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Case: 10-56634, 10/20/2010, ID: 7515210, DktEntry: 3-1, Page 1 of 25

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3


IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________
LOG CABIN REPUBLICANS
Plaintiff-appellee,
v.
UNITED STATES, et al.,
Defendants-appellants.
___________________________________)

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No. 10-56634
[Civil Action No.
04-cv-08425 C.D. Cal. ]

GOVERNMENTS EMERGENCY MOTION FOR


STAY PENDING APPEAL UNDER CIRCUIT RULE
27-3 AND FOR TEMPORARY ADMINISTRATIVE STAY

TONY WEST
Assistant Attorney General
ANDR BIROTTE JR.
United States Attorney
ANTHONY J. STEINMEYER
(202) 514-3388
AUGUST E. FLENTJE
(202) 514-3309
HENRY WHITAKER
(202) 514-3180
Attorneys, Appellate Staff
Civil Division, Room 7256
Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530

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CIRCUIT RULE 27-3 CERTIFICATE


(1) Telephone numbers and addresses of the attorneys for the parties
a. Counsel for the Defendants/Appellants
Anthony J. Steinmeyer (anthony.steinmeyer@usdoj.gov)
(202) 514-3388
August E. Flentje (august.flentje@usdoj.gov)
(202) 514-3309
Henry Whitaker (henry.whitaker@usdoj.gov)
(202) 514-3180
Attorneys, Civil Division, Appellate Staff
Department of Justice
950 Pennsylvania Ave., NW Room 7256
Washington, D.C. 20530
b. Counsel for Plaintiff/Appellee
Dan Woods (dwoods@whitecase.com)
(213) 620-7772
Earle Miller (emiller@whitecase.com)
(213) 620-7785
Aaron Kahn (aakahn@whitecase.com)
(213) 620-7751
White & Case LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071-2007
(2) Facts Showing the Existence and Nature of the Emergency
As set forth more fully below, on October 12, 2010, the district court entered a
permanent injunction which enjoins, among other things, enforcing or applying the
Dont Ask, Dont Tell Act [codified at 10 U.S.C. 654] and implementing
regulations, against any person in the government. Inj. at 2 (Attachment A). As
explained in more detail in our stay motion and the attached declaration, if not stayed

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immediately, the district courts order precludes the administration of an Act of


Congress and risks causing significant immediate harm to the military and its efforts
to be prepared to implement an orderly repeal of the statute.
We respectfully request that the Court enter an administrative stay by today
October 20, 2010, pending this Courts resolution of the governments motion for a
stay pending appeal, which would maintain the status quo that prevailed before the
district courts decision while the Court considers the governments stay motion.
(3) When and How Counsel Notified
Counsel for plaintiff were notified of this motion by telephone call to Earle
Miller on October 18, 2010, and counsel indicated that plaintiff would oppose this
motion. This motion is being electronically filed, and in addition a copy of this
motion is being sent via electronic mail today to counsel for plaintiff.
(4) Submission to District Court
The government requested a stay pending appeal and an administrative stay
from the district court in a motion filed on October 14, 2010. That motion was
based on the same grounds set forth in this motion. The district court denied the
motion on October 19, 2010. (Attachment B).
/s/Henry Whitaker
Henry C. Whitaker

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INTRODUCTION AND SUMMARY


The government respectfully seeks an emergency stay pending appeal of the
district courts injunction of October 12, 2010 (Attachment A). The district courts
order permanently enjoins the government from enforcing or applying the Dont
Ask, Dont Tell Act [codified at 10 U.S.C. 654] and implementing regulations,
which have been in effect since 1993 and set forth requirements respecting the
service of gays and lesbians in the military, against any person. Inj. at 2. The
district courts permanent injunction, which extends well beyond the individuals
plaintiff purported to represent before the district court and is applicable to any
member of the military anywhere in the world, is at odds with basic principles of
judicial restraint requiring courts to limit injunctive relief to the parties before the
court, and is contrary to decisions of other courts, which have sustained the
constitutionality of the statute.1
The district courts decision holding that an Act of Congress is invalid on its
face and permanently enjoining enforcement of the statute anywhere in the world
itself causes the government the kind of irreparable injury that is routinely the basis
for stays pending appeal. See Coalition for Economic Equality v. Wilson, 122 F.3d 718,

The Administration does not support 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their
constitutionality.

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719 (9th Cir. 1997) (it is clear that a state suffers irreparable injury whenever an
enactment of its people or their representatives is enjoined); New Motor Vehicle Bd. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); see also
Walters v. Natl Assn of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J.,
in chambers). Because of this well-recognized harm, [i]n virtually all of these cases
the Court has also granted a stay if requested to do so by the Government. Bowen v.
Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers).
The worldwide injunction also threatens to disrupt the ongoing efforts to
fashion and implement policies to effect any repeal of 654 in an orderly fashion.
The President strongly supports repeal of the statute that the district court has found
unconstitutional, a position shared by the Secretary of Defense and the Chairman of
the Joint Chiefs of Staff. Although the Administration has called for a repeal of the
statute, it has made clear that repeal should not occur without needed deliberation,
advance planning, and training. To that end, the Secretary of Defense established the
Comprehensive Review Working Group, which is currently nearing completion of a
comprehensive review of how best to implement a repeal of 654. The Working
Group has visited numerous military installations across the country and overseas,
where it has interacted with tens of thousands of servicemembers on this issue. The
Working Group has also conducted an extensive, professionally developed survey
that was distributed to a representative sample of approximately 400,000
2

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servicemembers. An abrupt, court-ordered end to the statute would pretermit the


Working Groups efforts to ensure that the military completes development of the
necessary policies and regulations for a successful and orderly implementation of any
repeal of 654. The significant impairment of the Departments efforts to devise an
orderly end to the statute would cause irreparable harm.
We respectfully request that the Court stay the district courts order pending
appeal and enter an immediate administrative stay while it considers whether to grant
a stay pending disposition of the appeal. The government attempted to obtain this
relief from the district court, which the court declined to grant. See Attachment B,
Order denying governments motion for emergency stay.
STATEMENT
A. Title 10 U.S.C. 654 provides for separation from the military if a member
of the armed forces has (1) engaged in, attempted to engage in, or solicited another
to engage in a homosexual act; (2) stated that he or she is a homosexual or bisexual,
or words to that effect, unless there is a further finding . . . that the member has
demonstrated that he or she is not a person who engages in, attempts to engage in,
has a propensity to engage in, or intends to engage in homosexual acts; or (3)
married or attempted to marry a person known to be of the same biological sex. 10
U.S.C. 654(b)(1)-(3).
Military regulations provide that [a] Service members sexual orientation is
3

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considered a personal and private matter, and is not a bar to continued service unless
manifested by homosexual conduct as specified by the regulations. DOD Ins.
1332.14 Encl. 3 8.a.1; DOD Ins. 1332.30 Encl. 2 3.
B. Plaintiff Log Cabin Republicans is a non-profit membership organization
founded in 1977. Plaintiff identifies its mission as to work within the Republican
Party to advocate equal rights for all Americans, including gays and lesbians.
Mission Statement, available at http://online.logcabin.org/about/mission.html. Log
Cabin Republicans brought this suit in 2004 claiming that 654 and its implementing
regulations violate substantive due process, equal protection, and the First
Amendment. The district court denied the United States motion to dismiss the suit
and motion for summary judgment.
After holding a bench trial, the district court issued an opinion holding that the
statute is unconstitutional on its face. As a threshold matter, the district court ruled
that Log Cabin Republicans had demonstrated representational standing to challenge
the statute on the basis of injuries the statute allegedly caused to two individuals that
Log Cabin Republicans claimed as members. Op. 2-13 (Attachment C).
The district court then applied heightened scrutiny to plaintiffs substantive
due process constitutional challenge, holding that the government must demonstrate
that the statute advance[s] an important governmental interest, the intrusion must
significantly further that interest, and the intrusion must be necessary to further that
4

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interest. Op. at 48 (quoting Witt v. Department of Air Force, 527 F.3d 806, 819 (9th
Cir. 2008)). The court acknowledged the important governmental interest in
military readiness and unit cohesion, id., but held the statute unconstitutional because
it found, based on evidence submitted at trial rather than evidence before Congress,
that the statute adversely affects the Governments interests in military readiness and
unit cohesion. Op. at 56; see Op. at 48-65. The district court also held the statute
facially unconstitutional under the First Amendment, concluding that it was a
content-based restriction on speech because it permits discharge based on an
admission that an individual is gay or lesbian. Op. at 79-80.
The court then permanently enjoined the United States and the Secretary of
Defense, as well as their agents, servants, officers, employees, attorneys, and all
persons acting in participation or concert with them or under their direction or
command, from enforcing or applying 654 and implementing regulations,
against any person under their jurisdiction or command. Inj. at 2. The court also
ordered the government immediately to suspend and discontinue any investigation,
or discharge, separation, or other proceeding, that may have been commenced under
the statute and its implementing regulations. Id.
ARGUMENT
This Court considers four factors in determining whether to grant a stay
pending appeal: (1) whether the stay applicant has made a strong showing that he is
5

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likely to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies. Golden Gate
Restaurant Assn v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The Court has further
explained the relationship between these factors by grouping them into two
interrelated legal tests that represent the outer reaches of a single continuum. Id.
(quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)). At one end of the
continuum, the moving party is required to show both a probability of success on the
merits and the possibility of irreparable injury. . . . At the other end of the
continuum, the moving party must demonstrate that serious legal questions are raised
and that the balance of hardships tips sharply in its favor. Id. (quoting Lopez, 713
F.2d at 1435). A stay is required under either formulation.
I.

The District Courts Worldwide Injunction Should Be Reversed


The district court has declared 10 U.S.C. 654 unconstitutional and entered a

permanent injunction immediately preventing the government from enforcing the


statute against any servicemember anywhere in the world. That extraordinary
decision should be reversed on several independent grounds.
A. The district court erred at the threshold in concluding that Log Cabin
Republicans has standing. Log Cabin claimed no injury to itself, but instead
6

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attempted to establish standing based on alleged injuries to two of its members,


which is a basis for representational standing by an organization only if those
members would otherwise have standing to sue in their own right. Hunt v.
Washington State Apple Advertising Commn, 432 U.S. 333, 343 (1977).
1. There was no dispute that the one named member of the organization that
Log Cabin offered in support of its standing to bring suit John Nicholson, a former
member of the military who was discharged under the statute admitted that he was
not a member of the Log Cabin Republicans when the organization commenced this
lawsuit. Op. at 5. That should have been the end of the matter, because a plaintiff
must have standing at all times during the litigation, including when the lawsuit was
commenced. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180
(2000); Wilderness Society v. Rey, 2010 WL 3665713, at *5 (9th Cir. Sept. 22, 2010)
(The existence of federal jurisdiction ordinarily depends on the facts as they exist
when the complaint is filed(emphasis added)); Schreiber Foods, Inc. v. Beatrice Cheese, Inc.,
402 F.3d 1198, 1202 n.3 (Fed. Cir. 2005).
The district court held that Log Cabin had standing because Nicholson became
an honorary member of the organization while the litigation was pending. Op. at 7.
But even if plaintiffs standing could be established by events occurring after the
filing of the complaint, Log Cabins membership is limited to dues-paying members
who are Republicans. See dkt. 160 Ex. 8, at 2; 144 Ex. A, at 1-2. Nicholson paid no
7

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dues to the organization during the period he claimed membership, see Op. at 5;
Nicholson Dep. at 9:14-10:7, Mar. 15, 2010, Ex. 2, and admitted that he was not a
Republican, Trial Tr. vol. 1, 1219, July 21, 2010.
2. The other person Log Cabin Republicans offered to establish standing was
an anonymous individual currently serving in the military, John Doe. Doe
submitted a two-page declaration averring that he was gay and feared that he would
be discharged under the statute. See Trial Ex. 38, at 2. Does declaration states that
he fear[s] that challenging the constitutionality of the statute will subject [him] to
investigation and discharge pursuant to the statute, Trial Ex. 38, at 2, but the
declaration states no plan to violate the statute and does not suggest that Doe has
been threatened with discharge. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th
Cir. 2009). Accordingly, Doe has not demonstrated the injury necessary to establish
standing for a preenforcement challenge, especially in the military context. See
Schlesinger v. Councilman, 420 U.S. 738, 756-58 (1975).
In any event, the only evidence plaintiff offered in support of Does standing
was (1) a conclusory, two-page declaration submitted during the litigation
representing that he is currently a member of the Log Cabin Republicans, Trial Ex.
38, and (2) the testimony of a member of its Board of Directors and former counsel
to plaintiff in this very case Martin Meekins stating that Doe had been a member
since September 2004 (the month immediately prior to the filing of this lawsuit). See
8

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Op. at 9-10. But there was no evidence that Doe was a Republican, and the evidence
showed that Doe had failed to keep up his membership dues. See Op. at 11.
B. The government has also shown a likelihood of success in its argument that
the district court erred in ruling 654 unconstitutional on its face.
1. It is well established that judicial deference . . . is at its apogee when
Congress legislates under its authority to raise and support armies. Rumsfeld v. Forum
for Academic & Institutional Rights, 547 U.S. 47, 58 (2006) (quoting Rostker v. Goldberg,
453 U.S. 57, 70 (1981)); see Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (the composition
. . . of a military force [is] essentially [a] professional military judgment[], subject
always to civilian control of the Legislative and Executive Branches). In the military
context, a court must be careful not to substitute [its] judgment of what is desirable
for that of Congress, or [its] own evaluation of evidence for a reasonable evaluation
by the Legislative Branch. Rostker, 453 U.S. at 68. As the First Circuit recently
explained in upholding the statute against the same kind of facial constitutional
challenge at issue in this case, the detailed legislative record that Congress
assembled in enacting 654 makes plain that Congress concluded, after considered
deliberation, that the Act was necessary to preserve the militarys effectiveness as a
fighting force, 10 U.S.C. 654(a)(15), and thus, to ensure national security. Cook v.
Gates, 528 F.3d 42, 60 (1st Cir. 2008). That conclusion is entitled to judicial
deference.
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2. Rather than defer to Congresss judgment, the district court applied a


heightened form of scrutiny based on this Courts decision in Witt v. Department of Air
Force, 527 F.3d 806 (9th Cir. 2008). In doing so, the district court conflated as-applied
and facial constitutional analysis. Log Cabin Republicans claims that the Act is
facially unconstitutional, and [a] plaintiff can only succeed in a facial challenge by
establish[ing] that no set of circumstances exists under which the Act would be
valid, i.e., that the law is unconstitutional in all of its applications, Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)). In contrast, an as-applied challenge
involves showing that the statute has been misapplied to the particular plaintiff.
Witt refused to defer to Congresss enactment based on the claim that the
statute was unconstitutionally applied to the plaintiff in that case. See 527 F.3d at 81920 & n.9. In so holding, Witt overruled in part the Courts prior decision in Beller v.
Middendorf, 632 F.2d 788 (9th Cir. 1980) (Kennedy, J.). In Beller, the Court upheld
prior, more restrictive DOD regulations respecting gay and lesbian servicemembers,
even assuming, without deciding, that heightened scrutiny applied to such
restrictions. Witt disapproved Beller insofar as the Court in that case refused to
engage in as-applied individualized determinations because of the relative
impracticality at th[at] time of achieving the Governments goals by regulations which
turn more precisely on the facts of an individual case. Id. at 820 (quoting Beller, 632
10

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F.2d at 810). Witt did not, however, question Bellers holding that the regulations at
issue on their face satisfied heightened scrutiny in light of the importance of the
government interests [they] furthered and the great deference owed to military
judgments in this context. Beller, 632 F.2d at 810. Witt remanded for the district
court to determine whether the statute had been validly applied to the plaintiff. Id. at
821. Such a remand makes no sense if the Act is unconstitutional on its face. The
district courts decision is thus inconsistent with controlling precedent, as well as with
numerous appellate decisions upholding various applications of the statute.2
3. The district courts conclusion that the statute violates the First Amendment
likewise should be reversed. This Court has held that 654 does not violate the First
Amendment because it provides for discharge for . . . conduct and not for speech.
Holmes v. Cal. Army Natl Guard, 124 F.3d 1126, 1136 (9th Cir. 1997); see also Philips v.
Perry, 106 F.3d 1420, 1429-30 (9th Cir. 1997). As this Court reasoned in Philips and
Holmes, contrary to the district courts conclusion, Op. at 79-80, the statute is not a
content-based regulation of speech. Rather, in the statute Congress created a
rebuttable presumption that a servicemember may be discharged from military service

See Holmes v. Cal. Army Natl Guard, 124 F.3d 1126 (9th Cir. 1997); Philips v.
Perry, 106 F.3d 1420 (9th Cir. 1997); Cook v. Gates, 528 F.3d 42 (1st Cir. 2008); Able v.
United States, 155 F.3d 628, 631-36 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256,
260-62 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 927-31, 934 (4th Cir. 1996) (en
banc); see also Steffan v. Perry, 41 F.3d 677, 692 (D.C. Cir. 1994) (en banc) (upholding
prior regulations).
11

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because he or she is likely to engage in conduct proscribed by the statute. See 10


U.S.C. 654(b)(2). Even under constitutional principles applicable outside the military
context, [t]he First Amendment . . . does not prohibit the evidentiary use of speech
to establish . . . motive or intent. Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). A
regulation that uses speech in this way is content-neutral because it is justified without
reference to content, see Hill v. Colorado, 530 U.S. 703, 719-20 (2000), and that is what
the statute does here. See Philips, 106 F.3d at 1430; Holmes, 124 F.3d at 1136.
The district court suggested that the statute might sweep more broadly, Op. at
77, and stated that the statute could, for example, prevent servicemembers from
discussing their personal lives or comfortably socializing off duty, Op. at 82. But
even if the statute were applied to such speech, such hypothetical applications would
render a content-neutral statute unconstitutional under the First Amendment only if
the statute were overbroad. See, e.g., United States v. Williams, 128 S. Ct. 1830, 1838
(2008). The district court did not invoke the overbreadth doctrine, and the statute
does not infringe on protected speech to a substantial degree relative to the
statutes plainly legitimate sweep. Williams, 128 S. Ct. at 1838.
C. Finally, even though this case is not a class action, the district court erred in
awarding what is in essence classwide relief enjoining application of the statute to
any member of the military anywhere in the world in this case brought by a single
organizational plaintiff purporting to advance the interests of two individuals.
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Injunctive relief is an extraordinary remedy and should be no more burdensome to


the defendant than necessary to provide complete relief to the plaintiffs. Califano v.
Yamasaki, 442 U.S. 682, 702 (1979); see also Monsanto Co. v. Geertson Seed Farms, 130 S.
Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs do not
represent a class, so they could not seek to enjoin such an order on the ground that it
might cause harm to other parties); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)
(noting that neither declaratory nor injunctive relief can directly interfere with
enforcement of contested statutes or ordinances except with respect to the particular
federal plaintiffs); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (A federal court
. . . may not attempt to determine the rights of parties not before the court.); Natl
Ctr. for Immigration Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984). The Supreme
Court acted in accordance with this principle by staying an indistinguishable
militarywide injunction entered by a district court in a facial constitutional challenge to
the prior, more restrictive military regulations regarding gays and lesbians. See Dept of
Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of
an injunction that grant[ed] relief to persons other than [the named plaintiff]). This
Court subsequently reversed the district courts decision to enter a militarywide
injunction because the plaintiff was challenging his own specific discharge, see Meinhold
v. Dept of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), and there is no reason for a
different result here.
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The district courts worldwide injunction also inappropriately interferes with the
development of the law in other circuits. The Supreme Court has made clear that the
Government is not in a position identical to that of a private litigant, both because of
the geographical breadth of government litigation and also, most importantly, the
nature of the issues the Government litigates. United States v. Mendoza, 464 U.S. 154,
159 (1984). This Court has held, moreover, that [p]rinciples of comity prevent a
district court from issuing an injunction that would cause substantial conflict with the
established judicial pronouncements of a sister circuit. United States v. AMC Entmt,
Inc., 549 F.3d 760, 773 (9th Cir. 2008).3 If the district courts injunction is not stayed,
it effectively would overrule the decisions of other circuits that have upheld 654, and
preclude consideration of similar issues by other courts. See Va. Society for Human Life,
Inc. v. Fed. Election Commn, 263 F.3d 379, 394 (4th Cir. 2001) (relying on Mendoza to
limit an injunction in a facial constitutional challenge to a Federal Election
Commission regulation).
The district court recognized that its injunction would prevent the government
from defending the constitutionality of the statute, Inj. Order 9 (Attachment D), but
contended that these principles were inapplicable because Log Cabin challenged the
statute on its face rather than as applied, id. at 4, 9. The district court cited no

Although the government advanced a different view in AMC, the decision


remains binding law.
14

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authority for the proposition that the plaintiffs legal theory changes the permissible
scope of the relief and that proposition is not correct. See, e.g., Va. Society, 263 F.3d at
394 (narrowing nationwide injunction to the plaintiff in facial constitutional challenge);
Zepeda, 753 F.2d at 727 (same); Natl Ctr. for Immigration Rights, 743 F.2d at 1371-72
(same). A criminal defendant, for example, who successfully claims that the statute he
is being prosecuted under is facially unconstitutional gets his conviction reversed not
an order preventing the government from prosecuting anyone under the statute.
Contrary to the district courts apparent view, Inj. Order at 4-5, this is not a case in
which granting relief to nonparties is necessary to afford the plaintiff complete relief.
See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (upholding an injunction
extending relief to nonparties because the injunction could not be tailored to apply
only to the parties). Here assuming (contrary to our submission) that some form of
injunction was permissible the injunction should have been limited to any
individuals that Log Cabin properly represented.
II.

The Balance Of Harms Warrants A Stay Pending Appeal


The balance of harms also favors a stay pending appeal even apart from the

legal flaws in the district courts worldwide injunction.


1. Given the presumptive constitutional validity of an Act of Congress, the
courts invalidation of a statute itself causes the government the kind of irreparable
injury that is routinely recognized as a basis for a stay pending appeal. See Coalition for
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Economic Equality v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (it is clear that a state
suffers irreparable injury whenever an enactment of its people or their representatives
is enjoined); New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers); see also Walters v. Natl Assn of Radiation Survivors, 468 U.S.
1323, 1324 (1984) (Rehnquist, J., in chambers). Because of this well-recognized harm,
in virtually all cases in which a single district judge declares an Act of Congress
unconstitutional, courts appropriately grant a stay if requested to do so by the
government. See Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in
chambers). Because an Act of Congress is deemed to be in itself a declaration of
public interest and policy which should be persuasive, Virginian Ry. Co. v. Sys. Fedn
No. 40, 300 U.S. 515, 552 (1937), ending Dont Ask, Dont Tell in this manner is
itself irreparable harm. In denying the government a stay, the district court
acknowledged these authorities, Stay Order at 5, 6, but did not explain why they are
inapplicable.
2. A stay is also appropriate because the district courts decision is a courtordered precipitous change in the militarys longstanding policy respecting gays and
lesbians, which has been mandated by Act of Congress for more than 16 years. That
injunction operates imminently and directly on all government personnel throughout
the world; the court did not simply review and set aside final decisions rendered in
military proceedings. The sweeping injunction therefore constitutes an extraordinary
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and unwarranted intrusion into military affairs. See Councilman, 420 U.S. at 756-58.
Moreover, the injunction would short-circuit the comprehensive Defense
Department review process that is nearing completion. The Department of Defense
Comprehensive Review Working Group, established by the Secretary of Defense in
March 2010, is currently undertaking a comprehensive study of the issues implicated
by a repeal of 654. Decl. of Clifford L. Stanley, Ex. C (Attachment E). That process
is nearing completion and is based on the views of the President, the Secretary of
Defense, and the Chairman of the Joint Chiefs of Staff, all of whom support repeal of
the law, and have concluded that repeal should not occur before a thorough and
deliberate assessment of how best to accomplish a successful transition in policy. See
Stanley Decl. 9-10, 12. Congressional proposals to repeal the statute also have
recognized the need for careful planning. Id. 13. Proposed bills to repeal 654 have
provided that repeal would not take place until after the Department of Defense has
prepared the necessary policies and regulations to implement repeal. Id. The Court
should defer to the considered judgment of Congress and the most senior leaders of
the military that a repeal of 654 and its implementing regulations should be done in
an orderly manner to be successful, rather than result from an immediate courtordered cessation of the statutory policy. See Orloff v. Willoughby, 345 U.S. 83, 93
(1953) ([J]udges are not given the task of running the Army.); Gilligan v. Morgan, 413
U.S. 1, 10 (1973).
17

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The Working Group has visited numerous military installations across the
country and overseas, where it has interacted with tens of thousands of
servicemembers on this issue. It has also conducted an extensive, professionally
developed survey that was distributed to a representative sample of approximately
400,000 servicemembers. Stanley Decl. 15. The Working Groups review will result
in recommended changes to Department regulations, policies, and guidance that
would be necessary to implement an orderly repeal of the statute. Id. 17. The
Working Group is also developing tools for leadership to educate and train the force
a vital element of a successful repeal. Id. 18. While it is not presently known, prior
to that reviews completion, how quickly an efficient, orderly implementation of repeal
will take, proper implementation of Dont Ask, Dont Tells repeal cannot occur
overnight.
Section 654 implicates dozens of Department and Service policies and
regulations that cover such disparate issues as benefits, re-accession, military equal
opportunity, anti-harassment, and others. Id. 26. Amending these regulations would
typically take several months, because of the need to notify and seek input from all
affected to ensure that changes do not inadvertently result in unanticipated negative
effects on the force. Id. Properly implementing any change in statutory policy would
thus be a massive undertaking by the Department and the military. And if the district
courts judgment is reversed on appeal, the Department and the military will have to
18

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make another major policy change creating further disruption and confusion.
Effectively developing proper training and guidance with respect to a change in
policy will take time and effort. Id. 31. The district courts injunction does not
permit sufficient time for such training to occur, especially for commanders and
servicemembers serving in active combat. Id. Implementing an immediate change to
this longstanding statutory policy without providing proper training and guidance
would be disruptive to military commanders and to servicemembers as they carry out
their mission and military responsibilities, especially in active combat. Id.
In denying the government a stay, the district court cited the evidence at trial
show[ing] that 654 harms military readiness and unit cohesion. Stay Order 6; see
also Stay Order at 3. But the harms that warrant a stay here flow from the precipitous,
court-ordered repeal of the statute that the district courts injunction represents. The
district court cited nothing that would warrant second-guessing the considered
judgment of military leaders that any repeal of the statute must proceed in a
comprehensive and orderly manner, Stanley Decl. 9, rather than by judicial decree.
3. The worldwide, categorical injunction entered by the district court
exacerbates the harm that would result without a stay. As noted above, the breadth of
the injunction interferes with litigation in other circuits based on only a single adverse
district court decision. See Mendoza, 464 U.S. at 160. If not stayed, the district courts
injunction effectively overrules the decisions of other circuits that have upheld 654,
19

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and also precludes consideration of similar issues in other courts that have not
addressed the issue, in effect . . . imposing [the district courts] view of the law on all
the other circuits. Va. Society, 263 F.3d at 394.
4. These harms outweigh the harms to any individuals Log Cabin could
properly represent if the district courts sweeping injunction against a duly enacted Act
of Congress is stayed pending appeal. A stay while this case is resolved would simply
suspend[] judicial alteration of the status quo, Nken v. Holder, 129 S. Ct. 1749, 1758
(2009) (quotation marks omitted), that has prevailed in the military since 1993.
Indeed, a stay pending appeal would obviate the confusion and uncertainty that might
be caused by temporary implementation of the district courts injunction, with the
looming possibility that the statutory policy could be reinstated on appeal. Enjoining
the operation of the statute before the appeal is concluded would create tremendous
uncertainty about the status of servicemembers who may reveal their sexual
orientation in reliance on the district courts decision and injunction.
CONCLUSION
For the foregoing reasons, the Court should stay the district courts order
pending resolution of the governments appeal and should grant an immediate
administrative stay pending this Courts decision on the governments motion for a
stay pending appeal.

20

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Respectfully submitted,
TONY WEST
Assistant Attorney General
ANDR BIROTTE JR.
United States Attorney
ANTHONY J. STEINMEYER
(202) 514-3388
AUGUST E. FLENTJE
(202) 514-3309
/s/ Henry Whitaker
HENRY WHITAKER
(202) 514-3180
Attorneys, Appellate Staff
Civil Division, Room 7256
Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530
OCTOBER 2010

21

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing emergency stay motion
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit on October 20, 2010.
I certify as well that on that date I caused a copy of this emergency stay motion
to be served on the following counsel registered to receive electronic service. I also
caused a copy to be served on counsel via electronic mail.
Dan Woods (dwoods@whitecase.com)
(213) 620-7772
Earle Miller (emiller@whitecase.com)
(213) 620-7785
Aaron Kahn (aakahn@whitecase.com)
(213) 620-7751
White & Case LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071-2007
/s/ Henry Whitaker
Henry C. Whitaker

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1
2
3

JS-6

4
5
6
7
8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10
11 LOG CABIN REPUBLICANS, a )
non-profit corporation,
)
12
)
Plaintiff,
)
13
)
v.
)
14
)
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES,
)
SECRETARY OF DEFENSE, in )
16 his official capacity,
)
)
17
Defendants. )
________________________ )
18
)
19
20
21
22
23
24
25
26
27
28

Case No. CV 04-08425-VAP (Ex)


JUDGMENT AND PERMANENT
INJUNCTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


This action was tried by Judge Virginia A. Phillips without a jury on July
13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on
September 9, 2010 (Doc. 232), and an Amended & Final Memorandum
Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010.
For all the reasons set forth therein, the Court:

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(1) DECLARES that the act known as "Don't Ask, Don't Tell"1 infringes

2 the fundamental rights of United States servicemembers and prospective


3 servicemembers and violates (a) the substantive due process rights
4 guaranteed under the Fifth Amendment to the United States Constitution, and
5 (b) the rights to freedom of speech and to petition the Government for redress
6 of grievances guaranteed by the First Amendment to the United States
7 Constitution.
8
9

(2) PERMANENTLY ENJOINS Defendants United States of America

10 and the Secretary of Defense, their agents, servants, officers, employees,


11 and attorneys, and all persons acting in participation or concert with them or
12 under their direction or command, from enforcing or applying the "Don't Ask,
13 Don't Tell" Act and implementing regulations, against any person under their
14 jurisdiction or command;
15
16

(3) ORDERS Defendants United States of America and the Secretary of

17 Defense immediately to suspend and discontinue any investigation, or


18 discharge, separation, or other proceeding, that may have been commenced
19 under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. 654 or its
20 implementing regulations, on or prior to the date of this Judgment.
21
22

(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for

23 attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C.


24 2412; and
25
1

Codified in statute at 10 U.S.C. 654 and implemented by regulations


comprising Department of Defense Directives 1332.14 (1993), 1332.30
27 (1997), and 1304.26 (1993), as modified by Department of Defense
Instructions 1332.14 (2008) (incorporating March 29, 2010 changes) and
28 1332.30 (2008) (incorporating March 29, 2010 changes).
26

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1
2

(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion

3 for costs of suit, to the extent allowed by law.


4
5

IT IS SO ORDERED.

6
7
8 Dated: October 12, 2010

VIRGINIA A. PHILLIPS
United States District Judge

9
10
11
12
13
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. CV 04-08425-VAP (Ex)

Date: October 19, 2010

Title:

LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and


ROBERT M. GATES, SECRETARY OF DEFENSE
===============================================================
PRESENT:
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard
Courtroom Deputy
ATTORNEYS PRESENT FOR
PLAINTIFFS:

None Present
Court Reporter
ATTORNEYS PRESENT FOR
DEFENDANTS:

None
PROCEEDINGS:

None
ORDER DENYING DEFENDANTS' EX PARTE
APPLICATION FOR ENTRY OF AN EMERGENCY STAY (IN
CHAMBERS)

Defendants' Ex Parte Application for the Entry of an Emergency Stay


("Application") (Doc. No. 253), filed October 14, 2010, came before the Court for
hearing on October 18, 2010. Plaintiff filed its opposition ("Opposition") on October
15, 2010. Having considered the papers filed in support of, and in opposition to, the
Application, as well as the arguments advanced by counsel at the hearing, the Court
DENIES the Application for the following reasons as well as those set forth on the
record at the hearing.

