Challenge to 'don't ask, don't tell' dismissed

[Newsjock]

Source: San Francisco Chronicle

A federal appeals court today dismissed a seven-year-old suit challenging the now-repealed "don't ask, don't tell" law that barred openly gay and lesbian service members and said the case would have to start from scratch if a future Congress re-enacted the law.

Congressional repeal of the 1993 law, effective Sept. 20, ended the legal controversy and made the case moot, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

The three-judge panel granted the Obama administration's request for dismissal over the objections of the Log Cabin Republicans, a gay-rights group that challenged the law in 2004.

Some of the nearly 14,000 service members discharged since 1993 still need judicial protection, Dan Woods, the group's lawyer, told the court at a Sept. 1 hearing. Most received honorable discharges, but Woods said the rest are ineligible for veterans benefits and cannot be buried in military cemeteries, and some have been sued by the government to recoup loans.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/29/BAOD1LBC4R.DTL&tsp=1

[MNBrewer]

1. That's unfortunate

I know this exactly the result that Barack Obama wanted, but it's unfortunate. It's unfortunate for every service member that was kicked out.

<http://gay.americablog.com/2011/09/9th-circuit-wants-to-really-really.html>

"And it's not entirely clear that repeal = no harm. A lot of people have "homosexual" in their discharge papers, and that can potentially cause harm when you go looking for a job. Also, a lot of other people have had their retirement pay docked after being discharged under DADT, and have been required to repay their military college tuition and training expenses. And the Obama administration has done nothing to change that. Those damages still remain post-appeal. So, constitutionality would seem relevant even with repeal. There is a present harm. (Not to mention those who lose their jobs as a result of the unconstitutional policy.)"

[jberryhill]

2. Are these claims in the original complaint?

[MNBrewer]

3. I don't know

Does it make a difference? The law has not been ruled unconstitutional, therefore is legally considered valid up to the point where it was certified repealed a few weeks ago.

It was important to have the law struck down as unconstitutional. Now there's no precident. in essence, No harm, no foul.

[jberryhill]

4. Yes it makes a difference

Lawsuits aren't brought on the proposition of "This law is unconstitutional" and then you make up an aggrieved plaintiff as you go along.

Courts can award damages to (a) a plaintiff in the suit, or (b) a class of plaintiffs in a class action suit.

This, as I understand, was premised on associational standing of a group representing servicemembers, but was not a suit by servicemembers themselves or a class.

In other words, who is it - in this suit - that is suing to get their denied benefits, status, pension, etc.?

This ruling is not preclusive of a suit for those things if brought by a plaintiff or class of plaintiffs specifically claiming those things in the suit, and to whom relief can be awarded by the court.

The plaintiff in this case is the Log Cabin Republicans. The Log Cabin Republicans are not a servicemember, have not been deprived of any post-separation benefits, and cannot be awarded post-separation benefits.

What was sought in this suit was declaratory relief which, if obtained, would have collateral effect on such a suit by other servicemembers, but the complete relief sought in this case has been effected. The fact that the collateral effect has been lost is not of particular impact, because suits are decided on the complaint at hand, and not on the proposition that the outcome would have collateral effect.

[MNBrewer]

5. I guess it's back to square one, then

Which, again, is a shame.

[jberryhill]

6. Well...

It's not as if everyone was reimbursed for prior losses attributable to:

Slavery
Prohibition
Sodomy prosecution
Denial of suffrage
Abortion bans
Inter-racial marriage

Some of the issues here are more tractable than some of the direct or indirect consequences of those policy shifts - whether judicial or structurally constitutional, but it does give you a different perspective if the word "reparations" is eye-roll inducing to you.

If my point is not clear, take Lawrence v Texas. There are identifiable persons alive today who suffered quantifiable economic damage as a consequence of, for example, having been imprisoned under anti-sodomy laws. After Lawrence, did someone send them checks?

After Roe, did women who suffered physical harm from illegal abortions, with which they continued to suffer, issued some sort of remedial compensation?

Again, some of the accounting issues here are simple for certain of the harms you identified. Some are not so simple, such as harms arising from denial of other employment (leaving alone tracing it to a single factor).

But is ease of accounting what drives the overall principle?

Other societies have gone through this type of exercise with, for example, certain remedial compensations made by Germany and German industry arising from the use of internees as slave labor. But the US has not generally done this sort of thing.

[No Elephants]

7. Are you implying that a final judgment declaring DADT unconstitutional would

not have made any difference to anyone? (Monetary damages are not everything.)

If so, I disagree.

On the other hand, a verdict upholding the constitutionality of the law would not have been a great thing.

[jberryhill]

8. No

But you cannot get a ruling in a case for the sole purpose that it will be useful for other cases.

Article III of the Constitution extends the judicial power to "cases and controversies". This phrase has long been interpreted to mean that federal courts are not in the business of settling bar bets. Whether a ruling in some particular lawsuit will have effects on some hypothetical situation other than the premise of the one at hand, cannot be a sole reason for proceeding.

This was one of the procedural problems that Roe had to get over. First, you needed a pregnant plaintiff seeking an abortion. The problem is that the full appeal process takes more than nine months. Now there is s slim exception for cases representing circumstances which are repetitive, but which evade judicial review.

You can "disagree", but this is really basic to the way courts work. One of the things that irritates me about civics education is that the way courts work is not taught in any real depth.

A suit CAN proceed on the basis of a plaintiff's claim that they are now deprived of post separation benefits, for example. However, that is not the premise on which THIS case was filed, and a federal court is not going to keep the suit going on the basis of "some other claim" by "some other plaintiff".

Of course if courts kept mooted cases of all kinds going just for shits and giggles, there would be all kinds of useful collateral effects (the name for the value of one case on another). But they don't do that.

And one thing you don't get to do in a lawsuit is to premise it on an initial complaint, run it for two years, and then change the basis of the suit to something that was not in the initial complaint. Lawsuits would never end. People complain all the time about how long it takes to get a case through the court system, but if you had the opportunity to reframe it at any time, nothing would get through.