Bench Memos

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Yesterday’s Anti-DADT Ruling


Yesterday a federal district judge in California opined (in Log Cabin Republicans v. United States) that the federal law governing homosexuals in the military—popularly known as “Don’t Ask, Don’t Tell”—violates substantive due process and First Amendment speech rights.  Judge Virginia A. Phillips ruled that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

Some initial observations:

1.  The court’s ruling is the latest step in the Obama administration’s sabotage of the Don’t Ask, Don’t Tell law.  (See, relatedly, the Obama administration’s ongoing sabotage of the Defense of Marriage Act.)  As I’ve discussed in detail, then-Solicitor General Elena Kagan, in violation of her commitment to vigorously defend Don’t Ask, Don’t Tell, declined to seek Supreme Court review of the rogue Ninth Circuit ruling in Witt v. Department of Air Force that applied a higher level of scrutiny to Don’t Ask, Don’t Tell than Kagan herself had acknowledged was required under prevailing Supreme Court precedent. 

Because of Kagan’s dereliction of duty, Judge Phillips proceeded to trial on DADT and applied the heightened scrutiny that Witt wrongly required.  (See slip op. at 48.)

Further, the Obama DOJ failed to offer a serious defense of Don’t Ask, Don’t Tell at trial.  As Judge Phillips states several times in her opinion (in slightly different formulations), DOJ “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.”  (Slip op. at 84.) 

Why did DOJ not call as witnesses those military leaders who support Don’t Ask, Don’t Tell?  The obvious explanation is that the Obama administration, which seeks repeal of Don’t Ask, Don’t Tell, doesn’t want to credit its political opponents on this issue.  In other words, DOJ evidently let the Obama administration’s political agenda trump its duty to defend a federal law.

And, of course, the Obama administration has ample reason to believe that a sympathetic or gullible media will cover up its sabotage.  (Indeed, the Los Angeles Times, in reporting yesterday’s ruling, asserts that DOJ “vigorously defended” the law.)

2.  Judge Phillips’s ruling in favor of plaintiff’s facial challenge misstates and misapplies the relevant standard.  Judge Phillips seems to contend that the Court’s opinion in Washington State Grange v. Washington State Republican Party walks away from the Salerno standard for facial challenges—under which a plaintiff can succeed in a facial challenge only by establishing that a law is unconstitutional in all of its applications.  But all that Justice Thomas’s majority opinion in Washington State Grange says is that the facial challenge in that case failed both under Salerno and under the lower standard that “some Members of the Court” have proposed.  There’s no basis for reading it as abandoning Salerno.  And the facial challenge clearly fails under Salerno.

Moreover, Judge Phillips seems to misapply even this alternative lower standard, under which a facial challenge must fail if a statute has a “plainly legitimate sweep.”  She seems to think its dispositive that the Don’t Ask, Don’t Tell law (in her judgment) “captures within its overreaching grasp” certain activities that aren’t within a “legitimate sweep.”  (See slip op. at 14-15.)  But the relevant question under this alternative standard would seem to be whether there are sufficient activities that properly fall within the “sweep” of the law, not whether there are some or many activities that fall outside it.

3.  Some of the early reporting on the case suggests, as this Washington Post article puts it, that the ruling “is likely to put more pressure on Congress to act on pending legislation that would repeal” Don’t Ask, Don’t Tell.  I don’t see why that would be, especially when one understands that the Ninth Circuit’s rogue ruling in Witt and the Obama administration’s sabotage are largely responsible for the ruling.  Indeed, I think that the effect may be to delay any repeal effort, until Congress can be certain of the legal landscape in which it would be legislating. 

I’ll add, for what it’s worth, that I do not have a firmly held position on what laws and policies ought to govern the matter of homosexuals in the military.  I’d be inclined to defer heavily to expert military advice that is untainted by political considerations (though I recognize that there may well be fair debate over what counts as such).


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