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 19, 2010

I. ANALYSIS
The suspension of equitable or injunctive relief ordered by a district court
during the pendency of an appeal is authorized by Federal Rule of Civil Procedure
62(c). A party seeking a stay of an injunction bears the burden of demonstrating
existence of the same elements as one seeking a preliminary injunction: (1)
likelihood of success on the merits; (2) likelihood the proponent will suffer irreparable
harm absent a stay; (3) that issuance of a stay will substantially injure the other
parties interested in the proceeding; and (4) that the stay is in the public interest.
See Nken v. Holder, 556 U.S. ___, 129 S. Ct. 1749, 1760-61 (2009) (citing Winter v.
Natural Res. Def. Council, 555 U.S. ___, ___, 129 S. Ct. 365 (2008) (establishing
standard for preliminary injunction and holding a moving party must show the
existence of all four factors)); Golden Gate Rest. Ass'n v. City & County of San
Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987)). The first two factors "are the most critical." Nken, 129 S. Ct. at
1757.
"A stay is not a matter of right, even if irreparable injury might otherwise result,"
and the propriety of issuing a stay depends on the circumstances of the particular
case. Nken, 129 S. Ct. at 1760-61. The decision to grant or deny a stay is
committed to the trial court's sound discretion. Id. at 1761.
Turning to the circumstances present here, the Court first notes Defendants
had an opportunity to, but did not, present any of the evidence or arguments now
advanced before the injunction issued. When the Court issued its Memorandum
Opinion on September 9, 2010, it set out a briefing schedule regarding the form of
the injunction. Although Defendants objected to the issuance of the injunction and its
scope, they provided no evidence regarding the alleged disruption or need to revise
"dozens of policies and regulations," as described in the Declaration of Clifford L.
Stanley ("Stanley Declaration"), Under Secretary of Defense for Personnel and
Readiness. (See Stanley Decl. 22-26, 35-36.)

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 19, 2010

Furthermore, to the extent Defendants now submit evidence in the form of the
Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by
the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell
Act's effect on military readiness and unit cohesion.1
The Court's injunction affects the discharge and separation from service of
members of the armed forces pursuant to the Don't Ask, Don't Tell Act. The
injunction would not impede the Defendants' stated goals of amending policies and
regulations and developing education and training programs. Though the Stanley
Declaration identifies some general categories of regulations housing, benefits, reaccession, military equal opportunity, anti-harassment, standards of conduct, and
rights and obligations of the chaplain corps it fails to identify the specific policies
and regulations or why they must be changed in light of the Court's injunction. The
injunction does not affect benefits, for example, and the Uniform Code of Military
Justice governs harassment issues.
Further, the statements in the Stanley Declaration are vague, and belied by the
evidence at trial that Defendants chose not to rebut. For example, the evidence
presented by Plaintiff regarding housing and the negative effect the Don't Ask, Don't
Tell Act had on military readiness and unit cohesion. So, to the extent Defendants
now argue that stopping discharge under the Act will harm military readiness and unit
cohesion, they had the chance to introduce evidence to that effect at trial.
Defendants did not do so. The evidence they belatedly present now does not meet
their burden to obtain a stay.
Turning to the first factor identified in Nken, Defendants have not demonstrated
a "likelihood" of success on the merits nor have they made a showing that their
appeal presents a "serious legal question." See Winter, 129 S. Ct. at 375 (rejecting
the Ninth Circuit's "possibility" standard); Golden Gate Rest. Ass'n, 512 F.3d at 11151

Defendants also submit as an exhibit the copy of an interview with President


Obama from Rolling Stone. (See Stanley Decl., Ex. A.) This evidence is hearsay
not subject to an exception, including the residual exception for evidence having
"equivalent circumstantial guarantees of trustworthiness." See Fed. R. Evid. 803,
804, 807. Accordingly, the Court has not considered it.
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MINUTE ORDER of October 19, 2010

16 (discussing the standard for "serious legal question"). Defendants' continued


reliance on four out-of-circuit cases holding the Don't Ask, Don't Tell Act
constitutional is misplaced; as the Court has pointed out previously, Able v. United
States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir.
1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc), all predate
the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), which
recognized a fundamental right to "an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct." 539 U.S. at 562. Cases
decided before Lawrence are not relevant to this case because the Court's decision
relies upon the Ninth Circuit's holding in Witt v. Dep't of Air Force, 527 F.3d 806 (9th
Cir. 2008), which adopted the heightened level of scrutiny announced in Lawrence.
See Witt, 527 F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an
intrusion "upon the personal and private lives of homosexuals, in a manner that
implicates the rights identified in Lawrence," and is subject to heightened scrutiny).
Defendants chose not to appeal Witt and accordingly are bound by it.
Defendants also argue they meet the burden here by citing to Cook v. Gates,
528 F.3d 42 (1st Cir. 2008). Cook is distinguishable, however. There, the district
court granted a motion to dismiss, rather than ruling after a trial on the merits, as
here. Furthermore, as discussed more fully in its Memorandum Opinion, the Court
finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a facial
due process challenge to the Don't Ask, Don't Tell Act, the Cook court presented two
"circumstances under which the Act would be valid." See Cook, 528 F.3d at 56
(holding the Act is constitutional on its face because it provides for separation of a
servicemember "who engages in a public homosexual act or who coerces another
person to engage in a homosexual act" (citing United States v. Salerno, 481 U.S.
739, 745 (1987))). Those examples are bases for discharge of any servicemember,
whether the conduct in question is homosexual or heterosexual. (See Mem. Op. at
15-16 (noting that "the Cook decision provide[d] no citation to any provision of the
Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for
discharge under that legislation").) Thus, Defendants have not shown a likelihood of
success on appeal.

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MINUTE ORDER of October 19, 2010

The second Nken factor examines whether Defendants are likely to be


irreparably harmed if a stay is not issued. Defendants argue invalidation of a statute
"irreparably injures the Government and itself constitutes sufficient grounds for a
stay." (Application at 5 (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1997) (Rehnquist, J., in chambers); Coal. for Econ. Equity v. Wilson,
122 F.3d 718, 719 (9th Cir. 1997) (citing New Motor Vehicle in denying emergency
motions for stay of mandate pending petition to the Supreme Court for writ of
certiorari)).) Defendants have not shown, however, a likelihood they will suffer
irreparable harm. As noted above, the injunction requires Defendants to cease
investigating and discharging servicemembers pursuant to the Act. It does not affect
Defendants' ability to revise their policies and regulations nor to develop training and
education programs, the only activities specifically mentioned in the Stanley
Declaration. Furthermore, Defendants merely conclude, without explanation, that
"confusion and uncertainty" will result if the injunction remains in place. Thus,
Defendants have failed to establish they are likely to suffer irreparable injury if a stay
is not granted.
The third Nken factor considers whether the requested stay would substantially
injure the other parties interested in the proceeding. Defendants do not explicitly
address this factor in their Application, instead arguing "the harms to Defendants . . .
outweigh any harm to servicemembers that may result from a stay." (Application at
12.) As Plaintiff correctly points out, the injury to interested parties here is violation
of the constitutional rights of servicemembers to due process and freedom of speech
and to petition the government, rights which were vindicated during the course of the
trial. See Goldie's Bookstore, Inc. v. Superior Court, 739 F.3d 466, 472 (9th Cir.
1984) (noting a presumption of harm where a plaintiff has shown a violation of a
constitutional right). As discussed more fully in the Court's Order Granting
Permanent Injunction on October 12, 2010, Plaintiff established at trial that the Don't
Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental
rights, and there is no adequate remedy at law to prevent the continued violation of
those rights. (See Doc. No. 249 at 3 (citing American-Arab Anti-Discrimination
Comm. v. Reno, 70 F.3d 1045, 1071 (9th Cir. 1995) (holding there is no adequate
remedy at law for "denial of legalization based on a constitutional violation")).) As a
stay would force Defendants to continue violating
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MINUTE ORDER of October 19, 2010

servicemembers' constitutional rights, the third factor strongly weighs against


granting a stay.
Finally, the Court must consider whether a stay would serve the public interest.
See Golden Gate Rest. Ass'n, 512 F.3d at 116 (noting the analysis of where the
public interest lies is a separate and additional consideration from that of irreparable
injury). Defendants argue a stay favors preserving the status quo and would prevent
"confusion and uncertainty." (Application at 12.) Nevertheless, "[m]aintaining the
status quo is not a talisman." Golden Gate Rest. Assn, 512 F.3d at 1116.
Defendants suggest the public interest is identical to Defendants' interest in
defending the constitutionality of its statutes, arguing invalidation of a statute itself
"constitutes sufficient grounds to enter a stay." (Application at 5-6 (citing New Motor
Vehicle Bd., 434 U.S. at 1351; Coal. for Econ. Equity v. Wilson, 122 F.3d at 719).)
The Court's analysis of the public interest is not so narrow, however. As discussed
above, the evidence at trial showed that the Don't Ask, Don't Tell Act harms military
readiness and unit cohesion, and irreparably injures servicemembers by violating
their fundamental rights. The public has an interest in military readiness, unit
cohesion, and the preservation of fundamental constitutional rights. While
Defendants' interests in preventing the status quo and enforcing its laws are
important, these interests are outweighed by the compelling public interest of
safeguarding fundamental constitutional rights. The evidence Defendants submitted
with this Application has not demonstrated otherwise. Thus, Defendants have not
met their burden in showing the public interest here lies in issuing a stay.
II. CONCLUSION
None of the factors the Court weighs in considering whether to enter a stay
favors granting a stay here. Accordingly, the Court DENIES Defendants' Application
for a Stay.
IT IS SO ORDERED.

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1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10
11 LOG CABIN REPUBLICANS, a )
non-profit corporation,
)
12
)
Plaintiff,
)
13
)
v.
)
14
)
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES,
)
SECRETARY OF DEFENSE, in )
16 his official capacity,
)
)
17
Defendants. )
_________________________ )
18
19
20
21
22
23
24
25
26
27
28

Case No. CV 04-08425-VAP (Ex)


AMENDED & FINAL
MEMORANDUM OPINION
[Filed concurrently with Findings of
Fact & Conclusions of Law]

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Plaintiff Log Cabin Republicans attacks the constitutionality of the

2 statute known as the "Don't Ask, Don't Tell" Act ("the Act" or "the Policy"),
3 found at 10 U.S.C. 654, and its implementing regulations.1 Plaintiff's
4 challenge is two-fold: it contends the Act violates its members' rights to
5 substantive due process guaranteed by the Fifth Amendment to the United
6 States Constitution, and its members' rights of freedom of speech,
7 association, and to petition the government, guaranteed by the First
8 Amendment.2
9
10

The Court finds Plaintiff Log Cabin Republicans (sometimes referred to

11 in this Order as "Log Cabin," "LCR," or "Plaintiff"), a non-profit corporation,


12 has established standing to bring and maintain this suit on behalf of its
13 members. Additionally, Log Cabin Republicans has demonstrated the Don't
14 Ask, Don't Tell Act, on its face, violates the constitutional rights of its
15 members. Plaintiff is entitled to the relief sought in its First Amended
16 Complaint: a judicial declaration to that effect and a permanent injunction
17 barring further enforcement of the Act.
18
19
20
21
22

The Act, described in greater detail below, provides that any member
23 of the U.S. Armed Forces who engages in homosexual conduct is subject to
discharge unless the servicemember is able to demonstrate that he or she
24 has no propensity to engage in "homosexual conduct." Under the Act,
homosexual conduct includes sexual acts with persons of the same sex,
25 admissions that one is homosexual or bisexual, and attempts to marry a
person of the same sex.
26
2

The Court dismissed Plaintiff's claim for violation of the Equal


Protection Clause in an Order dated June 9, 2009 ("June 9, 2009, Order").
28 (Doc. No. 83.)
27

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I. PROCEEDINGS

This case was tried to the Court on July 13 through 16 and July 20

3 through 23, 2010. After conclusion of the evidence and closing arguments on
4 July 23, 2010, both sides timely submitted supplemental post-trial briefing on
5 the admissiblility of a pretrial declaration submitted by Log Cabin Republicans
6 member John Doe,3 and the matter stood submitted.
7
8
9

II. STANDING
Plaintiff Log Cabin Republicans is a non-profit corporation founded in

10 1977 and organized under the laws of the District of Columbia. (Trial Exs.
11 109 [Bylaws], 110 [Articles of Incorporation].) Defendants challenge LCR's
12 standing to bring and maintain this action on behalf of its members.
13
14

Plaintiff bears the burden of establishing its standing to invoke federal

15 jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To


16 bring suit on behalf of its members, an association must establish the
17 following: "(a) [at least one of] its members would otherwise have standing to
18 sue in [his or her] own right; (b) the interests it seeks to protect are germane
19 to the organization's purpose; and (c) neither the claim asserted nor the relief
20 requested requires the participation of individual members in the lawsuit."
21 Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). To
22 satisfy the first element of associational standing, a organization must
23 demonstrate constitutional standing as to at least one member of the
24
25

The Court overrules Defendants' objections to Exhibit 38, the April 27,
26 2006 Declaration of John Doe, and considers the statements contained
therein regarding Doe's then-present state of mind for the limited purpose for
27 which they were offered, i.e., Doe's state of mind with respect to whether the
Act chilled his speech and ability to petition the government for a redress of
28 grievances. See Fed. R. Evid. 803(3).
2

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1 organization, as follows: (1) injury in fact; (2) caused by the defendants; (3)
2 which likely will be redressed by a favorable decision by the federal court.
3 Lujan, 504 U.S. at 560-61; see also Elk Grove Unified Sch. Dist. v. Newdow,
4 542 U.S. 1, 12 (2004).
5
6

Turning first to the associational standing requirements, Plaintiff

7 established at trial that the interests it seeks to vindicate in this litigation are
8 germane to LCR's purposes, satisfying the second requirement for
9 associational standing. Plaintiff's mission includes "assist[ing] in the
10 development and enactment of policies affecting the gay and lesbian
11 community . . . by [the] federal government[]. . . and advocat[ing] and
12 support[ing] . . . activities or initiatives which (i) provide equal rights under law
13 to persons who are gay or lesbian, [and] (ii) promote nondiscrimination
14 against or harassment of persons who are gay or lesbian . . . ." (Trial Ex. 109
15 [Mission Statement, attached as Ex. A to Bylaws].) The relief sought here,
16 i.e., the ability of homosexual servicemembers to serve openly in the United
17 States Armed Forces through repeal of the Don't Ask, Don't Tell Act, relates
18 to both aspects of Log Cabin's mission.
19
20

Plaintiff also has satisfied the third requirement of associational

21 standing, "that the suit not demand the participation of individual members."
22 Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401,
23 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only declaratory and
24 injunctive relief in its First Amended Complaint; when "the claims proffered
25 and relief requested do not demand individualized proof on the part of its
26 members," such as when only declaratory and prospective relief are sought,
27 the individual members of an association need not participate directly in the
28
3

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1 litigation. Id.; see also Hunt, 432 U.S. at 343 (citing Warth v. Seldin, 422 U.S.
2 490, 515 (1975)).
3
4

Defendants directed their challenge primarily to the first requirement of

5 associational standing, i.e., whether there exists at least one member of the
6 association who could maintain this suit in his or her own right. According to
7 Defendant, neither of the two members Plaintiff relies upon to confer
8 associational standing on it meets the requirements for that role, because
9 neither was a member of Log Cabin Republicans continuously from the date
10 of the commencement of this action until the date of trial.
11
12

Plaintiff filed this action on October 12, 2004 (Doc. No. 1); after the

13 Court granted Defendants' motion to dismiss, Plaintiff filed a First Amended


14 Complaint on April 28, 2006. (Doc. No. 25.) The Court already has ruled that
15 standing in this case should be examined as of April 28, 2006, the date
16 Plaintiff filed its First Amended Complaint. (See Doc. No. 170 ["May 27,
17 2010, Order"] at 15.) For the reasons discussed below, as of that date at
18 least one of Log Cabin's members, John Nicholson, had standing and could
19 have pursued the action individually. Even if the Court looks to the date the
20 original Complaint was filed as the relevant one for standing purposes,
21 however, Plaintiff still satisfies the associational standing requirements, as
22 Plaintiff proved by a preponderance of the evidence at trial that John Doe
23 was a member in good standing as of October 12, 2004.
24
25
26
27
28
4

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1 A.

John Nicholson's Standing

John Alexander Nicholson, III, enlisted in the United States Army in

3 May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As described in more detail
4 below, he received an honorable discharge on March 22, 2002, pursuant to
5 the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July
6 20, 2010.) Nicholson satisfies all three of the requirements for constitutional
7 standing, i.e., "injury in fact" caused by the defendants (his discharge by
8 Defendants pursuant to the Policy), which is redressable by the relief sought
9 in this lawsuit, as he testified he would rejoin the Army if the policy was no
10 longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.)
11
12

Nicholson first became involved with Log Cabin Republicans in August

13 2005, when he and others embarked on a nationwide speaking tour


14 sponsored by LCR to raise awareness of the movement to repeal the Don't
15 Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.) LCR's
16 national and Georgia state chapter leaders asked Nicholson to join the
17 organization formally after he gave a speech at LCR's national convention on
18 April 28, 2006; he did not pay dues or make a cash contribution at that time,
19 but was told his membership was granted in exchange for his services to the
20 organization. (Trial Tr. 1207:22-1208:25, 1211:25-1212:15, July 21, 2010.)
21 Later he was told his was an honorary membership. (Trial Tr. 1211:10-12,
22 1214:13-15, July 21, 2010.)
23
24

Thus, Nicholson officially joined Log Cabin Republicans on April 28,

25 2006, and has been a member continuously ever since. (Trial Tr. 1208:1126 15, 1214:24-1215:17, July 21, 2010.) He testified credibly that he did not
27 complete a paper membership application form that day because he gave the
28
5

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1 necessary information to an LCR administrative assistant who entered it


2 directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff
3 maintains an electronic database of its membership which lists Nicholson as
4 a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:205 22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered
6 the precise date Log Cabin's Georgia chapter granted him honorary
7 membership because it was the same day he addressed LCR's national
8 convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.)
9
10

The testimony of James Ensley, President of Plaintiff's Georgia chapter

11 since 2006 and a member of LCR's national board of directors since 2008,
12 corroborated Nicholson's testimony regarding the date he became a member
13 of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) Ensley testified that the
14 Georgia chapter conferred honorary membership on Nicholson at the 2006
15 Log Cabin Republicans national convention, in recognition of his
16 "remarkable" efforts on the nationwide speaking tour and on college
17 campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-16,
18 July 13, 2010.) Ensley specifically recalled the date the Georgia chapter
19 conferred honorary membership on Nicholson because Ensley's
20 congressman had arranged a private tour of the White House for him on the
21 morning of April 28, 2006, which was the same day Nicholson addressed the
22 convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to
23 be a candid and credible witness.
24
25

Plaintiff also produced the credible testimony of Terry Hamilton, a 25-

26 year member of Log Cabin Republicans and presently chairman of its


27 national board of directors. (Trial Tr. 33:11-35:22, July 13, 2010.) He verified
28
6

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1 that the organization's membership records reflected Nicholson's membership


2 status since April 28, 2006, and also that Nicholson regularly attended and
3 spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July
4 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a
5 member of the organization since that date. (Trial Tr. 38:8-39:3, July 13,
6 2010.)
7
8

Thus, at the time Nicholson was conferred honorary membership, he

9 satisfied the requirements for membership under section 2.02 of the Log
10 Cabin Republican Bylaws, which states:
11

Honorary and Special Members: The Board of Directors may


establish other criteria for granting an Honorary Membership to Log
12
Cabin Republicans for individuals who have exhibited a unique or
noteworthy contribution to the Mission of the Corporation or a
13
Special Membership to Log Cabin Republicans for individuals
or
entities that have provided assistance to the Corporation.4
14 (Trial Ex. 109.)
15

Accordingly, Log Cabin Republicans has standing through Nicholson,

16 who himself satisfies all the requirements for constitutional standing and has
17 been a member of LCR from the date the First Amended Complaint was filed
18 to the present.
19
20
21

Defendants argue Nicholson's honorary membership, pursuant to


22 section 2.02 of the Bylaws, did not confer membership on him because LCR's
Articles of Incorporation refer only to one class of membership. (See Doc.
23 No. 186 [Defs.' Mem. Cont. Fact & Law] at 3-4.) The Court rejected this
argument in its May 27, 2010, Order, noting "Defendants' argument that Mr.
24 Nicholson's honorary membership is insufficient to confer standing on Plaintiff
fails for two reasons . . . . Defendants have not shown that the bylaw at issue
25 actually conflicts with Plaintiff's articles of incorporation . . . . [, and] [t]he
District of Columbia Nonprofit Corporation Act (the 'Corporation Act') provides
26 that a nonprofit corporation shall designate its membership class or classes
and accompanying qualifications 'in the articles of incorporation or the
bylaws.'
D.C. Code 29-301.12 (emphasis added)." (May 27, 2010, Order at
27
24-25.)
28
7

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The Court rejects Defendants' suggestion that LCR "manufactured" its

2 standing for purposes of this lawsuit. (See Doc. No. 188 [Defs.' Proposed
3 Findings of Fact & Conclusions of Law] at 3.) The only authority Defendants
4 cite on this point is Washington Legal Foundation v. Leavitt, 477 F. Supp. 2d
5 202, 211 (D.D.C. 2007), holding the manufacture of standing "weakens" an
6 association's ability to maintain a lawsuit on behalf of its members. The
7 record before the district court in Washington Legal Foundation revealed
8 facts not present here, however. As that court explained, the Washington
9 Legal Foundation's board of directors explicitly decided to bring suit, and then
10 set about to find and recruit persons who would confer standing on it. By
11 contrast, Martin Meekins, a member of LCR's national board of directors,
12 testified that the initiative for filing this lawsuit came from the rank and file of
13 the organization; Meekins then interviewed members regarding the viability of
14 a lawsuit and to determine if they met the requirements to confer standing on
15 the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:1116 707:12, July 16, 2010.)
17
18

Although not explicitly argued, Defendants' only factual basis for

19 contending that Log Cabin Republicans manufactured standing appears to be


20 the identity of dates on which John Nicholson became an LCR member and
21 the First Amended Complaint was filed. The Court found credible, however,
22 the testimony of the several witnesses who testified about the reason LCR
23 bestowed an honorary membership on Nicholson that day, as explained
24 above.
25
26
27
28
8

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Washington Legal Foundation is, of course, not binding authority on this

2 Court, but to the extent it provides guidance, it only holds that "manufacture"
3 of standing weakens but does not destroy an association's ability to maintain
4 its suit. Furthermore, there is no evidence here that LCR manufactured
5 standing, so Washington Legal Foundation is factually dissimilar.
6
7 B.

John Doe's Standing

For the reasons set forth in its May 27, 2010, Order, the Court looks to

9 the filing date of the First Amended Complaint to determine standing. (See
10 May 27, 2010, Order at 15.) Nevertheless, even accepting Defendants'
11 contention that standing in this case must be established as of October 12,
12 2004, when the original Complaint was filed, Log Cabin Republicans satisfies
13 that requirement through its member John Doe.
14
15

John Doe serves as a lieutenant colonel in the United States Army

16 Reserve. He joined Log Cabin Republicans in early September 2004 by


17 completing an application form (using a pseudonym) and paying annual dues
18 through Martin Meekins, then a member of Plaintiff's national board of
19 directors. Meekins accepted the application form and dues payment from
20 Doe and forwarded them to LCR's national headquarters. Doe arranged to
21 pay his membership dues in this manner because he feared he would be
22 discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if
23 he joined the organization openly, using his true name. (Trial Ex. 38.)
24
25
26
27
28
9

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To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual

2 orientation a secret from his coworkers, his unit, and his military superiors,
3 and he may not communicate the core of his emotions and identity to others
4 in the same manner as heterosexual members of the military, on pain of
5 discharge from the Army. (Doc. No. 212 ["July 6, 2010, Order"] at 16; Trial
6 Ex. 38.)
7
8

The Court ruled in its May 27, 2010, Order that Plaintiff raised a triable

9 issue of material fact as to imminent harm related to Doe. (May 27, 2010,
10 Order at 16-19.) The Court now finds that Doe has established the three
11 elements of constitutional standing: he faces a concrete injury caused by
12 Defendants discharge from the Army Reserve which is likely, not
13 speculative, in nature, given the mandatory language of the Don't Ask, Don't
14 Tell Act, see 10 U.S.C. 654 (b)(2), and which would be redressed by a
15 favorable decision by the Court in this action.
16
17 C.

Continuity of Standing

18

Defendants contended for the first time in their closing argument that

19 Plaintiff lacks standing because it had not proven at trial that either of the
20 individual members on whom it relies to confer associational standing upon it
21 had been a member of the organization continuously from the initiation of the
22 action onwards.
23
24

Insofar as LCR relies on Nicholson's membership to confer

25 associational standing upon the organization, Defendants' argument fails.


26 Nicholson's membership in Log Cabin Republicans has been uninterrupted
27 and continuous since April 28, 2006, the date Plaintiff's Georgia chapter
28
10

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1 conferred honorary membership upon him and also the date Plaintiff filed its
2 First Amended Complaint. In light of the Court's May 27, 2010, Order, this is
3 sufficient.
4
5

As Plaintiff relies also on Doe's membership to confer associational

6 standing upon it, the Court examines the continuity of standing question as to
7 him as well. Doe paid annual membership dues shortly before this action
8 was filed in October 2004, but LCR did not introduce evidence showing Doe
9 paid dues, or otherwise made a financial contribution, to the organization
10 after 2004. A plaintiff who has established standing must retain his or her
11 "personal stake" in the litigation throughout the proceedings. See Lewis v.
12 Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517
13 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal stake"
14 in the lawsuit, a court loses the ability to grant relief and must dismiss the
15 action on the basis of mootness because the plaintiff no longer satisfies the
16 redressability element of constitutional standing. See, e.g., Arizonans for
17 Official English v. Arizona, 520 U.S. 43, 68-72 (1997) (mootness); Williams,
18 517 F.3d at 1128 (redressability).
19
20

The cases cited above addressing loss of standing do not arise in an

21 associational standing context, however. Whether one regards Plaintiff Log


22 Cabin Republicans or John Doe as the party whose standing is at issue,
23 neither lost a "personal stake" in the litigation when Doe's annual period of
24 membership lapsed.
25
26
27
28
11

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First, there was conflicting evidence regarding the effect of a member's

2 nonpayment of dues. James Ensley testified that when a member failed to


3 renew his or her annual dues payment, the Log Cabin Republicans viewed
4 the member as a "former" or "inactive" member, but the name would not be
5 stricken from LCR's membership rolls or electronic database simply because
6 of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry
7 Hamilton, another member of the national board of directors, testified that a
8 member who failed to renew his membership timely no longer would be
9 considered a member, but his testimony did not contradict Ensley's testimony
10 regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13,
11 2010.)
12
13

Nevertheless, neither Log Cabin Republicans nor Doe lost the

14 necessary personal stake in this litigation merely because Doe did not pay
15 dues after the initial year. Doe still served in the Army Reserve and still was
16 subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a
17 personal stake in the outcome of the case, and his injury his susceptibility
18 to discharge under the Act continued to be redressable by favorable
19 resolution of the lawsuit.
20
21

Nor is this a case where standing has been lost because of a change in

22 circumstances rendering the subject matter of the case moot: the Act has not
23 been repealed and the challenged policy is still in effect; Doe is still serving
24 and subject to discharge under it;5 Nicholson already has been discharged
25
26
5

In fact, Plaintiff agreed to Defendants' request for a stay of this case if


Defendants would suspend discharges under the Policy, but Defendants
28 refused to do so.
27

12

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1 under it and cannot re-enlist as he wishes to do. Finally, the dispute over the
2 constitutionality of the Act has not been resolved.
3
4

Likewise, the redressability aspect of constitutional standing remains

5 alive despite the lapse in Doe's dues-paying membership status. Doe's


6 imminent injury the mandatory nature of his discharge under the policy
7 would be addressed through a favorable ruling in this action.
8
9

Finally, even assuming Defendants were correct that Log Cabin

10 Republicans failed to prove standing through Doe based on the lack of


11 evidence he paid dues after 2005, this would not require a finding that
12 Plaintiff could not maintain its claims. Plaintiff had standing to file suit based
13 on the undisputed evidence of Doe's membership as of October 12, 2004, the
14 date Log Cabin Republicans filed this action. Assuming Doe's membership
15 lapsed a year later, in early September 2005, Plaintiff lacked standing
16 temporarily from that time until April 28, 2006, when Nicholson became a
17 member of Log Cabin Republicans. Courts have recognized that a plaintiff
18 who possesses standing when it brings suit, later loses it, and then regains
19 standing before entry of judgment, may still maintain its claims. See, e.g.,
20 Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed.
21 Cir. 2005) (finding plaintiff that owned patent at outset of litigation, assigned it
22 to subsidiary, then reacquired it before judgment may maintain an
23 infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64, 70,
24 73 (2005). Thus, assuming that Log Cabin Republicans lacked standing at
25 some point between early September 2005 and April 28, 2006, it still may
26 maintain its claims now.
27
28
13

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III. EVIDENCE PRESENTED AT TRIAL

2 A.

Plaintiff's Burden on a Facial Challenge

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court

4 held a plaintiff challenging the validity of a law on its face must establish that
5 "no set of circumstances exists under which the Act would be valid." Id. at
6 745. The defendants in Salerno were detained pending trial under the
7 provisions of the Bail Reform Act; they challenged the Act, on its face,
8 claiming it unconstitutionally violated the Fifth and Eighth Amendments.
9 More recently, in Washington State Grange v. Washington State Republican
10 Party, 552 U.S. 442 (2008), the Supreme Court noted the criticisms leveled at
11 the Salerno standard and recognized an alternative the test as follows: "a
12 facial challenge must fail where the statute has a 'plainly legitimate sweep.'"
13 Id. at 449 (citing Washington v. Glucksberg, 521 U.S. 702, 739-740 & n.7
14 (1997) (Stevens, J., concurring)); see also United States v. Stevens, 559 U.S.
15 ___, ___, 130 S. Ct. 1577, 1587 (2010) (citing Glucksberg and noting the
16 existence of two standards for facial challenges outside the First Amendment
17 context).
18
19

The Court considers the evidence presented at trial in this facial

20 challenge not for the purpose of considering any particular application of the
21 Don't Ask, Don't Tell Act, but rather for the permissible purposes described in
22 Section III(B) below. (See infra Section III(B).) Plaintiff's evidence, as
23 described below, amply illustrates that the Act does not have a "plainly
24 legitimate sweep." Rather, Plaintiff has proven that the Act captures within its
25 overreaching grasp such activities as private correspondence between
26 servicemembers and their family members and friends, and conversations
27 between servicemembers about their daily off-duty activities. Plaintiff also
28
14

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1 has proven that the Act prevents servicemembers from reporting violations of
2 military ethical and conduct codes, even in outrageous instances, for fear of
3 retaliatory discharge. All of these examples, as well as others contained in
4 the evidence described below, reveal that Plaintiff has met its burden of
5 showing that the Act does not have a "plainly legitimate sweep."
6
7

Finally, the Court notes Defendants' reliance on Salerno and its

8 progeny, particularly Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), in urging the
9 Court to reject Log Cabin's facial challenge. (Defs.' Mem. Cont. Fact & Law at
10 5; Trial Tr. 1670:14-21-1671:23, 1684:12-14, July 23, 2010.) In Cook, the
11 First Circuit reasoned a facial challenge the Don't Ask, Don't Tell Act failed
12 because Lawrence "made abundantly clear that there are many types of
13 sexual activity that are beyond the reach of that opinion," and "the Act
14 includes such other types of sexual activity" because it "provides for the
15 [discharge] of a service person who engages in a public homosexual act or
16 who coerces another person to engage in a homosexual act." 528 F.3d at 56
17 (citing Lawrence, 539 U.S. at 578).
18
19

The Court is not bound to follow this out-of-Circuit authority, and in any

20 event finds the logic of Cook unpersuasive. First, Cook employed the
21 formulation from Salerno rather than the Supreme Court's more recent
22 articulation of the test for facial challenges set forth in Washington State
23 Grange. Furthermore, the examples the Cook court cited as grounds for
24 discharge "under the Act" actually are bases for discharge of any
25 servicemember, whether the conduct in question is homosexual or
26 heterosexual. In fact, the Cook decision provides no citation to any provision
27
28
15

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1 of the Don't Ask, Don't Tell Act specifically listing either of its examples as
2 grounds for discharge under that legislation.
3
4 B.

