Fwd: [PresidentBarakObama] Gay rights victory to vanish

Gay rights victory to vanish
 Lyle Denniston, Reporter
Posted Wed, November 9th, 2011 4:07 pm

One of the modern gay rights movement's most significant courtroom
victories — a California judge's ruling last year striking down the
military's ban on gays and lesbians — is about to vanish from the
federal record books, as if it had never happened.  It will do so
because the Ninth Circuit Court refused on Wednesday to reconsider a
ruling that erased the decision, and everything about it, and barred
any gay rights lawyer from ever trying to use it to help in any other
case.   The brief order by the Circuit Court, denying rehearing by a
three-judge panel, also noted that no judge eligible to vote even
called for a tally on reconsideration by the full en banc court.  This
was a final legal victory for the Obama Administration in a case that
at times had been bitterly contested.


The practical effect of the ruling is two-fold: it does not disturb
the action of Congress and the Pentagon to carry out the actual repeal
of the so-called "don't ask, don't tell" policy (the repeal took
effect September 20), and it eliminated as a precedent of any kind the
decision against the ban in September last year by U.S. District Judge
Virginia A. Phillips of Riverside, Calif.   The denial of further
review by the panel and by the full Circuit Court also left intact a
blistering critique by one of the three judges of any jurist who would
use a 2003 gay rights ruling by the Supreme Court — Lawrence v. Texas
— as the basis for recognizing new rights for homosexuals.  (Circuit
Judge Diarmuid F. O'Scannlain's advice to his colleagues — a
"guidepost for responsible decision-making," he called it — was
described in this post at the time it was issued in late September.)

The case, Log Cabin Republicans v. U.S. (Circuit dockets 10-56634 and
10-56813), was under review in the Ninth Circuit when the Obama
Administration, responding to the repeal of the policy against gays
and lesbians serving openly in the military services, asked the panel
to declare the case moot and to vacate Judge Phillips' decision
against the ban.  The panel did so on September 29.  It had been told
that lawyers expected to try to build on the case as a precedent, but
the panel bluntly said neither they nor anyone else could rely upon
what Judge Phillips had done.

The panel said: "We vacate the district court's judgment, injunction,
opinions, orders, and factual findings — indeed, all of its past
rulings — to clear the path for any future litigation.  Those now-void
legal rulings and factual findings have no precedential, preclusive,
or binding effect."

Reacting, lawyers for the advocacy group, Log Cabin Republicans, in
mid-October sought panel or en banc rehearing.   First, the lawyers
contended that their case was not moot, and then argued that the panel
had acted without even considering the legal arguments the group had
made on that point.

The plea also challenged the panel's "sweeping, and unnecessary,
vacatur order," saying it "eradicates over a dozen thoughtful district
court rulings, including factual findings after a full bench trial.
It not only condemns any future servicemember who may claim injury
from an unconstitutional discharge order under [the policy] to
re-litigate the entire factual basis for this lawsuit, at an enormous
cost of judicial resources, but it calls into public question the very
validity of the proceedings below, which were held and concluded
before the Repeal Act was enacted."

When a federal court stands up to "the combined might of the other
branches," that filing contended, "it should ensure that its own
authority is at its maximum, to show that it gave this matter the
sustained attention it merits."

Among other arguments, the Log Cabin Republicans' counsel contended
that their lawsuit had prodded President Obama and Pentagon leaders to
move more rapidly to implement the repeal law.

With the case declared moot, the counsel contended, the Pentagon and
Congress were left with nothing to bar them from re-instituting a new
limit of military service by gays and lesbians.   Moreover, it argued,
servicemembers who had been discharged because of the policy were
continuing to suffer adverse consequences from the policy.

Their filing insisted that they were not asking the Circuit Court
panel to rule that Judge Phillips' ruling actually could be used as an
argument in future cases growing out of the policy, but rather to
leave that to federal trial judges when new cases arose.  Instead,
they argued, what the panel did was to create "the fiction that this
case never existed, that the matter was never tried, and that judgment
that DADT is unconstitutional was never entered.   It especially goes
too far in its imperious directive that neither Log Cabin, nor anyone
else, may ever in future use the district court's rulings in any
fashion whatever.  To thus sow the fields of law with salt is
unnecessary and gratuitous."

Under federal court rules, it was up to the Circuit panel to decide
whether to ask the other side — here, the Pentagon — to respond to the
rehearing request.   The panel chose not to do so, and took no action
until it issued its order Wednesday bringing the case to a complete
end.



--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy



--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy


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