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September 01, 2011

Will Log Cabin challenge to DADT continue?

You might wonder why a court case challenging a dead and almost buried law has a need to continue. The main reason lies in what one could call DADT's collateral damage: the ongoing claims by those who were discharged under it in the past to compensation and restitution of benefits.  The Ninth Circuit will hear argument this morning (California time) on whether the case, in which District Court Judge Virginia Phillips ruled that DADT was unconstitutional, has been mooted by the legislation that is slated to culminate in full repeal on September 20.

Following is a summary of the state of play (excerpted) from Metro Weekly:

...Mootness is a legal term that prevents courts from rendering advisory opinions because, under the Constitution, federal courts can only hear actual "cases" or "controversies."

Defense Department general counsel Jeh Johnson has defended the government's argument that repeal of DADT renders the LCR challenge moot, saying, "Overall, we take that view that once certification and repeal happens, that lawsuit becomes moot."

Later, on the day it was announced that the DADT Repeal Act-required certification had been made, he added, "That lawsuit is about the constitutionality of 10 U.S.C. 654. ... 10 U.S.C. 654 is being repealed. ... In 60 days, it will be off the books. So, that's why we say the lawsuit should be dismissed because the issue is moot."

LCR notes, however, that U.S. District Court Judge Virginia Phillips's judgment in the case included more than just the injunction on enforcement of DADT but also the declaration that DADT is unconstitutional.

Why does it matter whether the case is moot or not?

"Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges," LCR's Woods wrote in a filing to the court, "a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot."

In response, Johnson has said that other cases could be and have been filed to address those issues. The government has argued that because the case, in its view, is moot following repeal the case should be dismissed and Judge Phillips's ruling vacated.

In a news release issued in advance of today's arguments, Woods responded by saying, "The government is trying to remove the legal precedent established in our case so that anyone claiming back pay, reinstatement or a change in discharge status because he or she was discharged under an unconstitutional law would be unable to take advantage of the precedent we set."

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