Evidence Properly Considered on a Facial Challenge

Defendants asserted relevance (and often other) objections to nearly

6 every exhibit Plaintiff sought to introduce into evidence during trial, as well as
7 to nearly all the testimonial evidence offered. According to Defendants,
8 because Plaintiff challenges the constitutionality of the statute on its face,
9 rather than challenging its application, the only evidence the Court should
10 indeed may consider, is the statute itself and the bare legislative history;
11 thus, according to Defendants, all other evidence is irrelevant.6
12
13

Defendants further contend that while examining the legislative record,

14 the Court must not pay heed to any illegitimate motivations on the part of the
15 enacting lawmakers. Defendants cite several cases as authority for these
16 assertions, beginning with United States v. O'Brien, 391 U.S. 367 (1968). In
17 O'Brien, the government charged and convicted the defendant for burning his
18 draft card; the defendant contended the law under which he was prosecuted
19 was unconstitutional because Congress enacted it for the unlawful purpose of
20 suppressing speech. Id. at 383. The Supreme Court rejected this argument,
21 holding "under settled principles the purpose of Congress, as O'Brien uses
22 that term, is not a basis for declaring this legislation unconstitutional. It is a
23 familiar principle of constitutional law that this Court will not strike down an
24
25
26

Defendants maintained this position in their pretrial submissions as


well.
(See
Defs.' Mem. Cont. Fact & Law at 9-10 ("the only appropriate
27
material to consider with respect to plaintiff's due process claim is the statute
28 and its findings, as well as the statute's legislative history . . . .").)
16

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1 otherwise constitutional statute on the basis of an alleged illicit legislative


2 motive." Id.
3
4

In part, the O'Brien Court founded its reasoning on the difficulty of

5 discerning a unified legislative "motive" underlying any given enactment:


6 "What motivates one legislator to make a speech about a statute is not
7 necessarily what motivates scores of others to enact it . . . ." Id. at 384.
8 Thus, O'Brien instructs that when "a statute . . . is, under well-settled criteria,
9 constitutional on its face," a court should not void the law based on
10 statements by individual legislators. Id.
11
12

O'Brien does not stand for the proposition urged by Defendants,

13 however, that when deciding whether a challenged law "is, under well-settled
14 criteria, constitutional on its face," this Court should limit itself to examining
15 only the statute's legislative history. In fact, in the O'Brien decision the
16 Supreme Court specifically pointed to two cases, Grosjean v. American Press
17 Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot, 364 U.S. 339 (1960),
18 noting that they "stand, not for the proposition that legislative motive is a
19 proper basis for declaring a statute unconstitutional, but that the inevitable
20 effect of a statute on its face may render it unconstitutional." O'Brien, 391
21 U.S. at 394 (emphasis added). In both Grosjean and Gomillion, the Court
22 noted, the purpose of the law was irrelevant "because [of] the inevitable effect
23 the necessary scope and operation." Id. at 385 (citations omitted).
24 Therefore, under these authorities, the court may admit and examine
25 evidence to determine the "scope and operation" of a challenged statute;
26 nothing in O'Brien, Grosjean, or Gomillion limits the Court's discretion to
27 consider evidence beyond the legislative history.
28
17

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Defendants also cite City of Las Vegas v. Foley, 747 F.2d 1294 (9th

2 Cir. 1984) as support for their position regarding the inadmissibility of


3 Plaintiff's evidence. Foley arose out of a discovery dispute in a facial
4 constitutional challenge to a Las Vegas zoning ordinance restricting the
5 location of "sexually oriented businesses." Id. at 1296. One of the affected
6 businesses sought to depose city officials regarding their motives in enacting
7 the ordinance; after the city failed in its efforts to obtain a protective order
8 from the District Court, it sought mandamus relief from the Ninth Circuit Court
9 of Appeals. Id.
10
11

The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged

12 illicit legislative motive," and relying on O'Brien, granted the writ, directing the
13 district court to issue a protective order. Id. at 1299. In rejecting the
14 arguments of the party seeking to depose the legislators, the Foley court
15 described the following types of evidence appropriately considered by a court
16 asked to determine a First Amendment challenge:
17
18
19
20
21
22
23
24
25
26
27
28

objective indicators as taken from the face of the statute, the effect
of the statute, comparison to prior law, facts surrounding enactment
of the statute, the stated purpose, and the record of the
proceedings.
Foley, 747 F.2d at 1297 (citations omitted). And finally, the Ninth Circuit
noted, "basic analysis under the First Amendment . . . has not turned on the
motives of the legislators, but on the effect of the regulation." Id. at 1298
(emphasis added).
As Defendants correctly point out, these authorities do hold that
isolated (and in this case, sometimes inflammatory) statements of Senators
and House members during the Don't Ask, Don't Tell Act legislative hearings
should not be considered by the Court. Nevertheless, this does not affect,
18

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1 much less eviscerate, the language in the authorities cited above that
2 Defendants would have the Court ignore, holding that a court deciding a
3 facial challenge can and should consider evidence beyond the legislative
4 history, including evidence regarding the effect of the challenged statute.
5
6

Finally, the case now before the Court includes a facial challenge on

7 substantive due process as well as First Amendment grounds. Therefore, it


8 should be noted that although the authorities discussed above dealt with
9 evidence properly considered by courts in resolving First Amendment facial
10 challenges, their holdings regarding the admissibility of broad categories of
11 testimonial and documentary evidence are echoed in the authorities
12 considering facial challenges on due process grounds. See, e.g., Lawrence
13 v. Texas, 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993);
14 Tucson Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los
15 Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see
16 generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009).
17
18

In Lawrence, petitioners pled nolo contendere to charges under a

19 Texas statute forbidding certain sexual acts between persons of the same
20 sex. They then raised a facial challenge to the statute's constitutionality
21 under the Due Process and Equal Protection clauses of the Fourteenth
22 Amendment. In reaching its decision that the Texas statute indeed was
23 unconstitutional, the Supreme Court's majority reviewed at length the history
24 of the common law prohibiting sodomy or regulating homosexuality, the effect
25 of the statute ("The stigma this criminal statute imposes, moreover, is not
26 trivial . . . . We are advised that if Texas convicted an adult for private
27 consensual homosexual conduct under the statute here in question the
28
19

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1 convicted person would come within the registration laws of at least four
2 States were he or she to be subject to their jurisdiction. . . ."), facts
3 surrounding enactment of the statute, and comparison with other laws.
4 Lawrence, 539 U.S. at 567-79.
5
6

Accordingly, the following discussion of Plaintiff's substantive due

7 process and First Amendment challenges to the Act refers to evidence


8 properly adduced by Log Cabin Republicans and admitted at trial. (As noted
9 above, apart from the Act itself and its legislative history, Defendants
10 admitted no evidence and produced no witnesses.)
11
12 C.

Lay Witness Testimony

13

1.

14

Michael Almy served for thirteen years as a commissioned officer in the

Michael Almy

15 United States Air Force, finishing his service as a major. (Trial Tr. 726:2116 727:11, 728:11-12, July 16, 2010.) Like several other witnesses, he came
17 from a family with a heritage of military service; his father retired as a colonel
18 in the Air Force, and two uncles served as career military officers as well.
19 (Trial Tr. 728:13-22, July 16, 2010.)
20
21

Almy entered active duty in 1993, after obtaining an undergraduate

22 degree in Information Technology while serving in the Army ROTC program.


23 He did not self-identify as a gay man until a few years later. (Trial Tr. 726:2324 727:2, 819:3-12, July 16, 2010.) After that, he testified, the Don't Ask, Don't
25 Tell Act created a natural barrier between himself and his colleagues, as he
26 could not reveal or discuss his personal life with others. (Trial Tr. 820:627 821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to
28
20

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1 socialize when off duty, he could not join them. (Trial Tr. 821:19-822:9, July
2 16, 2010.) All of this may have contributed to creating an aura of suspicion
3 about him, and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)
4
5

Almy's modest demeanor as a witness and matter-of-fact recitation of

6 his service record did not disguise his impressive career in the Air Force.
7 Almy was deployed three times to Saudi Arabia and helped enforce the
8 Southern "no fly" zone over Iraq. Almy set up new communications bases
9 throughout the theaters in Jordan, Saudi Arabia, and Iraq, and was deployed
10 in Saudi Arabia, serving in the Communications Directorate, during the
11 invasion of Iraq in 2003. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16,
12 2010.) In 2003, after returning from his third deployment to Saudi Arabia,
13 Almy was promoted to the rank of major and accepted a position as the Chief
14 of Maintenance for the 606th Air Control Squadron in Spangdahlem,
15 Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy commanded
16 approximately 180 men in the Maintenance Directorate. (Trial Tr. 751:21-22,
17 753:7-11, July 16, 2010.) The three flights7 in the Maintenance Directorate
18 under his command in the 606th Air Control Squadron deployed to Iraq in
19 September 2004. His squadron was responsible for maintaining and
20 controlling the airspace during the invasion of Fallujah, Iraq, and he was
21 responsible for maintaining control over the vast majority of Iraqi airspace,
22 including Kirkuk, as well as maintaining all satellite links and voice and data
23 communications. (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at
24 Balad Air Base, his flight experienced frequent mortar attacks "usually
25 several times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)
26
27

A "flight" is the Air Force term for a group of airmen, comparable to a


28 "unit" in the Army. (Trial Tr. 1335:10-12, July 21, 2010.)
21

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After Almy completed his third deployment to Iraq in January 2005,

2 someone began using the same computer Almy had used while deployed;
3 that person searched Major Almy's private electronic mail message ("e-mail")
4 files without his knowledge or permission. The search included a folder of
5 Major Almy's personal e-mail messages,8 sent to his friends and family
6 members, and read messages, including at least one message to a man
7 discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16,
8 2010.) Almy thought the privacy of his messages was protected; he was very
9 knowledgeable about the military's policy regarding the privacy of e-mail
10 accounts because of his responsibility for information systems. (Trial Tr.
11 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He knew, for example,
12 that according to Air Force policy, e-mail accounts could not be searched
13 unless authorized by proper legal authority or a squadron commander or
14 higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16,
15 2010.)
16
17

Almy only learned his private e-mail had been searched when he

18 returned to Germany and his commanding officer confronted him with the
19 messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit
20 he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At
21 the end of the meeting, Almy was relieved of his duties, and his commanding
22 officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15,
23 July 16, 2010.) Almy had attained one of the highest level security
24
25

According to Major Almy's uncontradicted testimony on this point, the


26 Air Force, "for morale purposes," allows servicemembers deployed in combat
zones to use their government e-mail account for personal e-mail. (Trial Tr.
27 767:3-18, 794:6-15, 796:6-798:4, July 16, 2010.) Almy separated the
personal e-mail he received in his government e-mail account into a folder
28 titled "Friends." (Trial Tr. 769:20-770:15, July 16, 2010.)
22

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1 clearances available for military personnel, "top secret SCI9 clearance;"


2 approximately three months after Almy was relieved of his duties, his security
3 clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.)
4
5

Initially, Almy contested his discharge, as he felt he had not violated the

6 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military
7 he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's
8 understanding was that his discharge was based solely on the e-mail
9 discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.)
10 Accordingly, Almy invoked his right to an administrative hearing and solicited
11 letters of support from those who had worked with him in the Air Force. (Trial
12 Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such
13 a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.) Colonel Paul
14 Trahan, US Army (Ret.), wrote: "My view is that Major Almy has been, and
15 will continue to be an excellent officer. As a former Commander and
16 Inspector General I am well aware of the specifics of the Homosexual
17 Conduct Policy. To my knowledge, Major Almy is not in violation of any of
18 the provisions of the policy. To the contrary, it appears that in prosecuting
19 the case against Major Almy, the USAF may have violated the 'Don't Ask,
20 Don't Tell Policy,' the Electronic Privacy Act and Presidential directives
21 regarding the suspension of security clearances." (Trial Ex. 113 [Character
22 Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].)
23
24

Captain Timothy Higgins wrote about Almy: "Of the four maintenance

25 directorate chiefs I have worked with at the 606th, Major Almy is by far the
26 finest. During his tenure as the [director of logistics], he had maintenance
27
28

"SCI" means "Sensitive Compartmented Information."


23

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1 training at the highest levels seen to date . . . . His troops respected him
2 because they believed he had their best interests at heart." (Trial Ex. 117
3 [Character Reference Letter from Timothy J. Higgins, Capt. USAF].)
4
5

Those who served under Almy wrote equally strong praise: "I can say

6 without reservation that Maj. Almy was the best supervisor I have ever had."
7 (Trial Ex. 120 [Character Reference Letter from Rahsul J. Freeman, 1st Lt.,
8 USAF]); "I was deployed with him during the NATO Exercise CLEAN
9 HUNTER 2004. His leadership was key to our successful completion of the
10 mission. He was well liked and respected by the enlisted personnel in the
11 unit." (Trial Ex. 122 [Character Reference Letter from Leslie D. McElya,
12 SMSgt, USAF (Ret.)].) Almy's commanding officer while his discharge
13 proceedings were pending, Lt. Col. Jeffrey B. Kromer, wrote that he was
14 convinced "the Air Force, its personnel, mission and tradition remains
15 unchanged and unharmed despite his alleged [violations of the Don't Ask,
16 Don't Tell Act]." (Trial Ex. 114.)
17
18

During the course of Almy's discharge proceedings, he was relieved of

19 his command, but remained at Spangdahlem Air Base performing "ad hoc"
20 duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy testified he
21 observed the effect his abrupt removal from his duties had on his former unit:
22 the maintenance, availability, and readiness of the equipment to meet the
23 mission declined. (Trial Tr. 813:19-24, 815:2-18, July 16, 2010.) One officer
24 in the 606th Air Control Squadron observed that the squadron "fell apart"
25 after Major Almy was relieved of his duties, illustrating "how important Maj.
26 Almy was[,] not only to the mission but to his troops." (Trial Ex. 121
27
28
24

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1 [Character Reference Letter from Bryan M. Zollinger, 1st Lt. USAF, 606th Air
2 Control Squadron].)
3
4

After sixteen months, Almy agreed to drop his request for an

5 administrative hearing and to accept an honorable discharge. He testified his


6 reasons for doing so were the risks of a less-than-honorable discharge would
7 have had on his ability to obtain a civilian job and on his retirement benefits,
8 as well as his own exhausted emotional state. (Trial Tr. 798:8-799:13, July
9 16, 2010.) Almy refused to sign his official discharge papers, however,
10 because they listed the reason for discharge as admitted homosexuality.
11 (See Trial Ex. 112; Trial Tr. 800:1-801:20, July 16, 2010.)
12
13

Major Almy received many awards and honors during his service in Air

14 Force. For example, while serving at Tinker Air Force Base in the late 1990s
15 with the Third Combat Communications Group, he was selected as "Officer of
16 the Year," chosen as the top performer among his peers for "exemplary
17 leadership, dedication to the mission, and going above and beyond the call of
18 duty." (Trial Tr. 741:1-11, July 16, 2010.) In 2001, he was one of six Air
19 Force officers chosen to attend the residential training program for officers at
20 the Marine Corps Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005
21 he was awarded the Lt. General Leo Marquez Award, which is given to the
22 Top Air Force Communications Officer serving in Europe. (Trial Tr. 760:823 761:1, July 16, 2010.) Although Almy had been relieved of command, during
24 the pendency of the discharge proceedings, Colonel Goldfein, Almy's wing
25 commander, recommended that Almy be promoted to lieutenant colonel.
26 (Trial Tr. 816:19-818:1, July 16, 2010.)
27
28
25

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Almy testified that if the Act were no longer in effect, he "wouldn't

2 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.) The Court
3 found Almy a credible, candid, and forthright witness.
4
5

2.

Joseph Rocha

Joseph Rocha enlisted in the United States Navy on April 27, 2004, his

7 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like
8 Major Almy's, had a tradition of military service, and the September 11, 2001,
9 attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He
10 wanted to be an officer in the United States Marine Corps, but was not
11 admitted to the Naval Academy directly out of high school; so he hoped to
12 enter Officer Training School through diligence as an enlisted man. (Trial Tr.
13 473:24-474:24, July 15, 2010.)
14
15

After successfully completing basic training, he was promoted to

16 seaman apprentice and received further training in counter-terrorism and


17 force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered
18 for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15,
19 2010.) Once he arrived at the Naval Support base there, Rocha sought out
20 the base's canine handler position because he wanted to specialize in
21 becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.)
22
23

The canine group is a very elite and competitive unit, for which

24 qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha
25 volunteered his off-duty time to earn the qualifications to interview and be
26 tested for a kennel-support assignment; during this time, his interactions with
27 members of the canine unit were limited to one or two handlers on the night
28
26

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1 shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.)


2 Eventually, Rocha took and passed oral and written examinations with Chief
3 Petty Officer Toussaint, the canine group's commanding officer; Rocha met
4 the other qualifications and received an assignment in kennel support. (Trial
5 Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs
6 who were trained to sniff and detect explosives and explosive devices were
7 clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.)
8
9

At the same time, Rocha voluntarily participated in additional physical

10 training exercises with members of the Marine Corps, such as martial arts
11 and combat operations training, in the belief this eventually would improve his
12 chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July
13 15, 2010.) As Rocha aspired to become a Marine officer, after receiving
14 permission through the Marine chain of command, Rocha began "more
15 formal training," eventually earning martial arts, combat, and swimming
16 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)
17
18

Once assigned as kennel support to the canine unit and under Chief

19 Petty Officer Toussaint's command, Rocha was hazed and harassed


20 constantly, to an unconscionable degree and in shocking fashion. When the
21 eighteen-year-old Rocha declined to participate in the unit's practice of
22 visiting prostitutes, he was taunted, asked if he was a "faggot," and told to
23 prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:1824 487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to
25 the others in the unit, and others in the unit referred to him in a similar
26 fashion. (Trial Tr. 486:11-17, July 15, 2010.) When Rocha refused to answer
27 the questions from Toussaint and others in the unit about his sexuality, "it
28
27

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1 became a frenzy," in his words, and his superiors in the canine unit would
2 gather around him, simulate sexual positions, and ask if the U.S. Marine
3 Corps soldiers performed various sexual acts on him. (Trial Tr. 487:204 488:7, 488:8-19, July 15, 2010.) Toussaint ordered all of the other men in the
5 unit to beat Rocha on the latter's nineteenth birthday. (Trial Tr. 485:16-486:3,
6 July 15, 2010.)
7
8

On one occasion that Rocha testified was especially dehumanizing,

9 Toussaint brought a dozen dogs to the Department of Defense Dependent


10 School for a bomb threat training exercise. For the "training exercise" he
11 instructed Rocha to simulate performing oral sex on another enlisted man,
12 Martinez, while Toussaint called out commands about how Rocha should
13 make the scenario appear more "queer." (Trial Tr. 490:13-492:19, July 15,
14 2010.) On another occasion, Toussaint had Rocha leashed like a dog,
15 paraded around the grounds in front of other soldiers, tied to a chair, force16 fed dog food, and left in a dog kennel covered with feces. (Trial Tr. 521:1117 522:1, July 15, 2010.)
18
19

Rocha testified that during this deployment in Bahrain, he never told

20 anyone he was gay because he wanted to comply with the Don't Ask, Don't
21 Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not report any of the
22 mistreatment, although he believed it violated Navy regulations. (Trial Tr.
23 488:20-489:14, July 15, 2010.) Toussaint was his commanding officer to
24 whom he normally would direct such a report and yet was either responsible
25 for the mistreatment or at least present when others engaged in it. (Id.)
26 Rocha's only other choice was to report the misconduct to the Inspector
27 General, which he did not believe was feasible. (Trial Tr. 499:6-16, 533:2-19,
28
28

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1 July 15, 2010.) He was eighteen to nineteen years old at the time, he
2 testified, far from home in Iraq, and all of the perpetrators were senior to him
3 in rank and led in the misconduct by his commanding officer. (Trial Tr.
4 488:20-489:14, July 15, 2010.)
5
6

Eventually Rocha received the assignment he had hoped for, returning

7 to the United States and reporting to Lackland Air Force Base for Military
8 Working Dog Training School. (Trial Tr. 499:20-500:1, July 15, 2010.) Once
9 he completed that training successfully, he returned to Bahrain, where he
10 found that although he was now a military dog handler himself, the same
11 atmosphere prevailed. (Trial Tr. 500:2-6, 16-18, July 15, 2010.) A new petty
12 officer had joined the unit, Petty Officer Wilburn, who declared openly that
13 Rocha was "everything he hated: liberal, [Roman] Catholic, and gay." (Trial
14 Tr. 501:19-502:11, July 15, 2010.) Wilburn trailed Rocha regularly as Rocha
15 tried to carry out his duties, taunting and harassing him. Rocha wrote
16 Wilburn a letter complaining about his conduct; in response, Wilburn left an
17 image of two men engaging in homosexual activity on Rocha's computer with
18 the message that if Rocha complained, "no one will care." (Trial Tr. 502:1219 504:5, July 15, 2010.)
20
21

When the Navy undertook an investigation of Toussaint's command

22 (apparently unmotivated by anything Rocha said or did), Rocha was


23 questioned by a captain but at first refused to answer any questions about
24 the mistreatment he was subjected to because he was afraid the
25 investigation might lead to questions about his sexual orientation and an
26 investigation on that subject. (Trial Tr. 519:16-520:10, July 15, 2010.) So
27 great was Rocha's fear of retaliation that he responded to an investigating
28
29

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1 officer's questions regarding Toussaint only after he was threatened with a


2 court martial if he refused to do so. (Trial Tr. 520:11-15, July 15, 2010.)
3
4

The Navy recognized Rocha with several awards during his service,

5 including the Navy and Marine Corps Achievement Medal for professional
6 achievement that exceeds expectations; the Global War on Terrorism
7 Expeditionary Medal; the National Defense Service Medal; and the Navy
8 Expert Rifleman Medal. (Trial Tr. 517:23-24, 518:7-8, 14-16, 519:4-7, July
9 15, 2010.)
10
11

Rocha received consistently excellent performance evaluations and

12 reviews while he served in the Navy. (See Trial Exs. 144, 145.) In Rocha's
13 review covering February 18, 2005, through July 15, 2005, his supervisors
14 including Toussaint described Rocha as "highly motivated" and a
15 "dedicated, extremely reliable performer who approaches every task with
16 enthusiasm." (Trial Ex. 145; Trial Tr. 494:23-497:13, July 15, 2010.) Rocha's
17 review also stated that he was a "proven performer" who was "highly
18 recommended for advancement." (Trial Tr. 496:16-497:3, July 15, 2010.)
19 Rocha's review recommended him for early promotion, which he received
20 shortly thereafter. (Trial Tr. 497:7-22, July 15, 2010.) Toussaint signed the
21 review as Rocha's senior reviewing military officer. (Trial Tr. 495:19-23,
22 498:4-6, July 15, 2010.)
23
24

Despite the ongoing harassment, Rocha continued to receive

25 exemplary reviews from his supervisors in the canine handling unit, including
26 Chief Petty Officer Toussaint. In a review covering July 16, 2005, through
27 June 16, 2006, then-Petty Officer Rocha is described as an "exceptionally
28
30

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1 outstanding young sailor whose performance, initiative, and immeasurable


2 energy make[ ] him a model Master-At-Arms." (Trial Ex. 144; Trial Tr.
3 504:23-506,19, July 15, 2010.) The review also noted that as a military
4 working dog handler, Rocha "flawlessly inspected [over 300 items of military
5 equipment,] increasing the force protection of NSA Bahrain." (Trial Ex. 144;
6 Trial Tr. 506:10-13, July 15, 2010.) As a result of his performance as a
7 military working dog handler, Rocha received the Navy and Marine Corps
8 Achievement Medal, which is given when an enlisted member exceeds
9 expectations. (Trial Tr. 517:15-518:6 July 15, 2010.)
10
11

In 2006, Rocha was chosen to receive the sole nomination from his

12 congressman for entrance into the U.S. Naval Academy, and Rocha chose to
13 apply to the Naval Academy's preparatory school in the event he was not
14 accepted directly into the Naval Academy.10 (Trial Tr. 506:1-4; 507:4-23, July
15 15, 2010.) As required, he received the nomination of everyone in his chain
16 of command for his entry into the academy and was accepted into the Naval
17 Academy's preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) He
18 described his acceptance as "the most significant moment of [his] life . . . ,
19 [because acceptance into the Naval Academy] was the biggest dream [he'd]
20 ever had." (Trial Tr. 519:8-15, July 15, 2010.)
21
22

Once he enrolled at the preparatory academy, Rocha testified, he had

23 the opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-24,


24 July 15, 2010.) His instructors at the preparatory academy stressed the
25
10

According to Rocha's uncontradicted testimony on this point, the


preparatory academy is designed to give extra academic support before entry
27 into the Naval Academy at Annapolis. (Trial Tr. 507:24-508:4, July 15, 2010.)
Once admitted into the preparatory academy, acceptance into Annapolis is
28 guaranteed. (Trial Tr. 508:5-12, July 15, 2010.)
26

31

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1 nature of the fifteen- to twenty-year commitment expected of the officer


2 candidates. (Id.) Rocha understood he was gay when he enlisted in the
3 Navy at age eighteen, and had complied fully with the Don't Ask, Don't Tell
4 Act during his service, which he had thought would protect him. (Id.) After
5 reflecting on his experiences in the military working dog unit in Bahrain,
6 however, he decided it would be impossible for him to serve under the
7 restraints of the Act and fulfill the commitment expected of him. He then
8 decided to inform the Navy of his sexual orientation. (Trial Tr. 522:12-523:15,
9 July 15, 2010.)
10
11

He first sought permission from Ensign Reingelstein, his immediate

12 superior, to speak to the division commander; Ensign Reingelstein


13 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr.
14 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with his
15 commanding officer, Lt. Bonnieuto, who listened and told him to return to his
16 unit. (Trial Tr. 525:2-19, July 15, 2010.) Eventually, he received an
17 honorable discharge (see Trial Ex. 144), although before accepting Rocha's
18 statement, Lt. Bonnieuto tried to dissuade him, telling him he was being
19 considered for various honors and leadership positions at the preparatory
20 academy, including "battalion leadership." (Trial Tr. 525:21-526:6, 527:1321 528:22, 530:4-25, July 15, 2010.)
22
23

After his discharge, Rocha testified, he was diagnosed with service-

24 related disorders including "post-traumatic stress disorder with major


25 depression." (Trial Tr. 532:11-19, July 15, 2010.) He also testified he would
26 rejoin the Navy if the Don't Ask, Don't Tell Act was repealed. (Trial Tr.
27 533:24-534:2, July 15, 2010.)
28
32

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1
2

Even when recounting the mistreatment endured under Toussaint's

3 command, Rocha testified in an understated and sincere manner. The Court


4 found him a forthright and credible witness.
5
6

3.

Jenny Kopfstein joined the United States Navy in 1995 when she

Jenny Kopfstein

8 entered the U.S. Naval Academy; after graduation and further training, she
9 began serving on the combatant ship USS Shiloh on March 15, 2000.

(Trial

10 Tr. 919:12-14, 926:11-927:3, 927:12-19, July 16, 2010.) She was assigned
11 as the ship's ordnance officer, which means she "was in charge of two
12 weapon systems and a division of [fifteen] sailors." (Trial Tr. 928:22-929:6,
13 July 16, 2010.) When assigned to be the "officer of the deck," she was "in
14 charge of whatever the ship happened to be doing at that time," and
15 coordinating the ship's training exercises of as many as twenty to thirty
16 sailors. (Trial Tr. 929:7-930:4, July 16, 2010.)
17
18

Once assigned to the USS Shiloh, she discovered the Act made it

19 impossible for her to answer candidly her shipmates' everyday questions


20 about such matters as how she spent weekends or leave time; to do so
21 would place her in violation of the Act as she would necessarily be revealing
22 the existence of her lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.)
23 She testified that having to conceal information that typically was shared
24 made her feel as though other officers might distrust her, and that trust is
25 critical, especially in emergencies or crises. (Trial Tr. 957:6-22, July 20,
26 2010.) The Don't Ask, Don't Tell Act's prohibition on gay and lesbian
27 servicemembers revealing their sexual orientation affects trust among
28
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1 shipmates, Kopfstein testified, because it causes people to "hide significant


2 parts of themselves," making it harder to establish the necessary sense of
3 teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.) When she overheard
4 homophobic comments and name-calling by her shipmates, she felt she
5 could neither report them nor confront the offenders, because to do either
6 might call unwanted suspicion upon her. (Trial Tr. 932:18-933:6, July 16,
7 2010.)
8
9

After serving for four months on the USS Shiloh, Kopfstein wrote a

10 letter to Captain Liggett, her commanding officer, stating she was a lesbian;
11 she wanted Captain Liggett to learn this from her rather than hear it from
12 another source. (Trial Tr. 933:7-13, 935:8-23, July 16, 2010; Trial Ex. 140
13 ["Memorandum of Record" from Kopfstein to Liggett dated July 17, 2000].)
14 Captain Liggett did not begin any discharge proceedings after Kopfstein
15 wrote this letter; he told her this was because he did not know her well and
16 thought she might have written the letter not because she was a lesbian, but
17 rather as an attempt to avoid deployment to the Arabian Gulf. (Trial Tr.
18 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.) Kopfstein continued
19 to serve and perform her duties in the same manner she had before writing,
20 but no longer lying or evading her shipmates' questions about her personal
21 life when asked. (Trial Tr. 950:25-951:11, July 20, 2010.)
22
23

When Liggett was leaving the USS Shiloh, to be replaced by Captain

24 Dewes, Captain Liggett not only invited her to the farewell party at his house
25 for the officers and their spouses, but made a point of telling her she was
26 welcome to bring "any guest she chose" with her. (Trial Tr. 955:12-956:8,
27 July 20, 2010.) Kopfstein and her partner attended the party, and Kopfstein
28
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1 testified that Captain Liggett and his wife welcomed them both warmly, as did
2 everyone else present. (Trial Tr. 956:12-25, July 20, 2010.)
3
4

During the abbreviated course of her service, the Navy awarded

5 Kopfstein many honors. For example, she was chosen to steer the USS
6 Shiloh in a ship steering competition; after the USS Shiloh won the
7 competition, she received a personal commendation from the Admiral who
8 also ceremonially "gave her his coin," a rare and prized tribute. (Trial Tr.
9 952:14-953:20, July 20, 2010.) When she returned from overseas
10 deployment after the bombing of the USS Cole off the coast of Yemen in
11 February 2001, the Navy awarded her the Sea Service Deployment Ribbon,
12 another commendation not routinely awarded. (Trial Tr. 949:11-22, 954:5-22,
13 July 20, 2010.) She also was awarded the Naval Expeditionary Medal after
14 the Yemen deployment. (Trial Tr. 955:5-11.)
15
16

On September 11, 2001, Kopfstein was the ordnance officer on the

17 USS Shiloh, in charge of all the weapons on the ship; the captain chose her
18 to be Officer of the Deck as the ship was assigned to defend the West Coast
19 against possible attack in the wake of the attacks on New York and the
20 Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20, 2010.) In October
21 2001, the Navy awarded her the Surface Warfare Officer pin, during a
22 ceremony where her captain took off his pin and pinned it on her chest. (Trial
23 Tr. 968:8-970:1, July 20, 2010.)
24
25

In evaluations completed before and after Kopfstein revealed her

26 sexual orientation, her commanding officers praised her as the USS Shiloh's
27 "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted ship
28
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1 handler," and the manager of "one of the best ship's led and organized
2 divisions," and a "[s]uperb [t]rainer" with a "great talent for teaching other
3 junior officers." (Trial Exs. 138, 139.) Captain W.E. Dewes, who was
4 Kopfstein's commanding officer at the time of her discharge, reported that
5 "[h]er sexual orientation has not disrupted good order and discipline onboard
6 USS SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy" who
7 "played an important role in enhancing the ship[']s strong reputation . . . . She
8 is a trusted Officer of the Deck and best ship handler among her peers.
9 Possesses an instinctive sense of relative motion a natural Seaman." (Trial
10 Ex. 139.) Captain Liggett testified at her discharge proceedings that "it would
11 be a shame for the service to lose her." (Trial Ex. 138.)
12
13

Kopfstein served in the Navy without concealing her sexual orientation

14 for two years and four months before her discharge; during that time, to her
15 knowledge, no one complained about the quality of her work or about being
16 assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8, 989:9-17, July 20,
17 2010.) She did not want to leave the Navy; she enjoyed the company of her
18 shipmates and found her work rewarding. (Trial Tr. 973:16-24, July 20,
19 2010.) Two captains under whom she served came to the Board of Inquiry to
20 testify on her behalf during her discharge proceedings. (Trial Tr. 974:221 977:11, July 20, 2010.) Nevertheless, she was discharged under the Don't
22 Ask, Don't Tell Act. (Id.) Although she appealed the decision to separate her
23 from the Navy, she did not prevail, and on October 31, 2002, she received an
24 honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.) She testified she
25 "absolutely" would rejoin the Navy if the Act is repealed. (Trial Tr. 980:16-22,
26 July 20, 2010.)
27
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The Court found Kopfstein an honest, candid, and believable witness;

2 she testified with modest understatement about her talent and achievements
3 as a Naval Officer and with obvious sincerity about her desire to rejoin to
4 fulfill her original commitment.
5
6

4.

