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

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.


  1. Matt says

    I hate to say this, but does anyone else feel like the repeal of DADT is an empty victory? Not just because it took so long, but because I am told that nothing has changed for transgender service members.

    I am not a member of the transgender community but I am despondent about their having been left behind. Oh well–one step at a time I suppose. How many times have we heard that?

  2. GayDad says

    Ari -as a lawyer, I appreciate your analysis so I will not have to read the opinion. I would like your thoughts on the concurring opinion on Judge O’Scannlain (sp?) which I am told is a “roadmap” for courts to avoid extension of Lawrence v. Texas. Please write about that next.

  3. Ted B. (Charging Rhino) says

    So….if LCR’s case is erased from legal memory, the Court’s finding of DADT’s “unconstitutionality” is unavailable for future precedence as a point of law and a finding of fact?
    To a layman, this makes no sense.

    And all those who were found to have been unconstitutionally discriminated against by DADT where not actually discriminated-against?

  4. TommyOC says

    What’s the practical implication of the Ninth Court’s decision on those veterans seeking back pay and benefits?

    It would seem to me that any case brought by a former member of the military would have to first establish that DADT was unconstitutional… which brings us right back to this case, doesn’t it?

    What’s the strategy that could possibly be employed now?

  5. Josh says

    I’m not a lawyer, but it seems your analysis misses two points, one of which was already commented upon above:

    1. Did the declaration of mootness really require the court to vacate the findings of fact? If not, then what was the court’s motivation to do so, other than pure animus towards gay people?

    2. (the more important point!) You state that legislation requires more effort to reinstate than pushing a button, but you forget that no legislation is required to bring back DADT. The repeal law did NOT contain any protection for LGBT servicemembers like myself. DADT could be brought back by mere executive order, or even simply by Pentagon policy in a future administration. That would be a very simple act inceed, which would seem to meet the standard of “capable of repetition.” What say you, Ari?

  6. will says

    The Ninth Circuit did not say quite what you say it said. The opinion states: “Cases rejecting mootness in such circumstances [when the legislature has the power to reenact] ‘are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted.'” The opinion then takes the phrase “virtual[] certain[ty]” (which you quote) from Helliker, a Ninth Circuit decision from 2006 that considers the issue of statutory repeal and mootness at some length (by my standards, not by yours!). Neither the Log Cabin decision nor Helliker cite Concentrated Phosphate (1968), much less misread or misconstrue it.

  7. says

    If the “DADT is unconstitutional” case does go before the whole Ninth Circuit, it seems doubtful they would uphold the decision of the lower court. There’s the mootness issue (the law was repealed by Congress), but courts (especially the Supreme Court) would seem to give deference to Congress’s power in Article 1, Section 8, Clause 14 (“To make Rules for the Government and Regulation of the land and naval Forces”) so that they might allow Congress to have this power, mootness aside. This would not be the same as the marriage case, where equal protection rights in the general population (not in the military) are at stake.

  8. NVAgBoi says

    Mr. Waldman, I jsut have to point out one thing which I think is important in the arguments surrounding mootness: the law repealing DADT does ONLY that, it does not create a portection against discrimination for GLB service members or recruits. Why is this important? Well, it specifically now leaves the decision about “suitability” up to the Pentagon and/or the White House. In your arguments over the application of the mootness doctrine you fail to address this issue. Ostensibly, I claim, it is much easier for the act per se (ie- removal of service members or bar to entering service based on an immutable characteristic) to once again become an official policy governing the US Armed Services. At the highest level, just one man or woman, elected as President and issuing the order as Commander-in-Chief could, under the current law, choose to reinstate such a policy…..or allow a lower-level command officer or bureaucrat do the same without contending it. That means that the standard to be applied, if we hold your argument as appropriate is, then, arguably much lower. Thoughts?

  9. Josh says

    No NVAGBOI, I am not Josh Seefried. I am another, less visible, Josh! But I’m glad I’m not the only one who feels that Ari missed an important point (which is unusual for him). I hope he will address it.

  10. Mark440 says

    And now consider this. DADT is “moot”…but there are now thousands who have either come out or are re-enlisting. And you can bet somebody has a scorecard somewhere for when and if the repeal is repealed. The current status is a trojan horse.

  11. Mike German says

    Good explication of the latest Ninth Circuit nonsequitur. After nearly 30 years of practice before that bloated outfit – what part about “cut it back!” can’t Congress understand? – I’ve stopped trying to explain its aberrant rulings and just hope that SCOTUS will make things right. And, far more than with any other CCA, it usually does.

  12. Matt says

    Actually there is a long history of precedent in which the voluntary cessation exception to mootness does not apply when the cessation is caused by legislative action since the assumption is that legislatures don’t just repeal laws willy-nilly.

    There are cases where the legislative repeal didn’t moot the case, but those were different because those legislatures basically repealed the statute and then reenacted a new one that was basically the exact same thing.

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