject to violently swinging political winds. A rigid mootness doctrine affords little protection for progressive legislative successes especially when it is the very pro-gay legislation that inspires conservatives, traditionalists, and Tea Party folk to run for office and especially when our legislative opponents explicitly campaign on their plans to put anti-gay discrimination back into our laws and constitutions. The Ninth Circuit's misplaced "absolute certainty" standard is, therefore, not only arguably off the mark, but bad policy.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.