John Nicholson

John Nicholson enlisted in the United States Army in May 2001. (Trial

8 Tr. 1135:6-12, July 20, 2010.) At the time he enlisted, he was fluent in
9 Spanish and "fairly proficient" in Italian and Portuguese. (Trial Tr. 1129:310 1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He underwent testing in
11 the military for foreign language aptitude and qualified for the most difficult
12 level of language training, Category 4. (Trial Tr. 1151:25-1152:3, 1154:4-9,
13 July 20, 2010.) While Nicholson served, and especially while he was in basic
14 training at Fort Benning, Georgia, he sometimes heard other soldiers make
15 sexist or homophobic slurs but was afraid to report these violations of military
16 conduct lest suspicion fall on him or he be retaliated against in a manner that
17 would lead to his discharge under the Act. (Trial Tr. 1138:1-1142:14, 1143:218 24, July 20, 2010.) Nicholson testified that the Don't Ask, Don't Tell Act
19 prevented him from being open and candid with others in his unit; it kept him
20 under a "cloud of fear," caused him to alter who he was, and made him lie
21 about who he was. (Trial Tr. 1194:17-1196:20, July 20, 2010.)
22
23

After completing his basic training, Nicholson was assigned to Fort

24 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr.


25 1143:25-1144:3, July 20, 2010.) While completing his intelligence training at
26 Fort Huachuca, Nicholson requested and received a reassignment to
27 counterintelligence, but remained at Fort Huachuca to complete the requisite
28
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1 counterintelligence training. (Trial Tr. 1148:5-14, July 20, 2010.) Nicholson


2 was waiting to start the next cycle of the counterintelligence course when
3 another servicemember started spreading a rumor that Nicholson was gay.
4 (Trial Tr. 1154:12-18, July 20, 2010.)
5
6

The rumor originated because, while off duty one day in January 2002,

7 Nicholson was writing a letter to a man with whom he had a relationship


8 before joining the Army; Nicholson was writing the letter in Portuguese to
9 prevent other servicemembers from reading it, because it contained
10 references that could reveal Nicholson's sexual orientation. (Trial Tr.
11 1134:10-23, 1161:10-1163:7, July 20, 2010.) Despite Nicholson's
12 precautions, another servicemember caught sight of the letter while chatting
13 with Nicholson. (Id.) After the two had been talking for a few minutes,
14 Nicholson realized she was one of the few persons he knew in the Army who
15 also could also read Portuguese; he gathered up the pages of his letter after
16 he noticed she appeared to be interested in it and reading it. (Id.; Trial Tr.
17 1163:8-18, July 20, 2010.)
18
19

After this incident, members of Nicholson's unit approached him and

20 told him to "be more careful" with regard to disclosure of his sexual
21 orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson sought his
22 platoon sergeant's assistance to stop the spread of the rumor, but instead the
23 sergeant informed the chain of command. (Trial Tr.1166:9-1167:19, 1170:924 15, July 20, 2010.) Nicholson's company commander summoned Nicholson
25 to his office and informed Nicholson that he was initiating discharge
26 proceedings. (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the
27 meeting, the platoon sergeant, who also had been present at the meeting,
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1 ordered Nicholson not to disclose why he was being discharged from the
2 Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.)
3
4

Nicholson testified that after the meeting with his company commander,

5 he was separated from his platoon and placed in a wing of the barracks
6 containing other servicemembers who were being discharged for reasons
7 such as drug use and failing to disclose criminal convictions before
8 enlistment. (Trial Tr. 1184:11-1185:11, July 20, 2010.) Two months later,
9 Nicholson was honorably discharged under the Don't Ask, Don't Tell Act.
10 (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20, 2010.) Nicholson testified
11 he "absolutely" would return to the Army if the Don't Ask, Don't Tell Act were
12 invalidated. (Trial Tr. 1209:4-5, July 21, 2010.)
13
14

As noted above with respect to his testimony on the standing issue, the

15 Court observed Nicholson to be credible and forthright.


16
17

5.

Anthony Loverde

18

Anthony Loverde joined the United States Air Force on February 13,

19 2001, making a six-year commitment and hoping to use his G.I. Bill benefits
20 to obtain a post-graduate degree eventually. (Trial Tr. 1326:19-24, 1327:1621 1328:22, July 21, 2010.) After completing basic training, he received
22 specialized training in electronics and further training in calibrations, after
23 which he qualified at the journeyman level as a PMEL Precision
24 Measurement Equipment Laboratory technician. (Trial Tr. 1329:5-24, July
25 21, 2010.) A PMEL technician calibrates the accuracy, reliability, and
26 traceability of all types of equipment, including precision warfare equipment.
27 (Trial Tr. 1335:13-1336:5, July 21, 2010.)
28
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After completing training in December 2001, Loverde was stationed at

2 the Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.)
3 While at Ramstein, Loverde's flight was responsible for calibrating and
4 ensuring the accuracy and reliability of "various equipment used throughout
5 the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.) Loverde was
6 stationed at Ramstein for approximately three years. (Trial Tr. 1337:5-11,
7 July 21, 2010.)
8
9

After completing his tour at Ramstein Air Base, Loverde was stationed

10 at Edwards Air Force Base in California for approximately two years. (Trial
11 Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards, Loverde
12 was deployed to the Al Udeid Air Base in Qatar for four months, where he
13 supported Operations Iraqi Freedom and Enduring Freedom, as well as
14 missions taking place in the Horn of Africa. (Trial Tr. 1344:8-22, 1345:17-21,
15 July 21, 2010.)
16
17

During his stint in the Air Force, Loverde received frequent promotions;

18 three and one-half years after enlistment, for example, he was promoted to
19 staff sergeant, although the usual length of time to reach that rank is six
20 years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July 21, 2010.) After
21 serving his initial enlistment commitment, he reenlisted and received further
22 training to qualify as a loadmaster. (Trial Tr. 1352:25-1353:15, July 21,
23 2010.) In that capacity, he flew sixty-one combat missions in Iraq, where he
24 received two Air Medals. (Trial Tr. 1357:12-17, 1359:17-25, July 21, 2010.)
25
26

Loverde testified he was raised in a religious family and his church

27 taught that homosexuality was a sin; he had not realized he was gay at the
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1 time he joined the military at age twenty-one. (Trial Tr. 1327:16-17, 1330:132 25, July 21, 2010.) After he became aware of his sexual orientation, he
3 researched the Don't Ask, Don't Tell Act and found the Servicemembers'
4 Legal Defense Network website. (Trial Tr. 1332:13-1333:4, July 21, 2010.)
5 He understood that there were three grounds for discharge under the Act
6 marriage, conduct, and statements. (Trial Tr. 1332:17-1333:4, July 21,
7 2010.) He resolved to comply with the Act and remain in the Air Force.
8
9

The Air Force's core values are "Integrity First, Service Before Self, and

10 Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:20-25, July
11 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act effectively
12 made it impossible to honor the "Integrity First" value of the credo, because
13 on occasion, he felt forced to lie rather than violate the Act: Once, when with
14 other servicemembers in a bar off base in Germany, he refused the sexual
15 advances of a German civilian woman, and his colleagues asked him if he
16 was gay; on another occasion, a subordinate airman asked Loverde about
17 his sexual orientation. (Trial Tr. 1333:5-1334:16, 1349:24-1350:24, July 21,
18 2010.)
19
20

During the time he served as a loadmaster at the Ramstein Air Base in

21 Germany, he also testified that his flight chief often used offensive epithets to
22 refer to gays, as well as racist and sexist slurs. (Trial Tr. 1364:16-1365:25,
23 July 21, 2010.) Although Loverde was disturbed by this, he felt he had no
24 recourse and could not report it lest he draw attention to his sexual
25 orientation. Therefore, during the year he served under this officer, he never
26 made any formal or informal complaint about it. (Id.; Trial Tr. 1366:13-15,
27 July 21, 2010.)
28
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Loverde also testified that during his combat deployments and during

2 his assignments to bases in Germany and California, he faced the difficulty of


3 having to hide his personal life from his colleagues and avoiding
4 conversations with them about everyday life over meals, for example. (Trial
5 Tr. 1360:1-1361:17, July 21, 2010.) He became so skilled at avoiding his
6 fellow airmen that they nicknamed him "vapor" in recognition of his ability to
7 vanish when off duty. (Id.)
8
9

In April 2008, Loverde decided he was no longer willing to conceal his

10 sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time, he was
11 deployed to the Ali Al Saleem Air Base in Kuwait, and he delayed formally
12 telling his commanding officer of his decision until his return to Germany, lest
13 his entire flight unit's mission be disrupted and their return from deployment
14 delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July 21, 2010.) When he
15 returned to Germany from his deployment, Loverde wrote to his first
16 sergeant, stating Loverde wanted to speak to his commanding officer about
17 continuing to serve under the Don't Ask, Don't Tell Act, and that while he
18 wanted to continue serving in the Air Force, he could not do so under that
19 law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.)
20
21

Loverde's superiors recommended the Air Force retain him and

22 commended him for being "nothing less than an outstanding [non23 commissioned officer]" and "a strong asset" to the Air Force. (Trial Exs. 136,
24 137.) They praised him for demonstrating an "exceptional work ethic" and
25 "the highest level of military bearing, honest, and trustworthiness." (Id.) One
26 wrote: "If I ever had the opportunity to build my 'dream team' for work, I would
27
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1 take an entire crew of SSgt. Loverde over most other workers. . . ." (Trial Ex.
2 137.)
3
4

Nevertheless, in July 2008 the Air Force gave Loverde an honorable

5 discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134, 136,
6 137; Trial Tr. 1372:20-1377:20, July 21, 2010.) Loverde testified he would
7 join the Air Force again "without a doubt" if the Don't Ask, Don't Tell Act were
8 repealed. (Trial Tr. 1389:12-18, July 21, 2010.) The Court found Loverde a
9 candid and credible witness.
10
11

6.

12

Steven Vossler's family has a tradition of service in the Army extending

Steven Vossler

13 back to the Spanish-American War, and he enlisted in the United States


14 Army in November 2000, before graduating high school. (Trial Tr. 302:1915 303:5, July 14, 2010.) After basic training, the Army sent him to the Defense
16 Language Institute in Monterey, California, because of his exceptional
17 aptitude for foreign languages. (Trial Tr. 305:5-306:6, July 14, 2010.) He
18 described the close friendships he developed with other students at the
19 Language Institute, how in general it is important to have "good, open
20 relationships" and to discuss one's personal experiences and life with one's
21 colleagues in the military, and how, if one does not, it is perceived as an
22 attempt to distance one's self. (Trial Tr. 316:7-317:17, July 14, 2010.)
23
24
25
26
27
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Vossler met Jerrod Chaplowski, another soldier and Korean language

2 student, at the Monterey Language Institute, and became friends with him.
3 (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually he heard a rumor
4 that Chaplowski was gay. (Trial Tr. 318:22-320:24, July 14, 2010.) Vossler
5 testified that he was initially surprised at this, because "up until that point, [he]
6 still held some very stereotyping beliefs about gays and lesbians," but also
7 testified that as a heterosexual he had no difficulty sharing living quarters with
8 Chaplowski at any of the several Army bases where they were quartered
9 together; in fact, Chaplowski was a considerate roommate and it was always
10 a "great living situation." (Trial Tr. 319:16-17, 321:2-10, 327:1-11, 329:20-25,
11 July 14, 2010.)
12
13

The difficulty Vossler did encounter, he testified, was that when he and

14 Chaplowski were with other servicemembers and the conversation turned to


15 general subjects, he had to be excessively cautious lest he inadvertently cast
16 suspicion on Chaplowski and trigger an investigation under the Don't Ask,
17 Don't Tell Act. (See Trial Tr. 327:12-328:20, July 14, 2010.) For example, if
18 a group of soldiers was discussing their respective social activities over the
19 previous weekend, Vossler had to refer to Chaplowski's dinner companion as
20 "Stephanie" rather than "Steven;" even this small deception pained Vossler
21 as it violated the Army's code of honor. (Id.) Vossler also testified that he
22 observed that the Don't Ask, Don't Tell Act infringed Chaplowski's ability or
23 willingness to enforce the Army's policy banning offensive and discriminatory
24 language. (Trial Tr. 328:22-329:4, July 14, 2010.) Homophobic slurs,
25 epithets, and "humor" were commonplace and made Vossler uncomfortable;
26 he noticed that Chaplowski did not confront those who employed them,
27 although Vossler eventually did at times. (Trial Tr. 329:5-19, July 14, 2010.)
28
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Vossler chose not to reenlist in the active duty Army after his tour of

2 service expired, instead enlisting in the Army National Guard, which he left in
3 June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.) After leaving the
4 military, Vossler became a vocal advocate for the repeal of the Don't Ask,
5 Don't Tell Act because he believes the Act "doesn't seem in line with
6 American values" and he "do[es]n't understand how it's a law in [this] country"
7 because he perceives the Act to be discriminatory. (Trial Tr. 337:14-338:20,
8 July 14, 2010.)
9
10

The Court found Vossler, in common with the other former military men

11 and women who testified at trial, a credible, candid, and compelling witness.
12
13

IV. PLAINTIFF'S CHALLENGE UNDER THE DUE PROCESS CLAUSE

14

Plaintiff claims the Don't Ask, Don't Tell Act violates its members'

15 substantive due process rights, identified in Lawrence as rights associated


16 with the "autonomy of self that includes freedom of thought, belief,
17 expression, and certain intimate conduct." Lawrence, 539 U.S. at 562. (FAC
18 4, 38-43; Doc. No. 190 [Pl.'s Mem. Cont. Fact & Law] at 32-33.)
19
20

After taking office in 1992, President Clinton directed Secretary of

21 Defense Les Aspin to review his department's policy regarding homosexuals


22 serving in the military. Congress undertook its own review and, in 1993,
23 enacted the Don't Ask, Don't Tell Act, which regulated the service of
24 homosexual personnel in the United States military. See National Defense
25 Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat. 1547
26 571, 10 U.S.C. 654.
27
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The Act contains a series of findings that mirror the concerns of then-

2 chairman of the Joint Chiefs of Staff Colin Powell's testimony before


3 Congress: "military life is fundamentally different from civilian life;" "[s]uccess
4 in combat requires military units that are characterized by high morale, good
5 order and discipline, and unit cohesion;" and "the presence in the [A]rmed
6 [F]orces of persons who demonstrate a propensity of intent to engage in
7 homosexual acts would create an unacceptable risk to the high standards of
8 morale, good order and discipline and unit cohesion that are the essence of
9 military capability." See 10 U.S.C. 654(a); cf. S. Rep. No. 103-112 at 283
10 (1993).
11
12

The Court begins by examining the provisions of the Act in more detail.

13
14 A.

The Act

15

The Act is codified at 10 U.S.C. 654; under 654(b), the Secretary of

16 Defense is authorized to formulate the implementing regulations, which are


17 comprised of Department of Defense Directives 1332.14 (1993), 1332.30
18 (1997), and 1304.26 (1993). The Secretary of Defense recently changed the
19 implementing regulations. See Department of Defense Instruction ("DoDI")
20 1332.14 (2008) (incorporating March 29, 2010, changes); DoDI 1332.30
21 (2008) (incorporating March 29, 2010, changes).
22
23

The statute provides that a member of the Armed Forces "shall be

24 separated" from military service under one or more of the following


25 circumstances. First, a servicemember shall be discharged if he or she "has
26 engaged in, attempted to engage in, or solicited another to engage in a
27 homosexual act or acts." 10 U.S.C. 654(b)(1). Second, a servicemember
28
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1 shall be discharged if he or she "has stated that he or she is a homosexual11


2 or bisexual,12 or words to that effect . . . ." 10 U.S.C. 654 (b)(2). Finally, a
3 servicemember shall be discharged if he or she has married or attempted to
4 marry a person "known to be of the same biological sex." 10 U.S.C. 654
5 (b)(3).
6
7

The first two routes to discharge have escape clauses; that is,

8 discharges via either subsection (b)(1) or (b)(2) create a rebuttable


9 presumption which the servicemember may attempt to overcome. Through
10 this exception, a servicemember may rebut the presumption by
11 demonstrating the homosexual conduct which otherwise forms the basis for
12 the discharge under the Act meets five criteria, including inter alia, that it is a
13 "departure" from the servicemember's "usual and customary behavior," is
14 unlikely to recur, and was not accomplished by use of force, coercion or
15 intimidation. 10 U.S.C. 654 (b)(1)(A)-(E).
16
17

An escape route also applies to the second basis for discharge under

18 the Act, the making of a statement that one is a homosexual. It allows the
19 servicemember to rebut the presumption thus created by demonstrating that
20 "he or she is not a person who engages in, attempts to engage, or has a
21 propensity to engage in, or intends to engage in homosexual acts." 10
22 U.S.C. 654 (2).
23
24

11

"The term 'homosexual' means a person, regardless of sex, who


25 engages in, attempts to engage in, has a propensity to engage in, or intends
to engage in homosexual acts, and includes the terms 'gay' and 'lesbian'." 10
26 U.S.C. 654 (f)(1).
12

"The term 'bisexual' means a person who engages in, attempts to


engage in, has a propensity to engage, or intends to engages in homosexual
28 and heterosexual acts." 10 U.S.C. 654 (f)(2).
27

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1 B.

The Standard of Review

As set out more fully in the July 6, 2010, Order, courts employ a

3 heightened standard of review when considering challenges to state actions


4 implicating fundamental rights. (July 6, 2010, Order at 6-9.) After the United
5 States Supreme Court's decision in Lawrence v. Texas, recognizing the
6 fundamental right to "an autonomy of self that includes freedom of thought,
7 belief, expression, and certain intimate conduct," 539 U.S. at 562, the Ninth
8 Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), held
9 the Don't Ask, Don't Tell Act constitutes an intrusion "upon the personal and
10 private lives of homosexuals, in a manner that implicates the rights identified
11 in Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819. Thus,
12 in order for the Don't Ask, Don't Tell Act to survive Plaintiff's constitutional
13 challenge, it must "[1] advance an important governmental interest, [2] the
14 intrusion must significantly further that interest, and [3] the intrusion must be
15 necessary to further that interest." Id. Noting the Act "concerns the
16 management of the military, and judicial deference to . . . congressional
17 exercise of authority is at its apogee" in this context, Witt went on to decide
18 the Act advances an "important governmental interest." 527 F.3d at 821
19 (citations omitted). Accordingly, the Court's focus turns to the second and
20 third prongs.
21
22 C.

The Act Does Not Significantly Further the Government's Interests

23

in Military Readiness or Unit Cohesion

24

1.

25
26

Defendants' Evidence: The Legislative History and the


Statute Itself

Defendants relied solely on the legislative history of the Act and the Act

27 itself in support of their position that the Act passes constitutional muster.
28
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1 (Defs.' Mem. Cont. Fact & Law at 9-10.) Despite Defendants' continued
2 citation to the rational basis standard, the Court has ruled that after Witt, the
3 less deferential standard identified by the Ninth Circuit in that decision
4 applies. (See July 6, 2010, Order at 6-9.) In any event, careful review and
5 consideration of the Act itself and its legislative history reveals that this
6 evidence fails to satisfy Defendants' burden of proving that the Act, with its
7 attendant infringements on the fundamental rights of Plaintiff's members,
8 significantly furthers the Government's interest in military readiness or unit
9 cohesion.
10
11

Defendants did not specifically identify any item of legislative history

12 upon which they are relying in their Memorandum of Contentions of Law and
13 Fact; Defendants only identified specific items of the legislative history during
14 their closing argument at trial. These consist of the following: (1) the
15 Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report; and the
16 testimony of the following witnesses during hearings on the proposed Policy:
17 (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr. William Henderson;
18 and (7) General Colin Powell. Defendants did not include precise citations to
19 any portion of the above-referenced materials to support the constitutionality
20 of the Policy. Below is a summary of the seven items identified as they relate
21 to the Witt standard.
22
23
24

a.

The Crittenden Report (Trial Ex. 4)

The Crittenden Report, formally titled Report of the Board Appointed to

25 Prepare and Submit Recommendations to the Secretary of the Navy for the
26 Revision of Policies, Procedures, and Directives Dealing with Homosexuals,
27 was prepared by that Board in 1957. U.S. Navy Captain S.H. Crittenden
28
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1 chaired the Board, which made detailed recommendations regarding the


2 manner in which discipline against homosexual servicemembers should be
3 imposed, including circumstances in which discharge would be appropriate,
4 and whether discharge should be honorable or otherwise. The Report does
5 not, however, discuss the impact of the presence of homosexuals serving in
6 the Armed Forces on either military readiness or unit cohesion. Instead, the
7 Board assumed, without investigation, that the presence of homosexuals had
8 a negative effect and their exclusion was desirable, without elaborating on
9 the basis for those assumptions; the Report never made any findings
10 concerning the impact of homosexual servicemembers on military operations.
11
12

Accordingly, the Crittenden Report is not evidence that discharge of

13 homosexual servicemembers significantly furthers government interests in


14 military readiness or troop cohesion, or that discharge is necessary to those
15 interests. The Report, in fact, is silent on those interests.
16
17

It did conclude, however, that assumptions that homosexuals present

18 security risks and are unfit for military service are not well-supported by
19 evidence. The Report also generally found homosexuals to be no more or
20 less likely to be qualified to serve in the Armed Forces than heterosexuals
21 according to a number of measures.
22
23
24

b.

The PERSEREC Report (Trial Ex. 5)

The PERSEREC Report, formally titled "Nonconforming Sexual

25 Orientation in the Military and Society," was published in 1988 by the


26 Defense Personnel Security Research and Education Center and authored
27 by Theodore R. Sabin and Kenneth E. Karois. The Report is a broad survey
28
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1 of then-prevailing legal trends regarding treatment of homosexuals, scientific


2 views on homosexuality, and the history of social constructions of
3 "nonconforming" sexual behavior. The Report notes a legal trend toward
4 increasingly recognizing rights of homosexuals, a scientific trend toward
5 recognizing homosexuality both as biologically determined and as a normal
6 condition not necessarily indicating physical or mental disease, and a societal
7 trend towards increasing acceptance of homosexual behavior.
8
9

The PERSEREC Report generally dismisses traditional objections to

10 service by homosexuals in the military as abstract, intangible, and tradition11 bound. The Report cites no evidence that homosexual servicemembers
12 adversely affect military readiness or unit cohesion. The Report discusses
13 unit cohesion, but only to state that empirical research on the effect of
14 homosexual servicemembers on unit cohesion is important and necessary in
15 the future; it points to no existing empirical data. In general, the Report
16 suggests the military begin a transition towards acceptance of homosexual
17 servicemembers.
18
19
20

c.

The Rand Report (Trial Ex. 8)

The Rand Report was prepared by the Rand Corporation's National

21 Defense Research Institute in 1993 at the request of the Office of the


22 Secretary of Defense, Les Aspin. This summary of the Rand Report
23 discusses only "Section 10," entitled "What Is Known about Unit Cohesion
24 and Military Performance," as that is the sole section that bears on the issues
25 presented here.
26
27
28
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Foremost among the Rand Report's conclusions is that no empirical

2 evidence exists demonstrating the impact of an openly homosexual


3 servicemember on the cohesion of any military unit. In its discussion of unit
4 cohesion, the Report distinguished between social cohesion "the emotional
5 bonds of liking and friendship of the members of a unit" (Trial Tr. 872:3-4,
6 July 16, 2010) and task cohesion "a shared commitment to the group's
7 mission or task goals" (Trial Tr. 872:4-6, July 16, 2010); concluded that
8 according to public literature, only task cohesion has an even moderately
9 positive correlation with unit performance; and found after controlling for task
10 cohesion, social cohesion has almost no correlation to unit performance. The
11 Report further opines that an openly homosexual servicemember is more
12 likely to affect only social cohesion, rather than task cohesion, thus having
13 little to no impact on a unit's military performance.
14
15

The Report also concluded that merely assigning openly homosexual

16 servicemembers to a unit can decrease negative feelings towards


17 homosexuals, as fellow unit members tend to hold positive views of other
18 individuals simply because they have been arbitrarily assigned to the same
19 group. Moreover, contact with a group towards which negative feelings are
20 held tends to decrease negative feelings towards that group; Professor Belkin
21 described this phenomenon as "familiarity breeds tolerance." (Trial Tr. 297:922 19, July 14, 2010.) The Report opined that the relationship between negative
23 feelings toward a group would not necessarily translate into disruptive
24 behavior, and that to the extent it did so translate, such behavior could be
25 influenced and controlled by appropriate institutional attitudes and attitudes of
26 unit leaders.
27
28
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1
2

d.

Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255)

Dr. Korb testified before the Senate Armed Services Committee on

3 March 31, 1993 concerning the likely impact on unit cohesion if homosexuals
4 were permitted to serve openly. According to Dr. Korb, there was no
5 empirical research to support the view that homosexual servicemembers
6 would disrupt unit cohesion, and that such evidence could not be obtained
7 without integrating homosexuals into the military. Dr. Korb did concede,
8 however, that in the short run immediately following integration of
9 homosexual servicemembers, some negative effect on unit cohesion was
10 likely, but did not point to any evidence in support of this view. Dr. Korb
11 testified concerning the experiences of foreign militaries and domestic law
12 enforcement agencies that had integrated homosexual servicemembers, and
13 stated that their integration had not adversely affected unit cohesion or
14 performance in those entities.
15
16
17
18

e.

Testimony of Dr. William Henderson (Trial Ex. 344 at


248)

Dr. Henderson testified before the Senate Armed Services Committee

19 on March 31, 1993 concerning the significance of unit cohesion. Dr.


20 Henderson testified that the "human element" is the most important factor in
21 warfare and the only force that motivates a unit to fight rather than flee or
22 take cover. Dr. Henderson testified that creation of a cohesive unit is
23 "significantly influenced by broad cultural values, norms, and characteristics
24 that are the result of a common socialization process and basic agreement
25 among unit members about cultural values." Dr. Henderson testified that two
26 types of unit cohesion exist: horizontal cohesion whereby troops identify with
27 each other, and vertical cohesion whereby troops identify with their leaders.
28
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1 A member of the unit who refuses to conform to the unit's expectations will be
2 isolated, and will undermine the unit's cohesiveness. Based on the views of
3 servicemembers surveyed at that time, approximately 80% of whom opposed
4 integration of homosexuals, homosexual servicemembers were so far outside
5 the acceptable range of shared cultural values that they would not be
6 accepted within military units, and would undermine unit cohesion. Dr.
7 Henderson pointed to no specific empirical study supporting this assertion,
8 however, and measured his testimony by suggesting that a homosexual
9 servicemember who did not disclose his orientation would not disrupt unit
10 cohesion.
11
12
13

f.

Testimony of Dr. David Marlowe (Trial Ex. 344 at 261)

Dr. Marlowe testified before the Senate Armed Services Committee on

14 March 31, 1993, concerning the significance of unit cohesion. He testified


15 similarly to Dr. Henderson in his description of the importance of unit
16 cohesion and of the two types of cohesion, i.e., horizontal and vertical
17 cohesion. While openly acknowledging that in his scientific opinion, there
18 was no empirical data conclusively deciding the question, he opined that
19 openly serving homosexuals could undermine unit cohesion because
20 homosexuality would not be an accepted cultural value among the other
21 members of the unit. Dr. Marlowe qualified his opinion more than Dr.
22 Henderson, however, as Dr. Marlowe also opined that a homosexual
23 servicemember who did not "flaunt" his or her homosexuality, acted as a
24 soldier first and foremost, and did not openly discuss his or her
25 homosexuality would not undermine unit cohesion. Dr. Marlowe foresaw no
26 problem with such a person serving in the Armed Forces.
27
28
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1
2

g.

Testimony of General Colin Powell (Trial Ex. 344 at 707)

General Powell testified before the Senate Armed Services Committee

3 on July 20, 1993. General Powell expressed his general support for the
4 Policy as then proposed by President Clinton. General Powell testified that in
5 his opinion open homosexuality was incompatible with military service and
6 would undermine unit cohesion. General Powell opined that "behavior too far
7 away from the norm undercuts the cohesion of the group." He testified to his
8 belief that military training on tolerance could not overcome the innate
9 prejudices of heterosexual servicemembers. He also testified that the Policy
10 would improve military readiness, but only in that it settled the question of
11 whether or not homosexuals could serve in the military, as the public debate
12 had been a recent distraction to the military. His testimony implied that any
13 final resolution of the issue, regardless of substance, would improve military
14 readiness.
15
16

General Powell testified that despite the official position of

17 nondiscrimination towards homosexuals in the militaries of countries such as


18 Canada, Germany, Israel, and Sweden, practice does not always match
19 policy, and homosexuals are often subjected to discrimination in those
20 militaries. General Powell also rejected attempts to draw parallels between
21 exclusion of homosexuals and historical exclusion of African-Americans,
22 because "skin color is a benign nonbehavioral characteristic, while sexual
23 orientation is perhaps the most profound of human behavioral
24 characteristics."
25
26
27
28
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1
2
3

2.

Plaintiff's Evidence: Reports, Exhibits and Expert and Lay


Testimony

When a governmental enactment encroaches on a fundamental right,

4 the state bears the burden of demonstrating the law's constitutionality. See
5 Witt, 527 F.3d at 819. Although Defendants bear this burden here and, as
6 described above, have relied unsuccessfully only on the statute itself and its
7 legislative history to meet it, Plaintiff introduced evidence demonstrating the
8 Act does not significantly advance the Government's interests in military
9 readiness or unit cohesion. The testimony of former servicemembers
10 provides ample evidence of the Act's effect on the fundamental rights of
11 homosexual members of the United States military. Their testimony also
12 demonstrates that the Act adversely affects the Government's interests in
13 military readiness and unit cohesion. In addition to the testimony from the lay
14 witnesses, Plaintiff introduced other evidence, from witnesses in such
15 specialties as national security policy, military sociology, military history, and
16 social psychology, on whether the Act furthered the Government's interests in
17 military readiness or unit cohesion.
18
19
20
21

a.

Discharge of Qualified Servicemembers Despite Troop


Shortages

From 1993 through 2009, Defendants discharged, pursuant to the Act,

22 over 13,000 men and women serving in the United States Armed Forces.
23 During the years between 1994 through 2001, Defendants discharged at
24 least 7,856 servicemembers under the Act, according to a General
25 Accounting Office Report entitled "Financial Costs and Loss of Critical Skills."
26 (Trial Ex. 9 [2005 Government Accountability Office ("GAO") Report on the
27 "Financial Costs and Loss of Critical Skills Due to [the] DOD's Homosexual
28
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1 Conduct Policy"].) The combined branches of the Armed Forces discharged


2 the following numbers of servicemembers from 1994, the first full year after
3 adoption of the Don't Ask, Don't Tell Act, through the calendar year 2001:
4
5

Number of Servicemembers

Year

1994
1995
1996
1997
1998
1999
2000
2001

Discharged
61613
75714
85815
99716
1,14517
1,04318
1,21319
1,22720

Total discharged 1994 2001

7,856

8
9
10
11
12
13
14
15
16
17
18

13

(Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers


discharged).)
19
20

14

(Trial Ex. 9, at 8.)

21

15

(Id.)

22

16

(Trial Ex. 85, Defs.' Objections and Resp. to Pl's. First Set of Req. for
Admis. ("RFA Resp.") No. 33; Trial Ex. 9, at 8.)

23

17

24

18

(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)

(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42
25 (showing 1,034 servicemembers discharged).)
26
27

19

(Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42
(showing 1,213 servicemembers discharged).)
20

(Trial Ex. 85, RFA Resp. No. 37; Trial Ex. 9, at 8; but see id. at 42
28 (showing 1,227 servicemembers discharged).)
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Starting in 2002, after the U.S. began fighting in Afghanistan, the

2 number of servicemembers discharged under the Act fell sharply, despite the
3 greater raw number of military personnel. As but one example, in 2001,
4 Defendants discharged at least 1,217 servicemembers pursuant to the Don't
5 Ask, Don't Tell Act. In 2002, the number discharged under the Act fell to 885.
6
7

Year

Number of Servicemembers

2002
2003
2004
2005
2006
2007
2008
2009

Discharged
88521
77022
65323
72624
61225
62726
61927
27528

Total discharged 2002-2009

5,167

8
9
10
11
12
13
14
15
16
17
18
19
20
21

21

(Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing
884 servicemembers discharged).)
22

(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing
22 769 servicemembers discharged).)
23

23

(Trial Ex. 85, RFA Resp. No. 40.)

24

24

(Trial Ex. 85, RFA Resp. No. 41.)

25

25

(Trial Ex. 85, RFA Resp. No. 42.)

26

26

(Trial Ex. 85, RFA Resp. No. 43.)

27

27

(Trial Ex. 85, RFA Resp. No. 44.)

28

28

(Trial Ex. 85, RFA Resp. No. 45.)


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The decline in discharges after 2001, according to Dr. Nathaniel Frank,

2 illustrates that during wartime the military retains servicemembers known to


3 be homosexual, despite the Don't Ask, Don't Tell Act requiring discharge,
4 because of the heightened need for troops. (Trial Tr. 196:5-198:6, 257:215 258:6, July 13, 2010.)
6
7
8
9

b.

Discharge of Servicemembers with Critically Needed


Skills and Training

Among those discharged were many with critically needed skills.

10 According to the Government's own data, many of those discharged pursuant


11 to the Act had education, training, or specialization in so-called "critical skills,"
12 including Arabic, Chinese, Farsi, or Korean language fluency; military
13 intelligence; counterterrorism; weapons development; and medicine. (Trial
14 Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering
15 the military's readiness, the discharge of these service men and women had
16 a direct and deleterious effect on this governmental interest.
17
18

For example, relying on the 2005 GAO Report on the "Financial Costs

19 and Loss of Critical Skills Due to [the] DOD's Homosexual Conduct Policy"
20 (Trial Ex. 9), Professor Frank pointed out that through fiscal year 2003,
21 several hundred medical professionals had been discharged pursuant to the
22 Act, yet a 2003 Senate report described a lack of medical care for wounded
23 troops returning from the Arabian Gulf and the resulting negative impact on
24 physical health and troop morale. (Trial Tr. 258:10-259:2, July 15, 2010.)
25 And at the same time that more than one-hundred thousand U.S. troops were
26 deployed to serve in combat in Iraq and Afghanistan, several hundred
27 servicemembers with "critical" language skills, including many qualified as
28
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1 Farsi and Arabic speakers and interpreters, were discharged under the Act.
2 (Trial Ex. 9; Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010.)
3
4
5

c.

The Act's Impact on Military Recruiting

Dr. Lawrence Korb, currently a senior fellow at the Center for American

6 Progress, with an extraordinary background in military preparedness and


7 national security issues,29 including an appointment under President Ronald
8 Reagan as an Assistant Secretary in the Department of Defense, testified
9 before Congress in 2007 about the difficulty the military was experiencing in
10 finding and retaining enough qualified recruits. The crisis in recruiting
11 qualified candidates became particularly severe after combat began in 2001,
12 he testified. (Trial Tr. 1027:24-25, 1028:1-2, July 20, 2010.)
13
14

In general, successful military recruiting efforts come with a very high

15 price tag; Dr. Korb pointed to advertisements various branches of the Armed
16 Forces run during the televised Super Bowl football games as an example of
17 an effective but very costly recruiting tool. Successful recruiting includes not
18 only the costs for sending out military recruiters all around the country, he
19 testified, but also the costs of conducting medical and educational testing on
20 recruits as well as the expense of their basic training. The size of the
21 financial investment needed to prepare a servicemember for an operational
22 unit can reach "millions of dollars," Dr. Korb testified. (Trial Tr. 1028:1823
24

29

In addition to the appointments described above, Dr. Korb is on the


25 faculty at Georgetown University. He also has served as dean of the
Graduate School of Public and International Affairs at the University of
26 Pittsburgh, on the Council for Foreign Relations, as Director of the Center for
Public Policy Education at the Brookings Institution, and as Director for
27 Defense Policy Studies for the American Enterprise Institute. This is only a
partial list of his appointments and service. (Trial Ex. 350.) The Court found
28 Dr. Korb an extraordinarily well-credentialed and powerfully credible witness.
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1 1029:13, July 20, 2010.) Citing a Pentagon study, he opined that for every
2 person discharged after ten years of service, six new servicemembers would
3 need to be recruited to recover the level of experience lost by that discharge.
4 (Trial Tr. 1029:6-23, July 20, 2010.)
5
6

With that background, Dr. Korb opined the Don't Ask, Don't Tell Act

7 negatively affects military recruiting in two ways: its existence discourages


8 those who would otherwise enlist from doing so, and many colleges and
9 universities will not permit military recruiting or Army ROTC programs on
10 campus because the Act's requirements violate their employment
11 nondiscrimination policies. (Trial Tr. 1030:12-21, July 20, 2010.)
12
13

Dr. Korb estimated that the military loses 5,000 men and women

14 annually due to the Don't Ask, Don't Tell Act, if one includes both those who
15 are discharged under it and those who decide not to re-enlist because of it.
16 He conceded, however, that it is very difficult to quantify the number of those
17 who decide not to enlist because of the Policy. (Trial Tr. 1030:1-10, July 20,
18 2010.) Professor Frank also testified on this subject, and based on data from
19 the U.S. Census, the UCLA School of Law Williams Institute, and other
20 sources, opined that if the Act were repealed, the military would gain
21 approximately 40,000 new recruits and approximately 4,000 members would
22 re-enlist every year rather than leave voluntarily. (Trial Tr. 205:6-17, July 13,
23 2010.)
24
25

The 2005 GAO Report estimated that over the ten-year period after

26 enactment of the Act, "it could have cost the [Department of Defense] about
27 $95 million in constant fiscal year 2004 dollars to recruit replacements for
28
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1 service members separated under the policy. Also the Navy, Air Force, and
2 Army estimated that the cost to train replacements for separated service
3 members by occupation was approximately $48.8 million, $16.6 million, and
4 $29.7 million, respectively." (Trial Ex. 85, RFA Resp. No. 21.)
5
d.

6
7

Admission of Lesser Qualified Enlistees

As discussed above, Defendants discharged over 13,000 members of

8 the Armed Forces under the Don't Ask, Don't Tell Act since 1993. (Trial Tr.
9 195:5-8, 203:21-204:5.) Plaintiff introduced evidence that while Defendants
10 continued to enforce the Act by discharging servicemembers under it albeit
11 in dramatically reduced numbers after 2001, they also began to admit more
12 convicted felons and misdemeanants into the Armed Forces, by granting so13 called "moral waivers"30 to the policy against such admissions. (Trial Tr.
14 199:1-17, July 13, 2010; see supra notes 13-28 and accompanying text.)
15
16

In addition to the increased numbers of convicted felons and

17 misdemeanants allowed to join the ranks of the military forces, Professor


18 Frank testified that increased numbers of recruits lacking the required level of
19 education and physical fitness were allowed to enlist because of troop
20 shortages during the years following 2001. (Trial Tr. 199:1-11, July 13,
21 2010.) Log Cabin's evidence went uncontradicted that those who are allowed
22 to enlist under a "moral waiver" are more likely to leave the service because
23 of misconduct and more likely to leave without fulfilling their service
24 commitment than others who joined the Armed Forces. (Trial Tr. 209:2-13,
25
26

30

"Moral waivers" are used to admit recruits who otherwise would not
have
been
eligible for admission because of their criminal records, i.e.,
27
convictions for felonies and serious misdemeanors, or admitted past
28 controlled substance abuse. (Trial Tr. 207:7-208:24, July 13, 2010.)
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1 July 13, 2010.) Dr. Korb testified that eventually the troop shortages after
2 2001 caused the U.S. Armed Forces to lower educational and physical
3 fitness entry standards as well as increase the number of "moral waivers" to
4 such an extent that, in his opinion, it became difficult for the military to carry
5 out its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same time,
6 discharging qualified servicemembers under the Don't Ask, Don't Tell Act
7 simply "does not make sense" in terms of military preparedness because, in
8 his words, the military is "getting rid of those who are qualified to serve and
9 admitting those who aren't." (Trial Tr. 1025:15-20, July 20, 2010.)
10
11
12

e.

Other Effects of the Policy

Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has

13 on military preparedness. He opined that in order for the military to perform


14 its mission successfully, it must mold persons from vastly different
15 backgrounds who join it into a united and task-oriented organization. He
16 described the military as a meritocracy, but testified that the Don't Ask, Don't
17 Tell Act detracts from the merit-based nature of the organization, because
18 discharges under the Act are not based on the servicemember's failure to
19 perform his or her duties properly, or on the effect of the soldier's presence
20 on the unit's morale or cohesion. (Trial Tr. 1031:2-1033:10, July 20, 2010.)
21
22
23
24

f.

Decreased and Delayed Discharge of Suspected


Violators of the Act

LCR also produced evidence demonstrating that Defendants routinely

25 delayed the discharge of servicemembers suspected of violating the Act's


26 provisions until after they had completed their overseas deployments. In
27 other words, if Defendants began an investigation of a servicemember
28
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1 suspected of violating the Act, the investigation would be suspended if the


2 subject received deployment orders; not until he or she returned from combat
3 assuming this occurred, of course would the investigation be completed
4 and the servicemember discharged if found to have violated the Act. Thus,
5 Defendants deployed servicemembers under investigation for violating the
6 Act to combat missions or, if they were already so deployed, delayed the
7 completion of the investigation until the end of the deployment. (Trial Tr.
8 196:5-24, July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11,
9 188:13-190:9, Apr. 16, 2010.)
10
11

This evidence, in particular, directly undermines any contention that the

12 Act furthers the Government's purpose of military readiness, as it shows


13 Defendants continue to deploy gay and lesbian members of the military into
14 combat, waiting until they have returned before resolving the charges arising
15 out of the suspected homosexual conduct. If the warrior's suspected violation
16 of the Act created a threat to military readiness, to unit cohesion, or to any of
17 the other important Government objectives, it follows that Defendants would
18 not deploy him or her to combat before resolving the investigation. It defies
19 logic that the purposes of the Act could be served by suspending the
20 investigation during overseas deployments, only to discharge a
21 servicemember upon his or her return to a non-combat station.
22
23

Taken as a whole, the evidence introduced at trial shows that the effect

24 of the Act has been, not to advance the Government's interests of military
25 readiness and unit cohesion, much less to do so significantly, but to harm
26 that interest. The testimony demonstrated that since its enactment in 1993,
27 the Act has harmed efforts of the all-volunteer military to recruit during
28
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1 wartime. The Act has caused the discharge of servicemembers in


2 occupations identified as "critical" by the military, including medical
3 professionals and Arabic, Korean, and Farsi linguists. At the same time that
4 the Act has caused the discharge of over 13,000 members of the military,
5 including hundreds in critical occupations, the shortage of troops has caused
6 the military to permit enlistment of those who earlier would have been denied
7 entry because of their criminal records, their lack of education, or their lack of
8 physical fitness.
9
10 D.

The Act is Not Necessary to Advance the Government's Interests

11

The Witt court held that to justify the infringement on the fundamental

12 rights identified in Lawrence, a defendant must satisfy both the requirement


13 that the Act "significantly furthers" the Government's interests and the
14 requirement that it is "necessary" to achieve them. To the extent that
15 Defendants have made a distinct argument here that the Act is necessary to
16 achieve the Government's significant interest, they have not met their burden
17 as to this prong of the Witt test, either.
18
19

1.

20

In fact, Defendants have admitted that, far from being necessary to

Defendants' Admissions

21 further significantly the Government's interest in military readiness, the Don't


22 Ask, Don't Tell Act actually undermines that interest. President Obama, the
23 Commander-in-Chief of the Armed Forces, stated on June 29, 2009:
24

"Don't Ask, Don't Tell" doesn't contribute to our national security . .


. preventing patriotic Americans from serving their country weakens
25
our national security . . . . [R]eversing this policy [is] the right thing
to do [and] is essential for our national security.
26 (Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.) President Obama also
27 stated, regarding the Act on October 10, 2009, "We cannot afford to cut from
28
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1 our ranks people with the critical skills we need to fight any more than we can
2 afford for our military's integrity to force those willing to do so into careers
3 encumbered and compromised by having to live a lie." (Trial Ex. 306; Trial
4 Ex. 85, RFA Resp. No. 12.)
5
6

Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed

7 these sentiments through a verified Twitter account, posted to the Joint


8 Chiefs of Staff website: "Stand by what I said [testifying in the U.S. Senate
9 Armed Services Committee on February 2, 2010]: Allowing homosexuals to
10 serve openly is the right thing to do. Comes down to integrity." (Trial Ex.
11 330.)
12
13
14
15

2.

Defendants' Contention that the Act is Necessary to Protect


Unit Cohesion and Privacy

Defendants point to the Act's legislative history and prefatory findings

16 as evidence that the Policy is necessary to protect unit cohesion and


17 heterosexual servicemembers' privacy. In particular, they quote and rely on
18 General Colin Powell's statements in his testimony before Congress in 1993.
19
20

General Powell expressed his qualified support for the continued

21 service of gays and lesbians in the Armed Forces and the narrow nature of
22 his concerns. (Trial Ex. 344 [Policy Concerning Homosexuality in the Armed
23 Forces: Hearings Before the S. Comm. on Armed Servs., 103rd Cong.
24 (statement of General Colin Powell, Chairman, Joint Chiefs of Staff)] at 709).
25 He emphasized his concern that "active military service is not an everyday
26 job in an ordinary workplace . . . . There is often no escape from the military
27 environment for days, weeks and often months on end. We place unique
28
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1 demands and constraints upon our young men and women not the least of
2 which are bathing and sleeping in close quarters." (Id. at 762; 709 ("Our
3 concern has not been about homosexuals seducing heterosexuals or
4 heterosexuals attacking homosexuals . . . .").)
5
6

First, it must be noted that Plaintiff introduced uncontradicted testimony

7 that General Powell has changed his views since 1993 on the necessity of
8 the Policy and agrees with the current Commander-in-Chief that it should be
9 reviewed. (Trial Tr. 221:7-11, July 13, 2010.)
10
11

More importantly, however, Plaintiff produced powerful evidence

12 demonstrating that the Act is not necessary in order to further the


13 governmental interest that General Powell expressed, i.e., unit cohesion and
14 particularly the concern that cohesion might be eroded if openly homosexual
15 servicemembers shared close living quarters with heterosexuals.
16
17

Michael Almy, who during thirteen years of active service lived in

18 dozens of different types of military housing on at least three continents,


19 testified his quarters ranged from a villa in Eskan Village, Saudi Arabia,
20 where he and the others quartered there each had private bedrooms and
21 bathrooms, to a dormitory-type facility at the Prince Sultan Air Base in Saudi
22 Arabia, where at first he had a private room and bath until the troop build-up
23 before the invasion of Iraq led to several men sharing a room, with a private
24 bathroom that was used by only one person at a time, to temporary quarters
25 in a tent at Balad Air Base in Iraq shared by six to eight men who obtained
26 limited privacy by hanging up sheets. Almy testified that in his deployments
27 to Saudi Arabia and Iraq he was never quartered in housing that had open
28
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1 bay showers, nor did he ever see such housing for enlisted members or
2 officers. (Trial Tr. 748:3-750:25, July 16, 2010.) The typical arrangement in
3 Saudi Arabia was for enlisted servicemembers and officers to have the same
4 type of facilities, including bathroom and shower facilities; officers typically
5 did not have to share rooms, and enlisted personnel usually shared a
6 bedroom and bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Almy testified
7 that open bay showers are the exception in military quarters and the only
8 time he actually used one was during basic training in Fort Benning, Georgia,
9 in 1992. (Trial Tr. 759:12-19, July 16, 2010.)
10
11

Similarly, John Nicholson testified that while he was in basic training in

12 Fort Benning, the recruits slept in a large open room with sixty bunk beds and
13 shared a large communal bathroom with toilets in individual stalls and semi14 private showers. (Trial Tr. 1154:25-1155:15, July 20, 2010.) Anthony
15 Loverde testified that only during basic training was he housed in barracks
16 where open bay showers were the only option; he had access to single stall
17 shower facilities even when stationed at Bagram Air Base in Afghanistan and
18 at Balad Air Base in Iraq. (Trial Tr. 1378:3-15, 1385:18-1386:12, July 21,
19 2010.)
20
21

Other servicemembers confirmed this testimony. Stephen Vossler

22 testified regarding his living quarters while he served as an enlisted man in


23 the Army; he shared a "not spacious" bedroom and also a bathroom with a
24 roommate. (Trial Tr. 330:4-11, July 14, 2010.) Although Vossler learned his
25 roommate was gay, Vossler had no problems sharing quarters with him and
26 thought he was a good roommate. (Trial Tr. 329:20-330:21, July 14, 2010.)
27
28
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Professor Aaron Belkin confirmed this evidence in his testimony; his

2 research into military architecture revealed that apart from basic training sites
3 and service academies where there are open showers, servicemembers
4 usually have access to single stall showers. (Trial Tr. 617:21-619:1, July 15,
5 2010.) According to Professor Belkin, "the army, in recent years, has
6 implemented something called the one-plus-one barracks design standard.
7 What that means is that servicemembers are housed in an arrangement
8 where they each have their own bedroom and there is a bathroom between
9 the two bedrooms that they share." (Trial Tr. 618:8-13, July 15, 2010.)
10 Three-fourths of the troops quartered in combat zones in Afghanistan and
11 Iraq had access to single stall showers, according to his research. (Trial Tr.
12 626:3-8, July 15, 2010.)
13
14

Plaintiff's evidence regarding unit cohesion was equally plentiful and

15 persuasive. The testimony of both its lay and expert witnesses revealed that
16 the Act not only is unnecessary to further unit cohesion, but also harms the
17 Government's interest.
18
19

After Michael Almy was relieved of his command abruptly under the

20 Act, he witnessed firsthand what occurred when an unprepared junior officer


21 was forced to take over. He testified that "[t]he maintenance of the
22 equipment, the mission overall, the availability the up time of the
23 equipment, the availability of the equipment to meet the mission suffered"
24 and there was "a huge detrimental effect to the morale" of the troops he
25 commanded after he was relieved of his command. (Trial Tr. 813:21-25, 814:
26 1-6, July 16, 2010.) Almy testified, "Virtually every day on my base on
27 Spangdahlem, I would encounter one of my former troops who wanted me
28
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1 back on the job as their officer and leader." (Trial Tr. 814:2-6, July 16, 2010.)
2 His assessment was confirmed by another officer in the squadron, who wrote
3 that the squadron "fell apart" after Major Almy was relieved of his duties,
4 illustrating "how important Maj. Almy was[,] not only to the mission but to his
5 troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger,
6 1st Lt., USAF, 606th Air Control Squadron].)
7
8

Jenny Kopfstein's commanding officer wrote that she was a "hard

9 working and dedicated junior officer who excelled as an Officer of the Deck"
10 who "played an important role in enhancing the ship's strong reputation."
11 (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and Counseling Record];
12 Trial Tr. 966:14-17.) He specifically noted that "[h]er sexual orientation has
13 not disrupted good order and discipline on board USS SHILOH." (Trial Ex.
14 139; Trial Tr. 966:23-24.) Kopfstein testified that after she stopped
15 concealing her homosexuality while serving on the USS Shiloh, she had
16 many positive responses, and the ability of her fellow crew members to trust
17 her improved, thus aiding the establishment of teamwork. (Trial Tr. 951:1018 11, 979:8-21, 25, 980:1, July 20, 2010.)
19
20

Anthony Loverde's superiors unquestionably felt that his discharge

21 pursuant to the Don't Ask, Don't Tell Act did not further the Government's
22 interest in unit cohesion. In recommending the Air Force retain Loverde, they
23 commended him for being "nothing less than an outstanding [non24 commissioned officer]" and "a strong asset" with "an exceptional work ethic"
25 and "the highest level of military bearing, honesty, and trustworthiness."
26 (Trial Exs. 136 [Letter from Michael Yakowenko, CM Sgt.], 137 Letter from
27 Richard Horn, SM Sgt.].) One wrote: "If I ever had the opportunity to build my
28
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1 'dream team' for work, I would take an entire crew of SSgt. Loverde over
2 most other workers . . . ." (Trial Ex. 137.)
3
4

Finally, Robert MacCoun, Professor of Law and Public Policy at the

5 University of California, Berkeley, and one of the contributors to the 1993


6 Rand Report on the Don't Ask, Don't Tell Act, testified regarding social and
7 task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.)
8 Professor MacCoun holds a Ph.D. in psychology from Michigan State
9 University, was a post-doctoral fellow in psychology and law at Northwestern
10 University, spent seven years as a behavioral scientist at the RAND
11 Corporation,31 and has a distinguished research and publication record.
12 (Trial Tr. 856:16-864:7, July 16, 2010.) The Court found his testimony cogent
13 and persuasive.
14
15

According to Professor MacCoun, the RAND working group concluded

16 that task cohesion was paramount; it was a more important predictor of


17 military performance than social cohesion, and service in the Armed Forces
18 by openly homosexual members was not seen as a serious threat to task
19 cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:21-25, 876:13-21, July
20 16, 2010.) Therefore, the recommendation to Secretary of Defense Les
21 Aspin from the RAND Corporation in the1993 Report was that sexual
22 orientation should not be viewed as germane to service in the military; the
23 1993 Report made various recommendations regarding the implementation
24 of this change. (Trial Ex. 8 [Sexual Orientation and U.S. Military Personnel
25
26
31

The RAND Corporation is a nonpartisan private nonprofit research


corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16,
28 2010.)
27

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1 Policy: Options and Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16,
2 2010.)
3
4

Thus, the evidence at trial demonstrated that the Act does not further

5 significantly the Government's important interests in military readiness or unit


6 cohesion, nor is it necessary to further those interests. Defendants'
7 discharge of homosexual servicemembers pursuant to the Act not only has
8 declined precipitously since the United States began combat in Afghanistan
9 in 2001, but Defendants also delay individual enforcement of the Act while a
10 servicemember is deployed in a combat zone. If the presence of a
11 homosexual soldier in the Armed Forces were a threat to military readiness
12 or unit cohesion, it surely follows that in times of war it would be more urgent,
13 not less, to discharge him or her, and to do so with dispatch. The abrupt and
14 marked decline 50% from 2001 to 2002 and steadily thereafter in
15 Defendants' enforcement of the Act following the onset of combat in
16 Afghanistan and Iraq, and Defendants' practice of delaying investigation and
17 discharge until after combat deployment, demonstrate that the Act is not
18 necessary to further the Government's interest in military readiness.
19
20

In summary, Defendants have failed to satisfy their burden under the

21 Witt standard. They have not shown the Don't Ask, Don't Tell Policy
22 "significantly furthers" the Government's interests nor that it is "necessary" in
23 order to achieve those goals. Plaintiff has relied not just on the admissions
24 described above that the Act does not further military readiness, but also has
25 shown the following:
26
27
28
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! by impeding the efforts to recruit and retain an all-volunteer military

force, the Act contributes to critical troop shortages and thus harms

rather than furthers the Government's interest in military readiness;

4
5

! by causing the discharge of otherwise qualified servicemembers with

critical skills such as Arabic, Chinese, Farsi, and Korean language

fluency; military intelligence; counterterrorism; weapons development;

and medical training, the Act harms rather than furthers the

Government's interest in military readiness;

10
11

! by contributing to the necessity for the Armed Forces to permit

12

enlistment through increased use of the "moral waiver" policy and lower

13

educational and physical fitness standards, the Act harms rather than

14

furthers the Government's interest in military readiness;

15
16

! Defendants' actions in delaying investigations regarding and

17

enforcement of the Act until after a servicemember returns from combat

18

deployment show that the Policy is not necessary to further the

19

Government's interest in military readiness or unit cohesion;

20
21

! by causing the discharge of well-trained and competent

22

servicemembers who are well-respected by their superiors and

23

subordinates, the Act has harmed rather than furthered unit cohesion

24

and morale;

25
26
27
28
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! the Act is not necessary to protect the privacy of servicemembers

because military housing quarters already provide sufficient protection

for this interest.

4
5

The Don't Ask, Don't Tell Act infringes the fundamental rights of United

6 States servicemembers in many ways, some described above. The Act


7 denies homosexuals serving in the Armed Forces the right to enjoy "intimate
8 conduct" in their personal relationships. The Act denies them the right to
9 speak about their loved ones while serving their country in uniform; it
10 punishes them with discharge for writing a personal letter, in a foreign
11 language, to a person of the same sex with whom they shared an intimate
12 relationship before entering military service; it discharges them for including
13 information in a personal communication from which an unauthorized reader
14 might discern their homosexuality. In order to justify the encroachment on
15 these rights, Defendants faced the burden at trial of showing the Don't Ask,
16 Don't Tell Act was necessary to significantly further the Government's
17 important interests in military readiness and unit cohesion. Defendants failed
18 to meet that burden. Thus, Plaintiff is entitled to judgment in its favor on the
19 first claim in its First Amended Complaint for violation of the substantive due
20 process rights guaranteed under the Fifth Amendment.
21
22

V. PLAINTIFF'S FIRST AMENDMENT CHALLENGE TO THE ACT

23

Congress shall make no law . . . abridging the freedom of speech,


. . . or the right of the people peaceably to assemble, and to petition
24
the Government for a redress of grievances.
U.S. Const. amend. I.
25
26
27
28
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Plaintiff claims that the Don't Ask, Don't Tell Act violates its members'

2 First Amendment rights to these freedoms. (FAC 1, 6, 45-49; Pl.'s Mem.


3 Cont. Fact & Law at 32-33.)
4
5 A.

The Standard of Review in First Amendment Challenges

Plaintiff challenges the Act as overbroad and as an unconstitutional

7 restriction on speech based on its content. (FAC 47; Pl.'s Mem. Cont.
8 Fact & Law at 35, 40.)
9
10

Laws regulating speech based on its content generally must withstand

11 intense scrutiny when facing a First Amendment challenge:


12
13
14
15
16
17
18
19
20
21

At the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs
deserving of expression, consideration, and adherence. Our
political system and cultural life rest upon this ideal. Government
action that stifles speech on account of its message, or that requires
the utterance of a particular message favored by the Government,
contravenes this essential right. Laws of this sort pose the inherent
risk that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information or
manipulate the public debate through coercion rather than
persuasion. These restrictions rais[e] the specter that the
Government may effectively drive certain ideas or viewpoints from
the marketplace. For these reasons, the First Amendment, subject
only to narrow and well-understood exceptions, does not
countenance governmental control over the content of messages
expressed by private individuals. Our precedents thus apply the
most exacting scrutiny to regulations that suppress, disadvantage,
or impose differential burdens upon speech because of its content.
Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis added)

22 (citations omitted).
23
24

In Simon & Schuster, Inc. v. Members of New York State Crime Victims

25 Board, 502 U.S. 105 (1991), the Supreme Court considered whether New
26 York's "Son of Sam" law purporting to strip authors of profits gained from
27 books or other publications depicting their own criminal activities constituted
28
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1 content-based regulation. Holding the law was not content neutral, the Court
2 held that "[i]n order to justify such differential treatment, 'the State must show
3 that its regulation is necessary to serve a compelling state interest and is
4 narrowly drawn to achieve that end.'" Id. at 118 (citing Arkansas Writers'
5 Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)).
6
7

Log Cabin Republicans urges the Court to strike down the Don't Ask,

8 Don't Tell Act as an impermissibly content-based statute. (See Pl.'s Mem.


9 Cont. Facts & Law at 35.) The Court turns first to the threshold question of
10 whether or not the Act constitutes a content-based restriction on speech.
11
12 B.

Judicial Definitions of Content-Based Regulation

13

"Deciding whether a particular regulation is content-based or content-

14 neutral is not always a simple task. We have said that the principal inquiry in
15 determining content-neutrality . . . is whether the government has adopted a
16 regulation of speech because of [agreement or] disagreement with the
17 message it conveys." Turner, 512 U.S. at 642 (citations omitted). The
18 Supreme Court in Turner distilled the rule as follows: a law that by its terms
19 "distinguish[es] favored speech from disfavored speech on the basis of the
20 ideas or views expressed [is] content-based." Id. at 643 (citing Burson v.
21 Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry, 485 U.S. 312, 318-19
22 (1988)).
23
24

Defendants did not address directly the question of content neutrality,

25 but relied instead on authorities that, for various reasons, fail to counter the
26 clear weight of the case law discussed above. Defendants repeatedly cited
27 the Ninth Circuit's decisions in Witt v. Department of Air Force, 527 F.3d 806
28
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1 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), and Holmes v.
2 California National Guard, 124 F.3d 1126 (9th Cir. 1997), although the
3 plaintiff in Witt brought no First Amendment claim and the Court in Philips
4 expressly declined to reach the First Amendment issue, noting the district
5 court also had stopped short of resolving it.
6
7

In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech

8 claims in summary manner, holding because the plaintiffs "were discharged


9 for their conduct and not for speech, the First Amendment is not implicated."
10 124 F.3d at 1136 (citations omitted). Holmes relied on the Fourth Circuit's
11 decision in Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), which rejected a
12 First Amendment challenge to the Don't Ask, Don't Tell Act on the basis that it
13 "permissibly uses the speech as evidence," and "[t]he use of speech as
14 evidence in this manner does not raise a constitutional issue the First
15 Amendment does not prohibit the evidentiary use of speech to establish the
16 elements of a crime, or, as is the case here, to prove motive or intent." Id. at
17 931 (citations omitted). Holmes also relied on Pruitt v. Cheney, 963 F.2d
18 1160 (9th Cir. 1991), although acknowledging that decision was based not on
19 the Don't Ask, Don't Tell Act but a superseded policy. See Holmes, 124 F.3d
20 at 1136 (citing Pruitt, 963 F.2d at 1164).
21
22

In other words, Holmes and the cases from other circuits have found

23 the Don't Ask, Don't Tell Act does not raise a First Amendment issue to be
24 analyzed under a content-neutral versus content-based framework. None of
25 these authorities, however, considered whether there might be any speech,
26 other than admissions of homosexuality subject to being used as evidence in
27 discharge proceedings, affected by the Act. Furthermore, Holmes was
28
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1 decided before Lawrence and was "necessarily rooted" in Bowers v.


2 Hardwick, 478 U.S. 186 (1986), which Lawrence overruled. See Holmes, 124
3 F.3d at 1137 (Reinhardt, J., dissenting).
4
5

Lawrence struck down a Texas statute making felonious certain sexual

6 acts between two persons of the same sex; the Supreme Court held in part
7 that the Constitution recognized certain substantive due process rights,
8 associated with the "autonomy of self that includes freedom of thought, belief,
9 expression, and certain intimate conduct." Lawrence, 539 U.S. at 562
10 (emphasis added). The Holmes decision, finding the Act did not implicate the
11 First Amendment, and the Act's provisions, appear at odds with the Supreme
12 Court's decision in Lawrence. As Holmes explains:
13
14
15
16
17
18

Homosexual conduct is grounds for separation from the Military


Services under the terms set forth [in the DOD Directives.]
Homosexual conduct includes homosexual acts, a statement by a
member that demonstrates a propensity or intent to engage in
homosexual acts, or a homosexual marriage or attempted marriage.
A statement by a member that demonstrates a propensity or intent to
engage in homosexual acts is grounds for separation not because it
reflects the member's sexual orientation, but because the statement
indicates a likelihood that the member engages in or will engage in
homosexual acts.
124 F.3d at 1129 (quoting DOD Directive 1332.30 at 2-1(c) (emphasis

19 added)).
20
21

The Holmes Court found the Act does not punish status, despite the

22 presumption embodied within it that declared homosexual servicemembers


23 will engage in proscribed homosexual conduct, finding the assumption was
24 "imperfect" but "sufficiently rational to survive scrutiny . . . ." 124 F.3d at
25 1135.
26
27
28
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Thus, Holmes's foundations rational basis scrutiny, acceptance of an

2 assumption of sexual misconduct based on admitted homosexual orientation,


3 and the Bowers decision all have been undermined by Lawrence,
4 particularly in light of its explicit protection of "expression." See Lawrence,
5 539 U.S. at 562. Furthermore, if the proscription in subsection (b)(1) of the
6 Act violates substantive due process as set forth above, then the limitation on
7 speech in subsection (b)(2) necessarily fails as well. "Plainly, a limitation on
8 speech in support of an unconstitutional objective cannot be sustained." Able
9 v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996). Holmes, decided before
10 Lawrence, therefore does not shield Defendants from Plaintiff's First
11 Amendment claim.
12
13 C.

The Don't Ask, Don't Tell Act is Content Based

14

The Act in subsection (b)(2) requires a servicemember's discharge if he

15 or she "has stated that he or she is a homosexual or bisexual, or words to


16 that effect . . . ." 10 U.S.C. 654 (b)(2) (emphasis added). The Act does not
17 prohibit servicemembers from discussing their sexuality in general, nor does
18 it prohibit all servicemembers from disclosing their sexual orientation.
19 Heterosexual members are free to state their sexual orientation, "or words to
20 that effect," while gay and lesbian members of the military are not. Thus, on
21 its face, the Act discriminates based on the content of the speech being
22 regulated. It distinguishes between speech regarding sexual orientation, and
23 inevitably, family relationships and daily activities, by and about gay and
24 lesbian servicemembers, which is banned, and speech on those subjects by
25 and about heterosexual servicemembers, which is permitted.
26
27
28
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The First Amendment's hostility to content-based regulation "extends

2 not only to restrictions on particular viewpoints, but also to prohibition of


3 public discussion of an entire topic. As a general matter, 'the First
4 Amendment means that government has no power to restrict expression
5 because of its message, its ideas, its subject matter, or its content.'" Consol.
6 Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980)
7 (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).
8
9

In evaluating the constitutionality of such regulations in a military

10 context, however, courts traditionally do not apply the strict scrutiny described
11 above. Rather, courts apply a more deferential level of review of military
12 restrictions on speech.
13

Our review of military regulations challenged on First Amendment


grounds is far more deferential than constitutional review of similar
14
laws or regulations designed for civilian society. The military need
not encourage debate or tolerate protest to the extent that such
15
tolerance is required of the civilian state by the First Amendment; to
accomplish its mission the military must foster instinctive obedience,
16
unity, commitment, and esprit de corps.
Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted).
17
18
19
20
21
22
23
24
25
26
27

Although careful to point out that the "subordination of the desires and
interests of the individual to the needs of the service," which is "the essence
of military life," does not entirely abrogate the guarantees of the First
Amendment, the Supreme Court emphasized the "great deference [courts
must afford] to the professional judgment of military authorities concerning
the relative importance of a particular military interest." Id. (citations omitted).
The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S. 57
(1981), oft-cited for the principle that "judicial deference . . . is at its apogee
when legislative action under the congressional authority to raise and support

28
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1 armies and make rules and regulations for their governance is challenged."
2 Id. at 70.
3
4

In keeping with this well-established rule of deference, regulations of

5 speech in a military context will survive Constitutional scrutiny if they "restrict


6 speech no more than is reasonably necessary to protect the substantial
7 government interest." Brown v. Glines, 444 U.S. 348, 348, 355 (1980) (citing
8 Greer v. Spock, 424 U.S. 828 (1976); Procunier v. Martinez, 416 U.S. 396
9 (1974)).
10
11 D.

The Act Does Not Survive the Level of Constitutional Scrutiny

12

Applied to Speech in a Military Context

13

The Don't Ask, Don't Tell Act fails this test of constitutional validity.

14 Unlike the regulations on speech upheld in Brown and Spock, for example,
15 the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell
16 Act is far broader than is reasonably necessary to protect the substantial
17 government interest at stake here. In Brown, the Supreme Court upheld an
18 Air Force regulation that required Air Force personnel first to obtain
19 permission from the base commander before distributing or posting petitions
20 on Air Force bases, 444 U.S. at 348; in Greer, the Court upheld a similar
21 regulation on Army bases, banning speeches, demonstrations, and
22 distribution of literature, without prior approval from post headquarters. 424
23 U.S. at 828. In both cases, the Court rejected facial challenges to the
24 regulations, holding they protected substantial Governmental interests
25 unrelated to the suppression of free expression, i.e., maintaining the respect
26 for duty and discipline, and restricted speech no more than was reasonably
27 necessary to protect that interest.
28
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By contrast to the relatively narrow regulations at issue in Brown and

2 Greer, however, the Don't Ask, Don't Tell Act encompasses a vast range of
3 speech, far greater than necessary to protect the Government's substantial
4 interests.
5
6

For example, Michael Almy and Anthony Loverde, as well as other

7 witnesses, described how the Act prevented them from discussing their
8 personal lives or comfortably socializing off duty with their respective
9 colleagues; this in turn created a certain "distance" and perhaps an aura of
10 distrust. (Trial Tr. 820:6--821:4;821:19-822:9, July 16, 2010 (Almy); Trial Tr.
11 1360:1-1361:17, July 21, 2010 (Loverde).) Steven Vossler testified that the
12 Act made it difficult for him to spend time off duty with other members of his
13 unit, as the Act prevented him from talking openly about spending time with
14 his friend Jerrod Chaplowski because of the need to disguise the identity of
15 Chaplowski's companion. (Trial Tr. 327:12-328:20, July 14, 2010.)
16
17

Similarly, Jenny Kopfstein testified that before she decided not to

18 conceal her sexual orientation, the Act made it impossible for her to respond
19 to her shipmates' questions about mundane matters such as how she spent
20 her leisure time, as doing so would necessarily reveal the existence of her
21 lesbian partner. (Trial Tr. 931:22-932:11, July 16, 2010.) She testified that
22 having to conceal information that typically was shared made her feel as
23 though others on the ship might distrust her, and that trust is critical,
24 especially in emergencies or crises. (Trial Tr. 957:6-22, July 20, 2010.)
25
26
27
28
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In other words, all of these examples demonstrate that the Act's

2 restrictions on speech not only are broader than reasonably necessary to


3 protect the Government's substantial interests, but also actually serve to
4 impede military readiness and unit cohesion rather than further these goals.
5
6

Many of the lay witnesses also spoke of the chilling effect the Act had

7 on their ability to bring violations of military policy or codes of conduct to the


8 attention of the proper authorities. Joseph Rocha, eighteen years old and
9 stationed in Bahrain, felt restrained from complaining about the extreme
10 harassment and hazing he suffered because he feared that he would be
11 targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14,
12 July 15, 2010.) In fact, his fear was so great that he initially refused to
13 answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15,
14 July 15, 2010.) John Nicholson and Anthony Loverde also testified about a
15 similar chilling effect on their speech when overhearing or being subjected to
16 homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20,
17 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).)
18
19

The Act prevents servicemembers from openly joining organizations

20 such as the plaintiff in this lawsuit that seek to change the military's policy on
21 gay and lesbian servicemembers; in other words, it prevents them from
22 petitioning the Government for redress of grievances. John Doe, for
23 example, feared retaliation and dismissal if he joined the Log Cabin
24 Republicans under his true name or testified during trial; thus, he was forced
25 to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doe Decl.]
26 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16,
27 2010.)
28
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Furthermore, as discussed above, the Act punishes servicemembers

2 with discharge for writing a private letter, in a foreign language, to a person of


3 the same sex with whom they shared an intimate relationship before
4 volunteering for military service. It subjects them to discharge for writing
5 private e-mail messages, in a manner otherwise approved, to friends or
6 family members, if those communications might lead the (unauthorized)
7 reader to discern the writer's sexual orientation. These consequences
8 demonstrate that the Act's restrictions on speech are broader than
9 reasonably necessary to protect the Government's interest. Moreover, the
10 Act's restrictions on speech lead to the discharge of servicemembers with
11 qualifications in critically-needed occupations, such as foreign language
12 fluency and information technology. The net effect of these discharges, as
13 revealed not only in the testimony of the lay witnesses but also of the experts
14 who testified and Defendants' own admissions regarding the numbers of
15 servicemembers discharged and the costs of recruiting and maintaining an
16 all-volunteer military force, compel the conclusion that the Act restricts
17 speech more than reasonably necessary to protect the Government's
18 interests.
19
20

Finally, it again must be noted that Defendants called no witnesses, put

21 on no affirmative case, and only entered into evidence the legislative history
22 of the Act. This evidence, discussed in Section IV(C)(1) above, does not
23 suffice to show the Act's restrictions on speech are "no more than is
24 reasonably necessary" to achieve the goals of military readiness and unit
25 cohesion. (See supra Section IV(C)(1).)
26
27
28
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For these reasons, Plaintiff is also entitled to judgment on its claim for

2 violation of the First Amendment's guarantees of freedom of speech and


3 petition.
4
5
6

VI. CONCLUSION
Throughout the consideration and resolution of this controversy, the

7 Court has kept well in mind the overriding principle that "judicial deference to
8 such congressional exercise of authority is at its apogee when legislative
9 action under the congressional authority to raise and support armies and
10 make rules and regulations for their governance is challenged." Rostker, 453
11 U.S. at 70. Nevertheless, as the Supreme Court held in Rostker, "deference
12 does not mean abdication." Id. at 67, 70. Plaintiff has demonstrated it is
13 entitled to the relief sought on behalf of its members, a judicial declaration
14 that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments,
15 and a permanent injunction barring its enforcement.
16
17
18 IT IS SO ORDERED.
19
20
21 Dated: October 12, 2010

VIRGINIA A. PHILLIPS
United States District Judge

22
23
24
25
26
27
28
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. CV 04-08425-VAP (Ex)

Date: October 12, 2010

Title:

LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA and


ROBERT M. GATES, SECRETARY OF DEFENSE
===============================================================
PRESENT:
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard
Courtroom Deputy
ATTORNEYS PRESENT FOR
PLAINTIFFS:

None Present
Court Reporter
ATTORNEYS PRESENT FOR
DEFENDANTS:

None
PROCEEDINGS:

None
ORDER GRANTING PERMANENT INJUNCTION (IN
CHAMBERS)

On September 9, 2010, the Court issued its Memorandum Opinion ruling in


favor of Plaintiff Log Cabin Republicans ("Plaintiff" or "Log Cabin") on the first and
second claims in its First Amended Complaint, holding the "Don't Ask, Don't Tell"
Act, 10 U.S.C. 654, violates the First and Fifth Amendments to the United States
Constitution. The Court directed Plaintiff to submit a proposed judgment with
preliminary injunction, and set a deadline for Defendants to submit any objections to
the same. (Mem. Op. at 85.)

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CV 04-08425-VAP (Ex)
LOG CABIN REPUBLICANS v. UNITED STATES OF AMERICA and ROBERT M. GATES
MINUTE ORDER of October 12, 2010

Accordingly, Plaintiff timely submitted its "Request for Judgment and


Permanent Injunction" ("Request for Permanent Injunction" or the "Request") on
September 16, 2010. On September 23, 2010, Defendants United States of
America and Robert M. Gates, Secretary of Defense (collectively, "Defendants"),
filed "Objections to Request for Judgment and Permanent Injunction" ("Objections"
or "Defs.' Objections"). Plaintiff filed a response to the Objections ("Response") on
September 24, 2010, and an Amended Proposed form of Judgment and Permanent
Injunction ("Amended Request" or "Amd. Req.") on October 7, 2010. Having
considered the evidence presented during trial and the papers the parties submitted
in support of and in opposition to the Request for Permanent Injunction, the Court
GRANTS Plaintiff's Request in part, for the reasons set forth below.
I. BACKGROUND AND PROCEDURAL HISTORY
The parties tried the case to the Court from July 13 through 16 and July 20
through 23, 2010. The Court issued a Memorandum Opinion on September 9, 2010,
finding the Don't Ask, Don't Tell Act ("Don't Ask, Don't Tell," the "Act," or "DADT")
unconstitutional on its face under the First and Fifth Amendments to the United
States Constitution. The Court concluded, "Plaintiff is entitled to the relief sought in
its First Amended Complaint: a judicial declaration to that effect and a permanent
injunction barring further enforcement of the Act." (Mem. Op. at 1.)
After Plaintiff filed the Request for Permanent Injunction (Doc No. 233),
Defendants filed the following objections to Plaintiff's Request: (1) Plaintiff's
proposed injunction is overbroad because it (a) should be limited to Plaintiff and its
members, (b) "would foreclose the United States from litigating the constitutionality of
DADT in other courts," (c) "improperly seeks to prevent the government from making
the showing permitted by the Ninth Circuit in Witt,"1 and (d) "impermissibly seeks to
effectively negate Courts of Appeals' rulings upholding DADT"; (2) Plaintiff's
proposed injunction "seeks to extend beyond enjoining DADT"; (3) "no injunction

Witt v. Dep't of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (holding the Don't
Ask, Don't Tell Act constitutes an intrusion "upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified in Lawrence," and is
subject to heightened scrutiny.).
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MINUTE ORDER of October 12, 2010

should be entered or made effective until the Government has had an opportunity to
consider the terms of any injunction and move for a stay"; and (4) "Log Cabin is not
entitled to EAJA [Equal Access to Justice Act] Fees." (Doc. No. 235 (Defs.'
Objections) at i.) Plaintiff filed its Response on September 24, 2010 (Doc. No. 236)
and an Amended Request on September 28, 2010 (Doc. No. 238). On September
29, 2010, Defendants filed a "Supplement to Objections." (Doc. No. 239.)
II. ANALYSIS
A.
Plaintiff Is Entitled to a Permanent Injunction
"The requirements for the issuance of a permanent injunction are 'the likelihood
of substantial and immediate irreparable injury and the inadequacy of remedies at
law.'" American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066-67
(9th Cir. 1995) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir. 1985),
modified, 796 F.2d 309 (9th Cir. 1986)).
Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures
servicemembers by infringing their fundamental rights and violating (a) the
substantive due process rights guaranteed under the Fifth Amendment to the United
States Constitution, and (b) the rights to freedom of speech and to petition the
Government for redress of grievances guaranteed by the First Amendment to the
United States Constitution. (See Mem. Op. at 12-13, 74, 83, 85; see American-Arab
Anti-Discrimination Comm., 70 F.3d at 1071 (holding that violations of procedural
due process and First Amendment rights constitute irreparable harm).) Furthermore,
there is no adequate remedy at law to prevent the continued violation of
servicemembers' rights or to compensate them for violation of their rights. See
American-Arab Anti-Discrimination Comm., 70 F.3d at 1071 (holding there is no
adequate remedy at law for "denial of legalization based on a constitutional
violation").
Defendants do not contend Plaintiff has not satisfied these requirements for
issuance of a permanent injunction. In fact, Defendants do not address the
requirements in their Objections.

Thus, Plaintiff is entitled to a permanent injunction barring enforcement of the


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MINUTE ORDER of October 12, 2010

Don't Ask, Don't Tell Act.


B.

Defendants' Objections to Plaintiff's Proposed Injunction


1.
Defendants' Objections to the Breadth of the Injunction
a.
The Proposed Injunction Does Not Bind Non-Parties
Defendants first argue that the Court cannot enjoin the United States military
from enforcing the Act because such an injunction would be overbroad. (Defs.'
Objections at 3.) Defendants contend the injunction should be limited to Plaintiff and
its members because Plaintiff "has only ever purported to assert the rights of its own
members. . . . Therefore, [P]laintiff should not be allowed to assert the rights of third
parties for the first time through a proposed judgment." (Id.) According to
Defendants, the proposed injunction would "extend injunctive relief to nonparties."
(Id. at 4.)
This argument attempts to transform Plaintiff's challenge into an as-applied
attack on the Act, which squarely contradicts Defendants' position throughout this
litigation. (See, e.g., Doc. No. 186 (Defs.' Mem. of Cont. Fact & Law) at 1 ("no trial is
necessary or appropriate on plaintiff's facial challenge.") (emphasis added), 5
("Burden of Proof Regarding Facial Due Process Claim . . . . a 'facial challenge to a
legislative Act is . . . the most difficult challenge to mount successfully. . . .'")
(emphasis added), 7 ("Burden of Proof Regarding Facial First Amendment Claim . . .
. plaintiff has steadfastly maintained throughout this litigation that it brings facial
constitutional claims, including a facial First Amendment claim.") (emphasis added);
Doc No. 188 (Defs.' Proposed Findings of Fact & Conclusions of Law) at 6 ("Because
resolution of LCR's facial substantive due process claim is a pure question of law . . .
.") (emphasis added).)
As Plaintiff correctly points out, it challenged the Act on its face, not as applied
to it or its members. (Resp. at 4-5.) Therefore, its entitlement to relief is not
constrained as Defendants suggest, and the Court is not limited to granting a remedy
that would affect only Plaintiff and its members. The Court found the Act
unconstitutional on its face; accordingly, the resulting remedy should be as broad as
necessary to achieve the relief Plaintiff sought. Furthermore, Plaintiff's proposed
injunction does not bind nonparties as Defendants suggest; instead, it binds the
actual, named Defendants in this action -- the United States of America and Robert
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M. Gates, in his official capacity as Secretary of the Department of Defense -- both of


whom fully participated in and litigated this lawsuit.
The remedy Plaintiff sought and obtained here was invalidation of the Don't
Ask, Don't Tell Act. The nature of the remedy stems from the nature of the challenge
-- here, a facial challenge. As set forth below, courts may invalidate a statute in its
entirety pursuant to a facial challenge, though partial invalidation is preferred where
possible.
In Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), the Ninth Circuit held a
district court did not abuse its discretion in ordering what was, in effect, nationwide
relief. There, plaintiff migrant workers sought a declaratory judgment that the
Migrant and Seasonal Agricultural Workers Protection Act applied to forestry workers
and an injunction requiring the Secretary of Labor to enforce the Act in the industry.
In analyzing the appropriate scope of the injunction, the Bresgal court noted, "The
Supreme Court has held that a federal agency is not necessarily entitled to confine
any ruling of a court of appeals to its immediate jurisdiction." Id. at 1170 (discussing
Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which held there are no legal limits
on the geographical scope of a class action brought in federal district court). "Thus
there is no bar against class-wide, and nationwide relief in federal district or circuit
court when it is appropriate." Bresgal, 843 F.2d at 1170 (citations omitted).
Defendants' argument that nationwide relief is available only in class actions
fails. There are numerous instances where district courts have granted nationwide
relief in non-class actions. See, e.g., Earth Island Inst. v. Pengilly, 376 F. Supp. 2d
994 (E.D. Cal. 2005) (invalidating five Forest Service regulations and issuing a
nationwide injunction against their application), aff'd, 490 F.3d 687 (9th Cir. 2007),
rev'd on other grounds, Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009);
Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374, 1400-01 (M.D.N.C. 1997) (issuing
injunction preventing the FDA from enforcing regulations on tobacco products), rev'd
on other grounds, Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir.
1998), aff'd, 529 U.S. 120 (2000); Finley v. Nat'l Endowment for the Arts, 795 F.
Supp. 1457, 1476 (C.D. Cal. 1992) (granting summary judgment on plaintiff's facial
challenge to the National Foundation on the Arts and the Humanities Act of 1965 and
enjoining its enforcement), aff'd, 100 F.3d 671 (9th Cir. 1996), rev'd on other
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grounds, 524 U.S. 569 (1998); Hodel v. Va. Surface Min. & Reclamation Ass'n, Inc.,
483 F. Supp. 425 (D.C. Va. 1980) (finding Surface Mining Control and Reclamation
Act unconstitutional and permanently enjoining the Secretary from enforcing various
provisions of the Act), rev'd on other grounds, 452 U.S. 264 (1981); see also
Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349 (Fed. Cir. 2002)
(noting that where a party challenges a regulation's facial validity, total invalidation is
an appropriate remedy).
b.
Severability
Generally, however, an injunction "should be no more burdensome to the
defendant than necessary to provide complete relief to the plaintiff." (Defs.'
Objections at 3-4 (citing Califano, 442 U.S. at 702).) Accordingly, partial, rather than
total, invalidation is "the normal rule," and invalid provisions should be severed from
valid provisions whenever possible. Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 329, 331 (2006) (holding, in response to a facial challenge to
a statute's constitutionality, courts should issue a narrower remedy whenever
possible); United States v. AMC Entm't, Inc., 549 F.3d 760, 774-75 (9th Cir. 2008)
(Wardlaw, J., concurring in part and dissenting in part) (hereinafter "AMC Entm't (9th
Cir.)") ("district courts within our circuit commonly issue nationwide injunctions where
the 'injunction . . . is tailored to the violation of law that the Court already found -- an
injunction that is no broader but also no narrower than necessary to remedy the
violations." (citing California ex rel. Lockyer v. USDA, 468 F. Supp. 2d 1140, 1144
(N.D. Cal. 2006))); Golden Door, Inc. v. Odisho, 437 F. Supp. 956, 968 (N.D. Cal.
1977), aff'd, 646 F.2d 347 (9th Cir. 1980), abrogated on other grounds by Japan
Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866 (9th Cir. 2002) ("Plaintiff's
market area, and hence the sphere of its reputation, are nationwide. Accordingly, it
is entitled to nationwide protection against confusion and dilution. The scope of the
injunction must therefore be nationwide."); see Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684-86 (1987) (setting out rules governing severability of federal statutes);
Sabri v. United States, 541 U.S. 600, 608-09 (2004); Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 501-03 (1985); Regan v. Time, Inc., 468 U.S. 641, 653 (1984)
(plurality opinion) (adopting presumption of severability); United States v. Raines,
362 U.S. 17, 21 (1960); Champlin Refining Co. v. Corp. Comm'n, 286 U.S. 210, 234
(1932); Richard H. Fallon et al., Hart and Wechsler's The Federal Courts and the
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Federal System 162-65 (6th ed. 2009) (describing severability doctrine as applied to
federal statutes).
In accordance with these principles, the Court considers whether the Act
contains constitutional provisions that are "separable" or "severable" from the
unconstitutional portions. Though the Government objected to the breadth of
Plaintiff's proposed injunction, it never addressed the possibility of severance.
Nevertheless, the Court has considered severability sua sponte and finds it
impossible to sever the unconstitutional provisions of the Act for the reasons
discussed below.
"The standard for determining the severability of an unconstitutional provision
is well established: Unless it is evident that the Legislature would not have enacted
those provisions which are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative as a law." Alaska Airlines,
480 U.S. at 684 (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam));
accord Time, 468 U.S. at 653; INS v. Chadha, 462 U.S. 919, 931-32 (1983); United
States v. Jackson, 390 U.S. 570, 585 (1968). "Congress could not have intended a
constitutionally flawed provision to be severed from the remainder of the statute if the
balance of the legislation is incapable of functioning independently." Alaska Airlines,
480 U.S. at 684 (citing Hill v. Wallace, 259 U.S. 44, 70-72 (1922) (holding the Future
Trading Act nonseverable because valid and invalid provisions were so intertwined
that the court would have to rewrite the law to allow it to stand)). Thus, the
severability doctrine depends upon whether the court can formulate a satisfying
limiting principle to constrain the statute. See Ayotte, 546 U.S. at 331. If not,
severing unconstitutional applications is not an option and the court must resort to
full invalidation. See id.
Here, severing the unconstitutional provisions of the Act would not leave a fully
operative law because the invalid provisions are so intertwined with any valid
provisions that a limiting construction is not feasible. The Act provides that any
member of the United States military who engages in "homosexual conduct" is
subject to discharge unless the servicemember is able to demonstrate that he or she
does not have a propensity to engage in "homosexual conduct." See 10 U.S.C.
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654; see Department of Defense Directives 1332.14 (1993), 1332.30 (1997),


1304.26 (1993); Department of Defense Instruction 1332.14 (2008) (incorporating
March 29, 2010, changes), 1332.30 (2008) (incorporating March 29, 2010, changes).
The Act defines "homosexual conduct" as sexual acts with persons of the same sex,
admissions that one is homosexual or bisexual, and attempts to marry a person of
the same sex. 10 U.S.C. 654. In its Memorandum Opinion, the Court found it
unconstitutional to discharge servicemembers on the basis of their homosexuality.
As the Act entirely pertains to the discharge of servicemembers on the basis of
homosexual conduct, it is unconstitutional in its totality. Formulating a constitutional
statute would require the Court to rewrite the Act.
The Supreme Court has cautioned courts against rewriting a statute in an
attempt to salvage it. Ayotte, 546 U.S. at 329-30. Instead, courts should "impose a
limiting construction on a statute only if it is 'readily susceptible' to such a
construction." Reno v. ACLU, 521 U.S. 844, 884-85 (1997) (citation omitted). Such
susceptibility may turn on the availability of a "clear line" supported by statutory text
or legislative intent that the Court could use to trim a statute to constitutional
confines. Id.; see also City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality
opinion) (finding severability impossible where "vagueness permeates the text of [a
criminal] law"). Here, there is no saving provision in the language of the Act itself nor
any evidence of legislative intent that would allow the Court to narrow the statute to
constitutional confines. Further, the unconstitutional nature of the Act permeates the
text of the statute. Thus, total invalidation is the narrowest remedy available for the
relief sought here.
c.

Effect of Injunction on Defendants' Ability to Defend the Act in


Other Courts
Next, Defendants argue that the proposed injunction is improper because it (1)
prevents Defendants from defending the constitutionality of the Don't Ask, Don't Tell
Act in other courts, and (2) prevents "the government from making the showing
permitted by the Ninth Circuit in Witt." (Defs.' Objections at 8.) These contentions
either ignore the nature of Plaintiff's challenge or misstate the consequences of this
injunction.

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To the extent that Defendants' reference to "other courts" is intended to refer to


other district courts, Defendants are correct that this injunction will prevent them from
defending the constitutionality of the Don't Ask, Don't Tell Act. As discussed above,
the proper remedy for the relief sought here is complete invalidation of the Don't Ask,
Don't Tell Act. As such, Defendants are bound by this Court's ruling. Further, if
Defendants' objection is that they will be unable to defend current or future asapplied challenges, Defendants once again fail to recognize the nature of Plaintiff's
challenge. Plaintiff did not prevail on an as-applied challenge, which would have
rendered the Act unconstitutional as applied to it but not affected the constitutionality
of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its
face and requested an order permanently enjoining the Act's enforcement. As the
Court deems this remedy proper, Defendants are unable to defend the Act in asapplied challenges. Likewise, if Defendants' objection is that they will be unable to
defend current or future facial challenges to the Act, the same reasoning applies. To
the extent that Defendants' reference to "other courts" indicates higher courts,
Defendants' recourse, if they wish to defend the Act further, is to appeal this Court's
ruling.
Defendants next argue that the Court should not issue a nationwide injunction
because other circuit courts have found the Act constitutional. Defendants cite no
case in which a court finding a federal statute unconstitutional on its face has limited
its ruling to a particular judicial district. Defendants instead cite four circuit cases
holding the Don't Ask, Don't Tell Act constitutional: Cook v. Gates, 528 F.3d 42 (1st
Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir. 1998); Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)
(en banc). The fact that courts in other circuits have not invalidated the Don't Ask,
Don't Tell Act does not prevent this Court from doing so. Able, Richenberg, and
Thomasson all predate the Supreme Court's decision in Lawrence v. Texas, 539
U.S. 558 (2003), which recognized a fundamental right to "an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate conduct." 539
U.S. at 562. Cases that predate Lawrence are not relevant to this inquiry because
the Court's decision here relied upon the Ninth Circuit's holding in Witt, which
adopted the heightened level of scrutiny announced in Lawrence. See Witt, 527
F.3d at 819 (holding the Don't Ask, Don't Tell Act constitutes an intrusion "upon the
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personal and private lives of homosexuals, in a manner that implicates the rights
identified in Lawrence," and is subject to heightened scrutiny). Defendants chose not
to appeal Witt and accordingly are bound by it.
As for Cook, its disposition is distinguishable from this case because Cook
arose after the district court granted a motion to dismiss, not on the merits after a
trial, as here. Furthermore, as discussed more fully in its Memorandum Opinion, the
Court finds Cook's reasoning unpersuasive. For example, in affirming dismissal of a
facial due process challenge to the Don't Ask, Don't Tell Act, the Cook court
presented two "circumstances under which the Act would be valid." See Cook, 528
F.3d at 56 (holding the Act is constitutional on its face because it provides for
separation of a servicemember "who engages in a public homosexual act or who
coerces another person to engage in a homosexual act." (citing United States v.
Salerno, 481 U.S. 739, 745 (1987))). Those examples are bases for discharge of
any servicemember, whether the conduct in question is homosexual or heterosexual.
(See Mem. Op. at 15-16 (noting that "the Cook decision provide[d] no citation to any
provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as
grounds for discharge under that legislation.").)
d.
Comity
The Court next turns to Defendants' argument that comity prevents the Court
from issuing a nationwide injunction. As noted above, of the four circuit cases
holding the Don't Ask, Don't Tell Act constitutional, Cook is the only case decided
after Lawrence and accordingly the only one relevant here. The doctrine of comity is
a "prudential consideration" that arises when there is a tension between courts
having concurrent jurisdiction over the same matter. See Pennsylvania v. Union Gas
Co., 491 U.S. 1, 23-29 (1989) (Stevens, J., concurring), rev'd on other grounds,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Erwin Chemerinsky, Federal
Jurisdiction 39-40, n.28 (5th Ed. 2007) (citing Paul Finkelman, An Imperfect Union:
Slavery, Federalism and Comity 4 (1981) (defining comity as "the courtesy or
consideration that one jurisdiction gives by enforcing the laws of another, granted out
of respect and deference rather than obligation.")). The doctrine of comity is not a
rule of law, but rather is grounded in equitable considerations of respect, goodwill,
cooperation, and harmony among courts. See Danforth v. Minnesota, 552 U.S. 264,
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278-280, n.15 (2008) (discussing comity in the context of habeas corpus); Younger
v. Harris, 401 U.S. 37 (1971) (holding that comity prevents federal courts from
enjoining pending state court proceedings); Cornfeld v. Investors Overseas Servs.,
Ltd., 471 F. Supp. 1255, 1258-62 (D.C.N.Y. 1979) (international comity);
Chemerinsky, Federal Jurisdiction, supra, at 39-40, n.28. Though comity often
arises in the context of federalism and the attendant deference federal courts owe
state courts, the Ninth Circuit also has invoked the doctrine to encourage deference
among federal courts. See generally AMC Entm't (9th Cir.), 549 F.3d at 760.
In AMC Entertainment, the United States brought suit against a national movie
theater owner alleging that some of its theaters violated Americans with Disabilities
Act ("ADA") regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter "AMC
Entm't (C.D. Cal.)"). The district court granted the government's motion for summary
judgment and issued a nationwide injunction requiring the defendants to comply with
the ADA regulations, and the defendants appealed. Id.
The Ninth Circuit began its analysis by recognizing that district courts have the
power to issue nationwide injunctions. AMC Entm't (9th Cir.), 549 F.3d at 770-71
("Once a court has obtained personal jurisdiction over a defendant, the court has the
power to enforce the terms of the injunction outside the territorial jurisdiction of the
court, including issuing a nationwide injunction." (citing Steele v. Bulova Watch Co.,
344 U.S. 280, 289 (1952) ("the District Court in exercising its equity powers may
command persons properly before it to cease or perform acts outside its territorial
jurisdiction"); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981)
("When a district court has jurisdiction over all parties involved, it may enjoin the
commission of acts outside of its district."))).
Nevertheless, the divided Ninth Circuit panel went on to hold that the district
court abused its discretion by issuing a nationwide injunction because "the principles
of comity" should have constrained the court from enjoining defendants' theaters in
the Fifth Circuit, which previously had held defendants' theaters did not violate the
ADA. AMC Entm't (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit
"judicially repudiated" the reasoning adopted by the district court "when considering
the same arguments" enforced in the district court's injunction). The panel held:
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Principles of comity require that, once a sister circuit has spoken to an issue,
that pronouncement is the law of that geographical area. Courts in the Ninth
Circuit should not grant relief that would cause substantial interference with
the established judicial pronouncements of such sister circuits. To hold
otherwise would create tension between circuits and would encourage forum
shopping.
Id. at 773.
AMC Entertainment is distinguishable from the present case because the
former turns on statutory construction, not on fundamental constitutional rights. As
Plaintiff argues, "Whatever may be the merits [of comity] in the context of statutory
construction -- where, for example, our legal system tolerates differing rules in
different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the
like -- it can hold no sway on issues of constitutional rights." (Resp. at 7.) The Court
agrees that the fundamental constitutional rights at issue here must trump
considerations of comity. To hold otherwise would create an untenable result in
which Defendants could, pursuant to the Act, discharge servicemembers in Maine,
Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is
rooted in equity; here, the balance of equities decisively tips in favor of upholding the
fundamental constitutional rights protected by the First and Fifth Amendments to the
United States Constitution.
2.
Defendants' Objection to Specific Language in the Injunction
Defendants object that certain language in Plaintiff's proposed injunction would
enjoin conduct that is extraneous to the Don't Ask, Don't Tell Act. The specific
language to which Defendants object enjoins Defendants and their agents "from
taking any actions whatsoever, or permitting any person or entity to take any action
whatsoever, against gay or lesbian servicemembers, or prospective
servicemembers, that in any way affects, impedes, interferes with, or influences their
military status, advancement, evaluation, duty assignment, duty location, promotion,
enlistment or reenlistment based upon their sexual orientation." (Amd. Req. at 2.)
Defendants argue this language "appears to subject all employees of the United
States government to contempt and enforcement in this Court based on claims
relating to any actions 'based upon' a servicemember's (or a 'prospective
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servicemember's') sexual orientation." (Defs.' Objections at 9 (emphasis in original).)


In its Response and Amended Request for Injunction, Plaintiff clarifies that its
injunction was not intended to extend beyond the Don't Ask, Don't Tell Act to enjoin
extraneous conduct such as sexual harassment or sexual misconduct that are
already covered under other provisions of military law and regulations. (Resp. at 9.)
To address Defendants' concern, Plaintiff suggests adding the phrase "under the
color of law or military regulation." (Id.)
The Court finds this modification does not sufficiently constrain the language of
the injunction to the confines of the Act and accordingly sustains Defendants'
objection.
3.

Defendants' Objection That No Injunction Should Be Entered or


Made Effective Until the Government Has Had an Opportunity to
Consider the Terms of Any Injunction and Move for a Stay
Defendants next object that "no injunction should be entered or made effective
until the Government has had an opportunity to consider the terms of any injunction
and move for a stay." (Defs.' Objections at 10-12.) Defendants have requested a
stay in this action on three previous occasions. The Court has rejected each
request. Defendants do not raise new arguments here, instead arguing "the political
branches are thoroughly engaged in considering the repeal of the DADT statute" and
reiterating the political nature of this issue and the challenges the military will face in
complying with the invalidation of DADT. (Id. at 11.)
Furthermore, Defendants have not requested a stay pending appeal nor do
they provide an estimate of how much time they need to consider the terms of the
injunction and move for a stay. Instead, Defendants merely request the Court
indefinitely defer entry of the injunction. (See id. at 10-12) As the Court previously
noted, "Defendants cite no authority for the proposition that district courts should stay
litigation concerning the constitutionality of federal laws for an indefinite period
merely because the legislative and executive branches have expressed doubts
concerning the continued wisdom of the challenged laws." (Doc. No. 100 (November
24, 2009, Minute Order Denying Motion to Certify Order for Interlocutory Appeal and
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for Stay) at 5.) The Court has provided Defendants sufficient opportunity to consider
the terms of Plaintiff's proposed injunction and request a stay. They have failed to do
so. For these reasons and those set forth in the Court's previous rulings on the
issuance of a stay, the Court declines to delay entry of the injunction.
4.

Defendants' Objection to Log Cabin's Request to Apply for Equal


Access to Just Act ("EAJA") Fees
The Court disregards Defendants' objection that Plaintiff is not entitled to EAJA
fees because Plaintiff has not yet moved for fees but instead has only requested
permission to apply for such fees. Defendants' arguments regarding whether or not
Plaintiff is entitled to fees are more properly directed towards such an application, if
one is filed. Thus, the Court grants Plaintiff's request to file an application for EAJA
fees.
III. CONCLUSION
For the forgoing reasons, the Court:
(1) DECLARES that the act known as "Don't Ask, Don't Tell"2 infringes the
fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights guaranteed
under the Fifth Amendment to the United States Constitution, and (b) the rights to
freedom of speech and to petition the Government for redress of grievances
guaranteed by the First Amendment to the United States Constitution;
(2) PERMANENTLY ENJOINS Defendants United States of America and the
Secretary of Defense, their agents, servants, officers, employees, and attorneys, and
all persons acting in participation or concert with them or under their direction or

Codified in statute at 10 U.S.C. 654 and implemented by regulations


comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and
1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008)
(incorporating March 29, 2010, changes) and 1332.30 (2008) (incorporating March
29, 2010, changes).
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command, from enforcing or applying the "Don't Ask, Don't Tell" Act and
implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of
Defense immediately to suspend and discontinue any investigation, or discharge,
separation, or other proceeding, that may have been commenced under the "Don't
Ask, Don't Tell" Act, or pursuant to 10 U.S.C. 654 or its implementing regulations,
on or prior to the date of this Order;
(4) GRANTS Plaintiff Log Cabin Republicans' request to apply for attorneys'
fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412; and
(5) GRANTS Plaintiff Log Cabin Republicans' request to file a motion for costs
of suit, to the extent allowed by law.
IT IS SO ORDERED.

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DECLARATION OF CLIFFORD L. STANLEY

2 I, Clifford L. Stanley, declare as follows:


3

1.

I am currently Under Secretary of Defense for Personnel and

4 Readiness. I am the senior policy advisor to the Secretary of Defense on


5 recruitment, career development, pay, and benefits for the 1.4 million active-duty
6 military personnel, 1.3 million Guard and Reserve personnel, and 680,000 DoD
7 civilian employees. I am responsible for overseeing the overall state of military
8 readiness. I was nominated for this position by the President on October 15, 2009,
9 and was confirmed by the Senate on February 9, 2010.
10

2.

One of the offices under my authority, direction, and control is the

11 Office of Officer and Enlisted Personnel Management. That office is responsible


12 for most Department of Defense Issuances, including DoD Directives and
13 Instructions, governing personnel policy for the military. The implementation of
14 the "Don't Ask, Don't Tell" statute (DADT), 10 U.S.C. 654, involves many
15 aspects of such personnel policy. The Department implements 654 primarily
16 through three DoD Instructions for which I am responsible, and regulates dozens
17 of related issues through other regulations, policies and guidances.
18

3.

Primary responsibility for the policy oversight of the implementation

19 of a repeal of DADT (or compliance with an injunction of similar effect) would


20 reside with the Office of Officer and Enlisted Personnel Management.
21

4.

I am also a member of the Executive Committee of the

22 Comprehensive Review Working Group that is charged with assessing the impact
23 of a repeal of 654 and, should a repeal occur, developing a plan to support the
24 implementation of repeal. In this capacity, I participate in regular meetings with
25 the co-chairs of the Working Group and other members of the Executive
26 Committee, at which we discuss the Working Group's activities and progress.
27

5.

I served for 33 years in the U.S. Marine Corps and retired as a Major

28 General in 2002.

DECLARATION OF CLIFFORD L. STANLEY

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6.

I am aware of the Court's decision in this case that 654 and the

2 Department's associated regulations violate the First and Fifth Amendments of the
3 Constitution. In this declaration I will not address the merits of the Court's
4 decision. I submit this declaration to make the following point: the Government
5 intends to appeal the Court's decision. During the pendency of that appeal, the
6 military should not be required to suddenly and immediately restructure a major
7 personnel policy that has been in place for years, particularly during a time when
8 the Nation is involved in combat operations overseas. The magnitude of repealing
9 the DADT law and policy is demonstrated by the Department's ongoing efforts to
10 study the implications of repealing DADT, which I outline in detail below.
7.
Further, an injunction before the appeal in this case has run its course
11
12 will place gay and lesbian servicemembers in a position of grave uncertainty. If
13 the Court's decision were later reversed, the military would be faced with the
14 question of whether to discharge any servicemembers who have revealed their
15 sexual orientation in reliance on this Court's decision and injunction. Such an
16 injunction therefore should not be entered before appellate review has been
17 completed.
18

8.

As demonstrated below, in the event DADT is no longer in effect, an

19 injunction with immediate and worldwide effect will have adverse effects on both
20 military readiness and the Department's ability to effect a smooth and lasting
21 transition to a policy that accommodates the presence of openly gay and lesbian
22 servicemembers. The stakes here are so high, and the potential harm so great, that
23 caution is in order.
24 Ongoing Efforts to Implement the Views of the Legislative Branch and Key
25 Executive Branch Officials
9.
The President, Secretary of Defense, and Chairman of the Joint
26
27 Chiefs of Staff have all announced their support for a repeal of the DADT statute.
28 Nevertheless, while expressing support for repeal, these officials have also

DECLARATION OF CLIFFORD L. STANLEY

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1 expressed their firm belief that, to be successful, implementation of a repeal of the


2 statute must be done in a comprehensive and orderly manner.
3

10.

The President, who called for repeal of the statute during his 2010

4 State of the Union address, has said as recently as last month that implementation
5 of repeal must be done in "an orderly way." (See Ex. A.) The Chairman of the
6 Joint Chiefs of Staff testified before the Senate Armed Services Committee on
7 February 2, 2010, that "any implementation plan for a policy permitting gays and
8 lesbians to serve openly in the armed forces must be carefully derived, sufficiently
9 thorough, and thoughtfully executed." (See Ex. B.)
10

11.

In support of the effort to repeal the DADT statute, but also

11 recognizing that a repeal could not be successfully implemented in a precipitous


12 manner, the Secretary of Defense on March 2, 2010, established the Department of
13 Defense Comprehensive Review Working Group and designated Jeh C. Johnson,
14 the Department's General Counsel, and General Carter F. Ham, Commanding
15 General, U.S. Army Europe, as Co-Chairs of the Working Group.
12. The Secretary of Defense's memorandum establishing the Working
16
17 Group, emphasized that "[t]o be successful [in implementing repeal], we must
18 understand all issues and potential impacts associated with repeal of the law and
19 how to manage implementation [of repeal] in a way that minimizes disruption to a
20 force engaged in combat operations and other demanding military activities
21 around the globe." (See Ex. C.)
13. Congressional proposals to repeal DADT have also recognized the
22
23 need for careful planning. The House of Representatives has passed, and the
24 Senate Armed Services Committee has approved, a bill that would allow the repeal
25 of the DADT statute. But even that proposed legislation does not provide for the
26 immediate repeal of the statute. Under the proposed legislation, repeal would not
27 take effect until 60 days after a certification by the President, Secretary of
28 Defense, and Chairman of the Joint Chiefs of Staff that they have considered the
recommendations contained in the Working Group's report; that the Department of
DECLARATION OF CLIFFORD L. STANLEY

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1 Defense has prepared the necessary policies and regulations to implement repeal;
2 and that the implementation of those policies and regulations is consistent with the
3 standards of military readiness, military effectiveness, unit cohesion, and
4 recruiting and retention.
5 The Ongoing Efforts of the DoD Comprehensive Review Working Group
14. The Secretary of Defense has directed the Working Group to provide
6
7 "an assessment of the implications" of repeal and "an implementation plan for any
8 new statutory mandate." The Working Group's report and plan of action are due to
9 the Secretary of Defense no later than December 1, 2010.
15. Thus far, as directed by the Secretary of Defense, the Working Group
10
11 has made extensive efforts to solicit the views of servicemembers and their
12 families regarding potential issues associated with repeal. The Secretary of
13 Defense has emphasized that he believes that members of the military must be
14 afforded the opportunity to inform us of their concerns, insights, and suggestions
15 if we are to carry out such a change successfully. Among other things, the
16 Working Group has conducted visits to numerous military installations across the
17 country and overseas, where they have interacted with tens of thousands of
18 servicemembers on this issue. The Working Group has also conducted an
19 extensive, professionally developed survey that was distributed to a representative
20 sample of approximately 400,000 servicemembers.
21

16.

An immediate, court-ordered cessation of enforcement of the policy

22 would force the military to implement a change without awaiting the analysis of
23 the data that has been gathered, and without attempting to take account of the
24 results. A court-ordered injunction would thus undermine the credibility and
25 validity of the entire process, and make transition to a new policy far more
26 difficult and more likely to impair unit cohesion, good order, discipline, and
27 military readiness.
28

17.

Additionally, the Working Group is undertaking a comprehensive

legal and policy review of the issues implicated by repeal of DADT. The result of
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1 the legal and policy review will be recommended changes to DoD regulations and
2 policies to address the issues associated with repeal and to mitigate any potentially
3 negative impacts repeal may have.
18. The Working Group is also developing tools for leadership to educate
4
5 and train the force in the event of repeal. The Secretary of Defense has
6 emphasized that "strong, engaged, and informed leadership will be required at
7 every level to properly and effectively implement" such a change. (See Ex. C.)
19. The Working Group is in the midst of its efforts and is on track to
8
9 provide its report and plan of action to the Secretary of Defense by December 1,
10 2010. December 1 is by no means, however, the date on which the Department
11 may be prepared to implement a change to DADT in the event the DADT law is
12 repealed or eliminated. Additional steps that must occur after December 1 include
13 review, assessment, and approval of the Working Groups' report and
14 recommendations by the leadership of the Army, Navy, Air Force, and Marines;
15 the Secretary of Defense; and by the Chairman of the Joint Chiefs of Staff.
16 Changing the policy will also require the writing of new policies and regulations
17 by the relevant components within DoD and the Services based on those
18 recommendations; and the conducting of education and training programs for
19 servicemembers and commanders. These items cannot be fully developed for
20 implementation until the Working Group's recommendations are presented to the
21 Secretary of Defense, and the Secretary makes decisions about those
22 recommendations. It is not possible to determine now, prior to the report's
23 completion, precisely how long that process will take, but this entire process will
24 likely take some number of months.
25

20.

As the Secretary of Defense recognized when convening the Working

26 Group, months of planning are necessary before the Department can implement
27 the orderly elimination of DADT without creating risk to the operation of the
28 military in the midst of ongoing conflicts.

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1 The Effect of Immediate Invalidation


21. Requiring the Department to cease all enforcement of DADT,
2
3 immediately and worldwide, will cause significant disruptions to the force in the
4 short term and, in the long term, would likely undermine the effectiveness of any
5 transition to accepting open service by gays and lesbians in the event the law is
6 repealed or eliminated.
7

22.

In the short term, there will be an immediate need to train and educate

8 the force about the change to DADT and other policies, and to revise dozens of
9 regulations and policies.
10

23.

For the tens of thousands of servicemembers serving in theaters of

11 active conflict, there will be a tension between the requirement that the policy
12 change take effect immediately and the need to avoid interference with ongoing
13 operations. The exigencies of combat and other operations thus may delay the
14 Department's ability to educate the forward-deployed servicemembers about a
15 court-ordered change in policy.
24. This is problematic because education and training will be essential to
16
17 the implementation of any change in the DADT law and policy. It will be
18 difficult, if not impossible, to provide timely education to forces engaged in
19 combat operations. The Secretary of Defense specifically cited the need to avoid
20 interfering with combat operations when charging the Working Group with
21 developing a plan for implementing repeal of the DADT policy; the same concern
22 applies to the judicial invalidation of the statute.
23

25.

Even for the hundreds of thousands of servicemembers not serving in

24 forward-deployed areas, training and education will be essential to inform


25 servicemembers of what is expected of them in this new environment. These
26 training programs cannot be provided instantaneously.
26. Invalidation of the DADT statute implicates dozens of DoD and
27
28 Service policies and regulations that cover such disparate issues as housing,
benefits, re-accession, military equal opportunity, anti-harassment, standards of
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1 conduct, rights and obligations of the Chaplain corps, and others. Amending these
2 regulations would typically take several months. To change all of the implicated
3 policies and underlying regulations will require a massive undertaking by the
4 Department and cannot be done overnight.
5

27.

The issues described above are not merely hypothetical: they have

6 been repeatedly raised by servicemembers and senior military leaders during the
7 Working Group's engagement of the force.
8 Training and Education are Critical to Success
28. A number of servicemembers have expressed concerns about, or
9
10 opposition to, the repeal of DADT and its replacement with a policy that would
11 permit gays and lesbians to serve openly. One of the purposes of the Working
12 Group is to understand these concerns and to develop an implementation approach
13 that adequately addresses them, through changes to policy where necessary and,
14 more importantly, through education and training of the force. An immediate
15 injunction would curtail the Working Group process and would send a very
16 damaging message to our men and women in uniform that their views, concerns,
17 and perspectives do not matter on an issue with a direct impact on their lives. This
18 message would undermine the morale of the force and not just among those
19 servicemembers who oppose repeal, but of all servicemembers who have informed
20 the Department of their concerns, insights, and suggestions.
29. Overall, an abrupt change - without adequate planning or time to
21
22 implement a plan - substantially increases the probability of failure or backlash in
23 the early months of this transition, months that will be critical to our long-term
24 success.
30.
25

It is important to keep in mind that thousands of military personnel

26 have enforced the DADT policy for many years. Any change to the policy will
27 require that these personnel receive training and instruction in a number of areas,
28 including: (i) how the policy has changed; (ii) why the policy has changed; (iii)
how the change in this policy affects other existing policies; (iv) appropriate
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1 treatment of gay and lesbian servicemembers who reveal their sexual orientation;
2 (v) appropriate treatment of servicemembers who object to serving with
3 servicemembers they know to be gay or lesbian; and (vi) principles to consider
4 when handling other issues that may arise the elimination of the DADT policy.
5 Thus, it is not simply a matter of saying that a particular statute shall no longer be
6 enforced.
7

31.

The need to educate and train the force will require the Department to

8 develop and give to commanders the tools necessary for this education and
9 training. Developing such tools, although already underway, and communicating
10 them effectively, will take time and effort to complete and implement once the
11 Working Group recommendations are analyzed and final decisions are made.
12 Again, this training will be particularly difficult to conduct in forward-deployed
13 areas. Without this education and training, commanders in the field will not have
14 the necessary guidance and will not be able to enforce the new regime in the
15 consistent, even-handed manner that is essential to morale, discipline, and good
16 order. Equally importantly, servicemembers must know what is expected of them
17 in this new environment.
18 Lingering Uncertainty During Appeal
32. The military also should not be required to restructure military policy
19
20 and law during the pendency of the Government's appeal. If the Court's judgment
21 is overturned on appeal, and Congress has not since repealed the statute, the
22 Department of Defense will be obligated by statute to reinstate DADT. Removing
23 and then reinstating DADT will be extremely disruptive, as well as unduly costly
24 and time-consuming, particularly at a time when this Nation is involved in combat
25 operations overseas.
26

33.

Enjoining the operation of the statute before any appeal is concluded,

27 moreover, would place gay and lesbian servicemembers in a position of grave


28 uncertainty. If the Court's decision were later reversed, the military would be
faced with the question of whether to discharge any servicemembers who have
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1 revealed their sexual orientation in reliance on this Court's decision and


2 injunction. Such an injunction therefore should not be entered before appellate
3 review has been completed.
4 The Importance of a Careful Transition
5

34.

More challenging than determining the substance of the new policies

6 and regulations, and devising the appropriate training, is that the need to comply
7 with an immediate, worldwide injunction will necessitate devising solutions
8 on-the-fly, rather than doing so after careful planning. The resulting ad hoc
9 solutions will not be as effective as those that would come after careful
10 consideration. Because of the difficulty of changing policies a second time, these
11 imperfect ad hoc solutions likely will become permanent, potentially jeopardizing
12 the long-term success of the transition.
35. The ad hoc implementation of policies and procedures likely would
13
14 undermine morale, good order and discipline, and unit cohesion, interests cited by
15 Congress in 10 U.S.C. 654(a)(6). If the Department must devise and implement
16 new policies on an ad hoc basis, morale will likely suffer as servicemembers and
17 their families recognize that their responses to the Working Group surveys will be
18 for naught. To proceed without evaluating those concerns, insights, and
19 suggestions would send the damaging message that the concerns of military
20 members do not matter on this issue that directly affects them and their families.
21 Unit cohesion, good order, and discipline could suffer if the Department must
22 implement this change without the time needed to develop education and training
23 for the force.
24

36.

Equally troubling is the potential harm to the long-term goal of a

25 successful transition. If the DADT policy is eventually abolished, the military will
26 only get one chance to implement the change. For a change of this magnitude, the
27 initial stages are extraordinarily important to the long-term success of the project.
28 That is one reason why the President, Secretary of Defense, and Chairman of the
Joint Chiefs of Staff have emphasized the need for careful planning of this
DECLARATION OF CLIFFORD L. STANLEY

-9-

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1 transition. A poorly implemented transition will not only cause short-term


2

disruption to military operations, but will also jeopardize the long-term success of

the transition. Either outcome would irreparably harm our military and the

national security of the United States.

Conclusion

37.

A stay of the Court's injunction is necessary to permit the Working

Group to finish its important work, and to allow the Department of Defense to

formulate and implement the necessary policies, leadership guidance, and training

to implement a change to DADT in as smooth and orderly fashion as possible,

10

thereby maximizing the likelihood of a successful transition and minimizing any

11

disruption to ongoing military operations.

12

13

I declare under penalty of perjury that the foregoing is true and correct.

14

Executed this

~-b'-v

day ofOC+~, 2010.

15
16
17
18
19

20
21

22
23
24
25
26
27

28

DECLARATION OF CLIFFORD L. STANLEY

-10

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Exhibit A

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Obama in Command:
The Rolling Stone Interview
In an Oval Office interview, the president discusses the Tea Party, the war, the economy and whats at
stake this November

ADVERTISEMENT

Photograph by Mark Seliger for RollingStone.com

By Jann S. Wenner
Sep 28, 2010 7:00 AM EDT

The following is an article from the October 15, 2010 issue of Rolling Stone.

e arrived at the southwest gate of the white house a little after one o'clock on the afternoon
of September 17th. It was a warm fall day, but the capital felt quiet and half-empty, as it does
on Fridays at the end of summer, with Congress still in recess. Rolling Stone had interviewed
Barack Obama twice before, both times aboard his campaign plane first in June 2008, a few
days after he won the Democratic nomination, and again that October, a month before his
election. This time executive editor Eric Bates and I sat down with the president in the Oval
Office, flanked by busts of Abraham Lincoln and Martin Luther King Jr. The conversation
stretched on for nearly an hour and a quarter. The president began by complimenting my
multi-colored striped socks. "If I wasn't president," he laughed, "I could wear socks like that."

ADVERTISEMENT

Well, I'll tell you that given the state of the economy during my transition, between my election
and being sworn in, our working assumption was that everybody was going to want to pull
together, because there was a sizable chance that we could have a financial meltdown and the
entire country could plunge into a depression. So we had to work very rapidly to try to create a
combination of measures that would stop the free-fall and cauterize the job loss.

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Audio Excerpts: Obama


on Dylan and McCartney
at the White House

Matt Taibbi: The Truth


About the Tea Party

Interview: After the


Primaries by Jann S.
Wenner (July 2008)

The recovery package we shaped was put together on the theory that we shouldn't exclude any
ideas on the basis of ideological predispositions, and so a third of the Recovery Act were tax
cuts. Now, they happened to be the most progressive tax cuts in history, very much geared
toward middle-class families. There was not only a fairness rationale to that, but also an
economic rationale those were the folks who were most likely to spend the money and,
hence, prop up demand at a time when the economy was really freezing up.
I still remember going over to the Republican caucus to meet with them and present our ideas,
and to solicit ideas from them before we presented the final package. And on the way over, the
caucus essentially released a statement that said, "We're going to all vote 'No' as a caucus." And
this was before we'd even had the conversation. At that point, we realized that we weren't going
to get the kind of cooperation we'd anticipated. The strategy the Republicans were going to
pursue was one of sitting on the sidelines, trying to gum up the works, based on the assumption
that given the scope and size of the recovery, the economy probably wouldn't be very good,
even in 2010, and that they were better off being able to assign the blame to us than work with
us to try to solve the problem.

I don't think it's a shock. I had served in the United States Senate; I had seen how the filibuster
had become a routine tool to slow things down, as opposed to what it used to be, which was a
selective tool although often a very destructive one, because it was typically targeted at civil
rights and the aspirations of African-Americans who were trying to be freed up from Jim Crow.
But I'd been in the Senate long enough to know that the machinery there was breaking down.
What I was surprised somewhat by, and disappointed by, although I've got to give some
grudging admiration for just how effective it's been, was the degree to which [Senate Minority
Leader] Mitch McConnell was able to keep his caucus together on a lot of issues. Eventually, we
were able to wear them down, so that we were able to finally get really important laws passed,
some of which haven't gotten a lot of attention the credit-card reform bill, or the antitobacco legislation, or preventing housing and mortgage fraud. We'd be able to pick off two or
three Republicans who wanted to do the right thing.
But the delays, the cloture votes, the unprecedented obstruction that has taken place in the
Senate took its toll. Even if you eventually got something done, it would take so long and it
would be so contentious, that it sent a message to the public that "Gosh, Obama said he was
going to come in and change Washington, and it's exactly the same, it's more contentious than
ever." Everything just seems to drag on even what should be routine activities, like
appointments, aren't happening. So it created an atmosphere in which a public that is already
very skeptical of government, but was maybe feeling hopeful right after my election, felt
deflated and sort of felt, "We're just seeing more of the same."

Well, on the economic front, their only agenda seems to be tax cuts for the wealthiest
Americans. If you ask their leadership what their agenda will be going into next year to bring
about growth and improve the job numbers out there, what they will say is, "We just want these
tax cuts for the wealthiest Americans, which will cost us $700 billion and which we're not going
to pay for."
Now what they'll also say is, "We're going to control spending." But of course, when you say
you're going to borrow $700 billion to give an average $100,000-a-year tax break to people
making a million dollars a year, or more, and you're not going to pay for it; when Mitch
McConnell's overall tax package that he just announced recently was priced at about $4

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trillion; when you, as a caucus, reject a bipartisan idea for a fiscal commission that originated
from Judd Gregg, Republican budget chair, and Kent Conrad, Democratic budget chair, so that
I had to end up putting the thing together administratively because we couldn't get any support
you don't get a sense that they're actually serious on the deficit side.

I think the Tea Party is an amalgam, a mixed bag of a lot of different strains in American
politics that have been there for a long time. There are some strong and sincere libertarians
who are in the Tea Party who generally don't believe in government intervention in the market
or socially. There are some social conservatives in the Tea Party who are rejecting me the same
way they rejected Bill Clinton, the same way they would reject any Democratic president as
being too liberal or too progressive. There are strains in the Tea Party that are troubled by what
they saw as a series of instances in which the middle-class and working-class people have been
abused or hurt by special interests and Washington, but their anger is misdirected.
And then there are probably some aspects of the Tea Party that are a little darker, that have to
do with anti-immigrant sentiment or are troubled by what I represent as the president. So I
think it's hard to characterize the Tea Party as a whole, and I think it's still defining itself.

There's no doubt that the infrastructure and the financing of the Tea Party come from some
very traditional, very powerful, special-interest lobbies. I don't think this is a secret. Dick
Armey and FreedomWorks, which was one of the first organizational mechanisms to bring Tea
Party folks together, are financed by very conservative industries and forces that are opposed to
enforcement of environmental laws, that are opposed to an energy policy that would be
different than the fossil-fuel-based approach we've been taking, that don't believe in
regulations that protect workers from safety violations in the workplace, that want to make
sure that we are not regulating the financial industries in ways that we have.
There's no doubt that there is genuine anger, frustration and anxiety in the public at large
about the worst financial crisis we've experienced since the Great Depression. Part of what we
have to keep in mind here is this recession is worse than the Ronald Reagan recession of the
Eighties, the 1990-91 recession, and the 2001 recession combined. The depths of it have been
profound. This body politic took a big hit in the gut, and that always roils up our politics, and
can make people angry. But because of the ability of a lot of very well-funded groups to point
that anger I think misdirect that anger it is translating into a relevant political force in this
election.

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Prima
Wenne

Interv
Victor
(Oct. 2

Galler
the Ye

Galler
Politic

[Laughs] Look, as president, I swore to uphold the Constitution, and part of that Constitution
is a free press. We've got a tradition in this country of a press that oftentimes is opinionated.
The golden age of an objective press was a pretty narrow span of time in our history. Before
that, you had folks like Hearst who used their newspapers very intentionally to promote their
viewpoints. I think Fox is part of that tradition it is part of the tradition that has a very clear,
undeniable point of view. It's a point of view that I disagree with. It's a point of view that I
think is ultimately destructive for the long-term growth of a country that has a vibrant middle
class and is competitive in the world. But as an economic enterprise, it's been wildly successful.
And I suspect that if you ask Mr. Murdoch what his number-one concern is, it's that Fox is very
successful.

That's a bunch of different questions, so let me see if I can kind of knock them out one by one.
One of the healthy things about the Democratic Party is that it is diverse and opinionated. We
have big arguments within the party because we got a big tent, and that tent grew during my
election and in the midterm election previously. So making everybody happy within the
Democratic Party is always going to be tough.
Some of it, also, has to do with and I joke about it that there's a turn of mind among
Democrats and progressives where a lot of times we see the glass as half-empty. It's like, "Well,
gosh, we've got this historic health care legislation that we've been trying to get for 100 years,
but it didn't have every bell and whistle that we wanted right now, so let's focus on what we
didn't get instead of what we got." That self-critical element of the progressive mind is probably
a healthy thing, but it can also be debilitating.
When I talk to Democrats around the country, I tell them, "Guys, wake up here. We have
accomplished an incredible amount in the most adverse circumstances imaginable." I came in
and had to prevent a Great Depression, restore the financial system so that it functions, and
manage two wars. In the midst of all that, I ended one of those wars, at least in terms of combat
operations. We passed historic health care legislation, historic financial regulatory reform and
a huge number of legislative victories that people don't even notice. We wrestled away billions

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of dollars of profit that were going to the banks and middlemen through the student-loan
program, and now we have tens of billions of dollars that are going directly to students to help
them pay for college. We expanded national service more than we ever have before.
The Recovery Act alone represented the largest investment in research and development in our
history, the largest investment in infrastructure since Dwight Eisenhower, the largest
investment in education and that was combined, by the way, with the kind of education
reform that we hadn't seen in this country in 30 years and the largest investment in clean
energy in our history.
You look at all this, and you say, "Folks, that's what you elected me to do." I keep in my pocket
a checklist of the promises I made during the campaign, and here I am, halfway through my
first term, and we've probably accomplished 70 percent of the things that we said we were
going to do and by the way, I've got two years left to finish the rest of the list, at minimum.
So I think that it is very important for Democrats to take pride in what we've accomplished.
All that has taken place against a backdrop in which, because of the financial crisis, we've seen
an increase in poverty, and an increase in unemployment, and people's wages and incomes
have stagnated. So it's not surprising that a lot of folks out there don't feel like these victories
have had an impact. What is also true is our two biggest pieces of legislation, health care and
financial regulatory reform, won't take effect right away, so ordinary folks won't see the impact
of a lot of these things for another couple of years. It is very important for progressives to
understand that just on the domestic side, we've accomplished a huge amount.
When you look at what we've been able to do internationally resetting our relations with
Russia and potentially having a new START treaty by the end of the year, reinvigorating the
Middle East peace talks, ending the combat mission in Iraq, promoting a G-20 structure that
has drained away a lot of the sense of north versus south, east versus west, so that now the
whole world looks to America for leadership, and changing world opinion in terms of how we
operate on issues like human rights and torture around the world all those things have had
an impact as well.
What is true, and this is part of what can frustrate folks, is that over the past 20 months, we
made a series of decisions that were focused on governance, and sometimes there was a conflict
between governance and politics. So there were some areas where we could have picked a fight
with Republicans that might have gotten our base feeling good, but would have resulted in us
not getting legislation done.
I could have had a knock-down, drag-out fight on the public option that might have energized
you and The Huffington Post, and we would not have health care legislation now. I could have
taken certain positions on aspects of the financial regulatory bill, where we got 90 percent of
what we set out to get, and I could have held out for that last 10 percent, and we wouldn't have
a bill. You've got to make a set of decisions in terms of "What are we trying to do here? Are we
trying to just keep everybody ginned up for the next election, or at some point do you try to win
elections because you're actually trying to govern?" I made a decision early on in my presidency
that if I had an opportunity to do things that would make a difference for years to come, I'm
going to go ahead and take it.
I just made the announcement about Elizabeth Warren setting up our Consumer Finance
Protection Bureau out in the Rose Garden, right before you came in. Here's an agency that has
the potential to save consumers billions of dollars over the next 20 to 30 years simple stuff
like making sure that folks don't jack up your credit cards without you knowing about it,
making sure that mortgage companies don't steer you to higher-rate mortgages because they're
getting a kickback, making sure that payday loans aren't preying on poor people in ways that
these folks don't understand. And you know what? That's what we say we stand for as
progressives. If we can't take pleasure and satisfaction in concretely helping middle-class
families and working-class families save money, get a college education, get health care if
that's not what we're about, then we shouldn't be in the business of politics. Then we're no
better than the other side, because all we're thinking about is whether or not we're in power.

I've got to disagree with that. If you take a look at it, what we've essentially said is that the vast
majority of derivatives are now going to be sold through a clearinghouse. And if you ask the
experts what was the best way to make sure the derivative markets didn't bring down the
economy again, it's transparency, so that everybody understands who the counterparties are,
everybody understands what the deal is, what the risks are it's all aboveboard, it's all in the
light of day.
People have legitimate concerns that if the rules drafted by all these various agencies in charge
of implementing financial reform wind up with exceptions that are so big you can drive a truck
through them, and suddenly you can have these specially tailored derivatives that are sold
outside of the clearinghouse, then you could end up with an inadequate regulatory structure.
But if the rules are written properly and I have confidence that the people I appointed to

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p p y
p p
pp
these agencies intend to apply them properly its going to make a difference. Is it going to
solve every potential problem in Wall Street in a multi-trillion-dollar, worldwide, capital
market? Probably not. There could end up being new schemes, new loopholes that folks are
going to try to exploit. The special interests are already ginning up to try to influence the
rulemaking process in all these issues, so we have to remain vigilant. But to say that we did not
significantly improve oversight of the derivatives market, it just isnt true.

Let me first of all say this. . . .

[Laughs] Exactly. I read some of the articles that Tim Dickinson and others have produced in
Rolling Stone. I understand the point of view that they're bringing. But look: Tim Geithner
never worked for Goldman; Larry Summers didn't work for Goldman. There is no doubt that I
brought in a bunch of folks who understand the financial markets, the same way, by the way,
that FDR brought in a lot of folks who understood the financial markets after the crash,
including Joe Kennedy, because my number-one job at that point was making sure that we did
not have a full-fledged financial meltdown.
The reason that was so important was not because I was concerned about making sure that the
folks who had been making hundreds of millions of dollars were keeping their bonuses for the
next year. The reason was because we were seeing 750,000 jobs a month being lost when I was
sworn in. The consequence to Main Street, to ordinary folks, was catastrophic, and we had to
make sure that we stopped the bleeding. We managed to stabilize the financial markets at a
cost that is much less to taxpayers than anybody had anticipated. The truth of the matter is that
TARP will end up costing probably less than $100 billion, when all is said and done. Which I
promise you, two years ago, you could have asked any economist and any financial expert out
there, and they would have said, "We'll take that deal."

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Interv
Victor
(Oct. 2

Galler
the Ye

Galler
Politic

One of the things that you realize when you're in my seat is that, typically, the issues that come
to my desk there are no simple answers to them. Usually what I'm doing is operating on the
basis of a bunch of probabilities: I'm looking at the best options available based on the fact that
there are no easy choices. If there were easy choices, somebody else would have solved it, and it
wouldn't have come to my desk.
That's true for financial regulatory reform, that's true on Afghanistan, that's true on how we
deal with the terrorist threat. On all these issues, you've got a huge number of complex factors
involved. When you're sitting outside and watching, you think, "Well, that sounds simple," and
you can afford to operate on the basis of your ideological predispositions. What I'm trying to do
and certainly what we've tried to do in our economic team is to keep a North Star out
there: What are the core principles we're abiding by? In the economic sphere, my core principle
is that America works best when you've got a growing middle class, and you've got ladders so
that people who aren't yet in the middle class can aspire to the middle class, and if that broad
base is rolling, then the country does well.

I've gotta say that I have been surprised by some of the rhetoric in the business press, in which
we are accused of being anti-business. I know a lot of these guys who started hedge funds. They
are making large profits, taking home large incomes, but because of a rule called "carried
interest," they are paying lower tax rates than their secretaries, or the janitor that cleans up the
building. Or folks who are out there as police officers and teachers and small-business people.
So all we've said is that it makes sense for them to pay taxes on it like on ordinary income.
I understand why folks might disagree with that. I've yet to meet a broad base of people who
are anxious to pay higher taxes. But the point you're making, which is exactly right, is that what
should be a pretty straightforward policy argument ends up generating the kind of rhetoric
we've been seeing: where I'm anti-business, I'm socialist, our administration is trying to
destroy capitalism. That, I think, is over-the-top.
The average American out there who is my primary concern and is making 60 grand a year and
paying taxes on all that income and trying to send their kids through school, and partly as a
consequence of bad decisions on Wall Street, feels that their job is insecure and has seen their
401(k) decline by 30 percent, and has seen the value of their home decline I don't think
they're that sympathetic to these guys, and neither am I.

I was in my office in the residence, in the Treaty Room. Joe Biden called me he was the first
one who heard about it. I think it was Sunday night, and I had one of the staff here send me up
a copy, and I read through the article. I will say at the outset that I think Gen. McChrystal is a
fine man, an outstanding soldier, and has served this country very well. I do not think that he
meant those comments maliciously I think some of those comments were from his staff and

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meant those comments maliciously. I think some of those comments were from his staff, and
so he was poorly served. And it pained me to have to make the decision I did. Having said that,
he showed bad judgment. When I put somebody in charge of the lives of 100,000 young men
and women in a very hazardous situation, they've got to conduct themselves at the highest
standards, and he didn't meet those standards.

The remarks themselves, I think, showed poor judgment. The rest of the article had to do with
a series of very difficult, complex choices on the ground in Afghanistan, in which, as I said
before, there are no easy answers. So Gen. McChrystal, in response to a very serious and
legitimate concern about civilian casualties in Afghanistan, put out orders that have
significantly reduced civilian casualties. The flip side of it is that it frustrates our troops, who
feel that they may not be able to go on the offense as effectively, and it may put them in danger.
That's a profound strategic, tactical debate that takes place in the military. That's not unique to
Gen. McChrystal that's a debate that Gen. Petraeus is having to work his way through, that's
a debate that I have to work my way through as commander in chief.
To broaden the issue for a second, you were asking about the sources of frustration in the
progressive community; clearly, Afghanistan has to be near the top of the list, maybe at the top
of the list. I always try to point out, number one, that this shouldn't have come as any surprise.
When I was campaigning, I was very specific. I said, "We are going to end the war in Iraq, that
was a mistake," and I have done that. What I also said was that we need to plus up what we're
doing in Afghanistan, because that was where the original terrorist threat emanated, and we
need to finish the job. That's what we're doing.

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(Oct. 2

Galler
the Ye

Galler
Politic

Now, I think that a lot of progressive supporters thought that maybe it would be easier than it
has proven to be to try to bring Afghanistan to a place where we can see an end in sight. The
fact of the matter is, when we came in, what we learned was that the neglect of Afghanistan had
been more profound than we expected. Just simple examples: The Afghan National Army, the
Afghan security forces, oftentimes were recruited, given a uniform, given a rifle, and that was it
they weren't getting trained. As a functional matter, there was no way that they were going to
start taking the place of U.S. troops.
What we've had to do after an extensive review that I engaged in was to say to our commanders
on the ground, "You guys have to have a strategy in which we are training Afghan security
forces, we're going to break the Taliban momentum, but I am going to establish a date at which
we start transitioning down and we start turning these security functions over to a newly
trained Afghan security force." That is what we're in the process of doing.
It is exacting a terrible cost. Whenever I go over to Walter Reed or Bethesda, or when I was in
Afghanistan, and I meet kids who lost their legs or were otherwise badly injured, I am
reminded of that cost. Nobody wants more than me to be able to bring that war to a close in a
way that makes sure that region is not used as a base for terrorist attacks against the United
States. But what we have to do is see this process through. Starting July of 2011, we will begin a
transition process, and if the strategy we're engaged in isn't working, we're going to keep on reexamining it until we make sure that we've got a strategy that does work.

Number one, this is very hard stuff. I knew it was hard a year ago, and I suspect a year from
now, I will conclude that it's still hard, and it's messy. Number two, when you tick off these
metrics that have quote-unquote "failed" well, they haven't failed yet. They haven't
succeeded yet. We've made progress in terms of creating a line of security around Kandahar,
but there's no doubt that Kandahar is not yet a secure place any more than Mosul or Fallujah
were secure in certain phases of the Iraq War.
I will also agree that Afghanistan is harder than Iraq. This is the second-poorest country in the
world. You've got no tradition of a civil service or bureaucracy that is effective countrywide. We
have been very successful in taking out the middle ranks of the Taliban. We have been very
successful in recruiting and beginning to train Afghan security forces. There are elements that
are working, and there are elements that are not working.
Keep in mind that the decision I have to make is always, "If we're not doing this, then what
does that mean? What are the consequences?" I don't know anybody who has examined the
region who thinks that if we completely pulled out of Afghanistan, the Karzai regime collapsed,
Kabul was overrun once again by the Taliban, and Sharia law was imposed throughout the
country, that we would be safer, or the Afghan people would be better off, or Pakistan would be
better off, or India would be better off, or that we would see a reduction in potential terrorist
attacks around the world. You can't make that argument.
Some have argued that what we can do is have a smaller footprint in Afghanistan, focus on
counterterrorism activities, but have less boots on the ground. We examined every option that's

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counterterrorism activities, but have less boots on the ground. We examined every option that s
out there. I assure you: With all the problems we've got here at home, and the fact that I have
to sign letters to the family members of every soldier who is killed in Afghanistan, if I can find a
way of reducing the costs to the American taxpayer, and more profoundly, to our young men
and women in uniform, while making sure that we are not rendered much more vulnerable to a
terrorist attack in the future, that's going to be the option that I choose. But no matter what
your ultimate belief is in terms of what will succeed in Afghanistan, it's going to take us several
years to work through this issue.
Ideally, what would have happened was that we didn't go into Iraq. Right after our victory in
2001, if we had focused on rebuilding Afghanistan, and had been in much more direct day-today interaction with Karzai and his government, then we wouldn't find ourselves in this
circumstance.
But you know what: I have to play the cards that I'm dealt. In an ideal world, I wouldn't have
inherited a $1.3 trillion deficit and the worst recession since the Great Depression. But you
work with what's before you.

When Ken Salazar came in, he said to me, "One of my top priorities is cleaning up MMS." It
was no secret. You had seen the kind of behavior in that office that was just over-the-top, and
Ken did reform the agency to eliminate those core ethical lapses the drugs, the other
malfeasance that was reported there. What Ken would admit, and I would admit, and what we
both have to take responsibility for, is that we did not fully change the institutional conflicts
that were inherent in that office. If you ask why did we not get that done, the very simple
answer is that this is a big government with a lot of people, and changing bureaucracies and
agencies is a time-consuming process. We just didn't get to it fast enough.
Having said that, the person who was put in charge of MMS was fired. We brought in Michael
Bromwich, who by every account is somebody who is serious about cleaning up that agency.
We are committed to making sure that that place works the way it is supposed to. But when I
have somebody like Ken Salazar, who has been an outstanding public servant, who takes this
stuff seriously, who bleeds when he sees what was happening in the Gulf, and had started on a
path of reform but just didn't get there as fast on every aspect of it as needed to be, I had to just
let him know, "You're accountable, you're responsible, I expect you to change it." I have
confidence that he can change it, and I think he's in the process of doing so.

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Interv
Victor
(Oct. 2

Galler
the Ye

Galler
Politic

What I would agree with is that climate change has the potential to have devastating effects on
people around the globe, and we've got to do something about it. In order to do something
about it, we're going to have to mobilize domestically, and we're going to have to mobilize
internationally.
During the past two years, we've not made as much progress as I wanted to make when I was
sworn into office. It is very hard to make progress on these issues in the midst of a huge
economic crisis, because the natural inclination around the world is to say, "You know what?
That may be a huge problem, but right now what's a really big problem is 10 percent
unemployment," or "What's a really big problem is that our businesses can't get loans." That
diverted attention from what I consider to be an urgent priority. The House of Representatives
made an attempt to deal with the issue in a serious way. It wasn't perfect, but it was serious.
We could not get 60 votes for a comparable approach in the Senate.
One of my top priorities next year is to have an energy policy that begins to address all facets of
our overreliance on fossil fuels. We may end up having to do it in chunks, as opposed to some
sort of comprehensive omnibus legislation. But we're going to stay on this because it is good for
our economy, it's good for our national security, and, ultimately, it's good for our environment.
Understand, though, that even in the absence of legislation, we took steps over the past two
years that have made a significant difference. I will give you one example, and this is an
example where sometimes I think the progressive community just pockets whatever we do,
takes it for granted, and then asks, "Well, why didn't you get this done?"
We instituted the first increase in fuel-efficiency standards in this country in 30 years. It used
to be that California would have some very rigorous rule, and then other states would have
much weaker ones. Now we've got one rule. Not only that, it used to be that trucks weren't
covered, and there were all kinds of loopholes that's how SUVs were out there getting eight
miles a gallon. Now everybody's regulated not only cars, but trucks. We did this with the
agreement of the auto industry, which had never agreed to it before, we did it with the auto
workers, who had never agreed to it before. We are taking the equivalent of millions of cars off
the road, when it comes to the amount of greenhouse gases that are produced.
Is it enough? Absolutely not. The progress that we're making on renewable energy, the progress

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g
y
p g
g
gy,
p g
that we're making on retrofitting buildings and making sure that we are reducing electricity use
all those things, cumulatively, if we stay on it over the next several years, will allow us to
meet the target that I set, which would be around a 17 percent reduction in our greenhouse
gases.
But we're going to have to do a lot more than that. When I talk to [Energy Secretary] Steven
Chu, who, by the way, was an unsung hero in the Gulf oil spill this guy went down and
helped design the way to plug that hole with BP engineers nobody's a bigger champion for
the cause of reducing climate change than he is. When I ask him how we are going to solve this
problem internationally, what he'll tell you is that we can get about a third of this done through
efficiencies and existing technologies, we can get an additional chunk through some sort of
pricing in carbon, but ultimately we're going to need some technological breakthroughs. So the
investments we're making in research and development around clean energy are also going to
be important if we're going to be able to get all the way there. Am I satisfied with what we've
gotten done? Absolutely not.

Yes. Not only can I foresee it, but I am committed to making sure that we get an energy policy
that makes sense for the country and that helps us grow at the same time as it deals with
climate change in a serious way. I am just as committed to getting immigration reform done.
I've been here two years, guys. And one of the things that I just try to remember is that if we
have accomplished 70 percent of what we committed to in the campaign, historic legislation,
and we've got 30 percent of it undone well, that's what the next two years is for, or maybe the
next six.

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Interv
Victor
(Oct. 2

Galler
the Ye

Galler
Politic

Understandably, everybody has a great sense of urgency about these issues. But one of the
things that I constantly want to counsel my friends is to keep the long view in mind. On social
issues, something like "don't ask, don't tell." Here, I've got the Secretary of Defense and the
Joint Chiefs of Staff both committed to changing the policy. That's a big deal.

Now, I am also the commander in chief of an armed forces that is in the midst of one war and
wrapping up another one. So I don't think it's too much to ask, to say "Let's do this in an
orderly way" to ensure, by the way, that gays and lesbians who are serving honorably in our
armed forces aren't subject to harassment and bullying and a whole bunch of other stuff once
we implement the policy. I use that as an example because on each of these areas, even those
where we did not get some grand legislative victory, we have made progress. We have moved in
the right direction.
When people start being concerned about, "You haven't closed Guantnamo yet," I say, listen,
that's something I wanted to get done by now, and I haven't gotten done because of
recalcitrance from the other side. Frankly, it's an easy issue to demagogue. But what I have
been able to do is to ban torture. I have been able to make sure that our intelligence agencies
and our military operate under a core set of principles and rules that are true to our traditions
of due process. People will say, "I don't know you've got your Justice Department out there
that's still using the state-secrets doctrine to defend against some of these previous actions."
Well, I gave very specific instructions to the Department of Justice. What I've said is that we
are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other
hand, there are occasions where I've got to protect operatives in the field, their sources and
their methods, because if those were revealed in open court, they could be subject to very great
danger. There are going to be circumstances in which, yes, I can't have every operation that
we're engaged in to deal with a very real terrorist threat published in Rolling Stone.
These things don't happen overnight. But we're moving in the right direction, and that's what
people have to keep in mind.

Over the past two years, what I probably anticipated but you don't fully appreciate until you're
in the job, is something I said earlier, which is if a problem is easy, it doesn't hit my desk. If
there's an obvious solution, it never arrives here somebody else has solved it a long time ago.
The issues that cross my desk are hard and complicated, and oftentimes involve the clash not of
right and wrong, but of two rights. And you're having to balance and reconcile against
competing values that are equally legitimate.
What I'm very proud of is that we have, as an administration, kept our moral compass, even as
we've worked through these very difficult issues. Doesn't mean we haven't made mistakes, but I
think we've moved the country in a profoundly better direction just in the past two years.

My iPod now has about 2,000 songs, and it is a source of great pleasure to me. I am probably

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still more heavily weighted toward the music of my childhood than I am the new stuff. There's
still a lot of Stevie Wonder, a lot of Bob Dylan, a lot of Rolling Stones, a lot of R&B, a lot of
Miles Davis and John Coltrane. Those are the old standards.
A lot of classical music. I'm not a big opera buff in terms of going to opera, but there are days
where Maria Callas is exactly what I need.
Thanks to Reggie [Love, the president's personal aide], my rap palate has greatly improved.
Jay-Z used to be sort of what predominated, but now I've got a little Nas and a little Lil Wayne
and some other stuff, but I would not claim to be an expert. Malia and Sasha are now getting
old enough to where they start hipping me to things. Music is still a great source of joy and
occasional solace in the midst of what can be some difficult days.

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the Ye

Galler
Politic

Here's what I love about Dylan: He was exactly as you'd expect he would be. He wouldn't come
to the rehearsal; usually, all these guys are practicing before the set in the evening. He didn't
want to take a picture with me; usually all the talent is dying to take a picture with me and
Michelle before the show, but he didn't show up to that. He came in and played "The Times
They Are A-Changin'." A beautiful rendition. The guy is so steeped in this stuff that he can just
come up with some new arrangement, and the song sounds completely different. Finishes the
song, steps off the stage I'm sitting right in the front row comes up, shakes my hand, sort
of tips his head, gives me just a little grin, and then leaves. And that was it then he left. That
was our only interaction with him. And I thought: That's how you want Bob Dylan, right? You
don't want him to be all cheesin' and grinnin' with you. You want him to be a little skeptical
about the whole enterprise. So that was a real treat.
Having Paul McCartney here was also incredible. He's just a very gracious guy. When he was
up there singing "Michelle" to Michelle, I was thinking to myself, "Imagine when Michelle was
growing up, this little girl on the South Side of Chicago, from a working-class family." The
notion that someday one of the Beatles would be singing his song to her in the White House
you couldn't imagine something like that.

Whenever I think about my wife, she can choke me up. My wife and my kids, they'll get to me.
[Signaled by his aides, the president brings the interview to a close and leaves the Oval Office.
A moment later, however, he returns to the office and says that he has one more thing to add.
He speaks with intensity and passion, repeatedly stabbing the air with his finger.]
One closing remark that I want to make: It is inexcusable for any Democrat or progressive right
now to stand on the sidelines in this midterm election. There may be complaints about us not
having gotten certain things done, not fast enough, making certain legislative compromises.
But right now, we've got a choice between a Republican Party that has moved to the right of
George Bush and is looking to lock in the same policies that got us into these disasters in the
first place, versus an administration that, with some admitted warts, has been the most
successful administration in a generation in moving progressive agendas forward.
The idea that we've got a lack of enthusiasm in the Democratic base, that people are sitting on
their hands complaining, is just irresponsible.
Everybody out there has to be thinking about what's at stake in this election and if they want to
move forward over the next two years or six years or 10 years on key issues like climate change,
key issues like how we restore a sense of equity and optimism to middle-class families who
have seen their incomes decline by five percent over the last decade. If we want the kind of
country that respects civil rights and civil liberties, we'd better fight in this election. And right
now, we are getting outspent eight to one by these 527s that the Roberts court says can spend
with impunity without disclosing where their money's coming from. In every single one of
these congressional districts, you are seeing these independent organizations outspend
political parties and the candidates by, as I said, factors of four to one, five to one, eight to one,
10 to one.
We have to get folks off the sidelines. People need to shake off this lethargy, people need to
buck up. Bringing about change is hard that's what I said during the campaign. It has been
hard, and we've got some lumps to show for it. But if people now want to take their ball and go
home, that tells me folks weren't serious in the first place.
If you're serious, now's exactly the time that people have to step up.
The is an article from the October 15, 2010 issue of Rolling Stone, available on newsstands on
October 1, 2010.

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Exhibit B

JCS Speech: Testimony Regarding DoD 'Dont Ask, Dont Tell' Policy
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JCS Speech
Testimony Regarding DoD 'Dont Ask, Dont Tell' Policy
As Delivered by Secretary of Defense, Robert M. Gates and Adm. Mike Mullen, chairman of
the Joint Chiefs of Staff , Dirksen Senate Office Building, Washington, D.C. Tuesday, February 02, 2010

SEN. LEVIN: (Strikes gavel.) The committee is now going to receive testimony from our
senior leadership in the Department of Defense as we begin the task of addressing the
dont ask, dont tell policy on gays in the military.
I believe that ending the policy would improve our militarys capability and reflect our
commitment to equal opportunity. I do not find the arguments that were used to justify
dont ask, dont tell convincing when it took effect in 1993, and they are less so now. I
agree with what President Obama said in his State of the Union Address, that we
should repeal this discriminatory policy.
In the latest Gallup poll, the American public overwhelmingly supports allowing gays
and lesbians to serve openly in the military. Sixty-nine percent of Americans are
recorded as supporting their right to serve, and many in fact are serving. As former
chairman of the Joint Chiefs, Gen. John Shalikashvili, said and he supports ending
the policy a majority of troops already believe that they serve alongside gay or lesbian
colleagues. One recent study estimated that 66,000 gays and lesbians are serving
today, at constant risk of losing their chance to serve.
Other nations have allowed gay and lesbian service members to serve in their militaries
without discrimination and without impact on unit cohesion or morale. A comprehensive
study on this was conducted by RAND in 1993. RAND researchers reported on the
positive experiences of Canada, France, Germany, Israel, and The Netherlands and
Norway, all of which allowed known homosexuals to serve in their armed forces. Sen.
McCain and I have asked the Department of Defense to update the 1993 report.
Ending this discriminatory policy will contribute to our militarys effectiveness. To take
just one example, dozens of Arabic and Farsi linguists have been forced out of the
military under dont ask, dont tell, at a time when our need to understand those
languages has never been greater. Thousands of troops 13,000, by one estimate
have been forced to leave the military under the current policy. That number includes
many who could help the military complete some particularly difficult and dangerous
missions.
I have long admired the merit-based system of advancement employed by the U.S.
military that allows servicemen and women of varied backgrounds to advance to
positions of high leadership. An Army is not a democracy; it is a meritocracy, where
success depends not on who you are, but on how well you do your job. Despite its
necessarily undemocratic nature, our military has helped lead the way in areas of
fairness and anti-discrimination. It has served as a flagship for American values and
aspirations, both inside the United States and around the world.
We will hold additional hearings to hear from various points of view and approaches on
this matter. This committee will hold a hearing on February 11th, when we will hear
from an independent panel. The service secretaries and service chiefs will all be
testifying before this committee during the month of February on their various budgets,
and they of course will be open to questions on this subject as well during their
testimony.
My goal will be to move quickly but deliberatively to maximize the opportunity for all
Americans to serve their country, while addressing any concerns that may be
raised. We should end dont ask, dont tell, and we can and should do it in a way that
honors our nations values while making us more secure.
My entire statement will be made part of the record. A statement of Sen. Gillibrand will
also be inserted in the record following the statement of Sen. McCain.
Sen. McCain.
SEN. MCCAIN: Thank you very much, Mr. Chairman. And I want to thank Secretary
Gates and Adm. Mullens (sic) (for whats ?) turning into a very long morning for them,
and we appreciate your patience and your input on this very, very important issue.
We meet to consider the dont ask, dont tell policy, policy that the president has made
clear, most recently last week in his State of the Union Address, that he wants
Congress to repeal. This would be a substantial and controversial change to a policy

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that has been successful for two decades. It would also present yet another challenge
to our military at a time of already tremendous stress and strain.
Our men and women in uniform are fighting two wars, guarding the front lines against a
global terrorist enemy, serving and sacrificing on battlefields far from home, and
working to rebuild and reform the force after more than eight years of conflict.
At this moment of immense hardship for our armed services, we should not be seeking
to overturn the dont ask, dont tell policy.
I want to make one thing perfectly clear up front. Im enormously proud of and thankful
for every American who chooses to put on the uniform of our nation and serve at this
time of war. I want to encourage more of our fellow citizens to serve and to open up
opportunities to do so. Many gay and lesbian Americans are serving admirably in our
armed forces, even giving their lives so that we and others can know the blessings of
peace. I honor their sacrifice, and I honor them.
Our challenge is how to continue welcoming this service amid the vast complexities of
the largest, most expensive, most well-regarded and most critical institution in our
nation, our armed forces.
This is an extremely difficult issue, and the Senate vigorously debated it in 1993. We
heard from the senior uniformed and civilian leaders of our military on eight occasions
before this committee alone. When Congress ultimately wrote the law, we included
important findings that did justice to the seriousness of the subject. I would ask without
objection, Mr. Chairman, that a copy of the statute including those findings be included
in the record.
SEN. LEVIN: It will be.
SEN. MCCAIN: I wont quote all those findings. But three points must be made. First,
Congress found in the law that the militarys mission to prepare for and conduct combat
operations requires service men and women to accept living and working conditions
that are often spartan and characterized by forced intimacy with little or no privacy.
Second, the law finds that civilian life is fundamentally different from military life, which
is characterized by its own laws, rules, customs and traditions, including many
restrictions on personal conduct that would not be tolerated in civil society.
Finally, the law finds that the essence of military capability is good order and unit
cohesion, and that any practice which puts those goals at unacceptable risk can be
restricted.
These findings were the foundation of dont ask, dont tell. And Im eager to hear from
our distinguished witnesses what has changed since these findings were written, such
that the law they supported can now be repealed.
Has this policy been ideal? No, it has not. But it has been effective. It has helped to
balance a potentially disruptive tension between the desires of a minority and the
broader interests of our all-volunteer force. It is well understood and predominantly
supported by our fighting men and women. It reflects, as I understand them, the
preferences of our uniformed services. It has sustained unit cohesion and unit morale
while still allowing gay and lesbian Americans to serve their country in uniform. And it
has done all of this for nearly two decades.
Mr. Chairman, there this is a letter signed by over 1,000 former general and flag
officers who have weighed in on this issue. I think that we all in Congress should pay
attention and benefit from the experience and knowledge of over a thousand former
general officers and flag officers, and which where they say: We firmly believe that the
this law, which Congress passed to protect order good order, discipline and morale
in the unique environment of the armed forces, deserves continued support.
And so I think we should also pay attention to those who have served, who can speak
more frankly on many occasions than those who are presently serving.
I know that any decision Congress makes about the future of this law will inevitably
leave a lot of people angry and unfulfilled. There are patriotic and well-meaning
Americans on each side of this debate. And Ive heard their many passionate
concerns. Ultimately though, numerous military leaders tell me that dont ask, dont tell
is working, and that we should not change it now. I agree.
I would welcome a report done by the Joint Chiefs of Staff based solely on military
readiness, effectiveness and needs and not on politics that would study the dont
ask, dont tell policy, that would consider the impact of its repeal, on our armed
services, and that would offer their best military advice on the right course of action.

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We have an all-volunteer force. It is better trained, more effective and more professional
than any military in our history. And today, that force is shouldering a greater global
burden than at any time in decades.
We owe our lives to our fighting men and women. And we should be exceedingly
cautious, humble and sympathetic when attempting to regulate their affairs. Dont ask,
dont tell has been an imperfect but effective policy. And at this moment when were
asking more of our military than at any time in recent memory, we should not repeal this
law.
Thank you, Mr. Chairman.
SEN. LEVIN: Thank you, Sen. McCain.
Secretary Gates.
SEC. GATES: Mr. Chairman, last week during the State of the Union Address, the
president announced he will work with Congress this year to repeal the law known as
dont ask, dont tell. He subsequently directed the Department of Defense to begin the
preparations necessary for a repeal of the current law and policy. I fully support the
presidents decision.
The question before us is not whether the military prepares to make this change but
how we must how we best prepare for it. We have received our orders from the
commander in chief and we are moving out accordingly. However we can also take this
process only so far, as the ultimate decision rests with you, the Congress.
I am mindful of the fact, as are you, that unlike the last time this issue was
considered by the Congress more than 15 years ago, our military is engaged in two
wars that have put troops and their families under considerable stress and strain. I am
mindful, as well, that attitudes toward homosexuality may have changed considerably,
both in society generally and in the military, over the intervening years.
To ensure that the department is prepared should the law be changed, and working in
close consultation with Adm. Mullen, I have appointed a high-level working group within
the department that will immediately begin a review of the issues associated with
properly implementing a repeal of the dont ask, dont tell policy. The mandate of this
working group is to thoroughly, objectively and methodically examine all aspects of this
question, and produce its finding and recommendations in the form of an
implementation plan by the end of this calendar year.
A guiding principle of our efforts will be to minimize disruption and polarization within
the ranks, with special attention paid a special attention paid to those serving on the
front lines. I am confident this can be achieved.
The working group will examine a number of lines of study, all of which will proceed
simultaneously. First, the working group will reach out to the force to authoritatively
understand their views and attitudes about the impact of repeal. I expect that the same
sharp divisions that characterize the debate over these issues outside of the military will
quickly seek to find their way into this process, particularly as it pertains to what are the
true views and attitudes of our troops and their families. I am determined to carry out
this process in a way that establishes objective and reliable information on this
question, with minimal influence by the policy or political debate. It is essential that we
accomplish this in order to have the best possible analysis and information to guide the
policy choices before the department and the Congress.
Second, the working group will undertake a thorough examination of all the changes to
the departments regulations and policies that may have to be made. These include
potential revisions to policies on benefits, base housing, fraternization and misconduct,
separations and discharges, and many others.
We will enter this examination with no preconceived views, but a recognition that this
will represent a fundamental change in personnel policy, one that will require that we
provide our commanders with the guidance and tools necessary to accomplish this
transition successfully and with minimum disruption to the departments critical
missions.
Third, the working group will examine the potential impacts of a change in the law on
military effectiveness, including how a change might affect unit cohesion, recruiting and
retention, and other issues crucial to the performance of the force. The working group
will develop ways to mitigate and manage any negative impacts.
These are, generally speaking, the broad areas we have identified for study under this
review. We will, of course, continue to refine and expand these as we get into this

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process or engage in discussion with the Congress and other sources. In this regard,
we expect that the working group will reach out to outside experts with a wide variety of
perspectives and experience. To that end, the department will, as requested by the
committee, ask the RAND Corporation to update their study from 1993 on the impact of
allowing homosexuals to serve openly in the military.
We also have received some helpful suggestions on how this outside review might be
expanded to cover a wide swath of issues. This will be a process that will be open to
views and recommendations from a wide variety of sources, including, of course,
members of Congress.
Mr. Chairman, I expect that our approach may cause some to wonder why it will take
the better part of the year to accomplish the task. Weve looked at a variety of options,
but when you take into account the overriding imperative to get this right and minimize
disruption to a force that is actively fighting two wars and working through the stress of
almost a decade of combat, then it is clear to us we must proceed in a manner that
allows for the thorough examination of all issues.
An important part of this process is to engage our men and women in uniform and their
families over this period since, after all, they will ultimately determine whether or not we
make this transition successfully.
To ensure that this process is able to accomplish its important mission, Chairman
Mullen and I have determined that we need to appoint the highest-level officials to
carry it out. Accordingly, I am naming the Department of Defense general counsel, Jay
Johnson, and Gen. Carter Ham, commander of U.S. Army Europe, to serve as the cochairs for this effort.
Simultaneous with launching this process, I have also directed the department to
quickly review the regulations used to implement the current dont ask, dont tell law,
and within 45 days present to me recommended changes to those regulations that
within existing law will enforce this policy in a fairer manner.
You may recall that I asked the departments general counsel to conduct a preliminary
review of this matter last year. Based on that preliminary review, we believe that we
have a degree of latitude within the existing law to change our internal procedures in a
manner that is more appropriate and fair to our men and women in uniform. We will now
conduct a final, detailed assessment of this proposal before proceeding.
Mr. Chairman, Sen. McCain, members of the committee, the Department of Defense
understands that this is a very difficult, and in the minds of some controversial policy
question. I am determined that we in the department carry out this process
professionally, thoroughly, dispassionately, and in a manner that is responsive to the
direction of the president and to the needs of the Congress as you debate and consider
this matter.
However, on behalf of the men and women in uniform and their families, I also ask you
to work with us to, insofar as possible, keep them out of the political dimension of this
issue. I am not asking for you not to do your jobs fully and with vigor, but rather, as this
debate unfolds, you keep the impact it will have on our forces firmly in mind.
Thank you for this opportunity to lay out our thinking on this important policy
question. We look forward to working with the Congress and hearing your ideas on the
best way ahead.
SEN. LEVIN: Thank you.
Adm. Mullen.
ADM. MULLEN: Thank you, Mr. Chairman, Sen. McCain. And thank you for giving me
the opportunity to discuss with you this very important matter.
The chiefs and I are in complete support of the approach that Secretary Gates has
outlined. We believe that any implementation plan for a policy permitting gays and
lesbians to serve openly in the armed forces must be carefully derived, sufficiently
through sufficiently thorough, and thoughtfully executed.
Over these last few months, we have reviewed the fundamental premises behind dont
ask, dont tell, as well as its application in practice over the last 16 years. We
understand perfectly the presidents desire to see the law repealed, and we owe him
our best military advice about the impact of such a repeal and the manner in which we
would implement a change in policy.
The chiefs and I have not yet developed that advice, and would like to have the time
to do so in the same thoughtful, deliberate fashion with which the president has made it

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clear he wants to proceed. The review the review group Secretary Gates has ordered
will no doubt give us that time and an even deeper level of understanding. We look
forward to cooperating with and participating in this review to the maximum extent
possible, and we applaud the selection of Mr. Johnson and Gen. Ham to lead it. Both
are men of great integrity, great experience, and have our complete trust and
confidence.
Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing
gays and lesbians to serve openly would be the right thing to do. No matter how I look
at this issue, I cannot escape being troubled by the fact that we have in place a policy
which forces young men and women to lie about who they are in order to defend their
fellow citizens. For me personally, it comes down to integrity theirs as individuals and
ours as an institution. I also believe that the great young men and women of our military
can and would accommodate such a change. I never underestimate their ability to
adapt.
But I do not know this for a fact, nor do I know for a fact how we would best make such
a major policy change in a time of two wars. That there will be some disruption in the
force I cannot deny. That there will be legal, social, and perhaps even infrastructure
changes to be made certainly seem plausible. We would all like to have a better handle
on these types of concerns, and this is what our review will offer.
We would also do well to remember that this is not an issue for the military leadership to
decide. The American people have spoken on this subject through you, their elected
officials, and the result is the law and the policy that we currently have.
We will continue to obey that law, and we will obey whatever legislative and executive
decisions come out of this debate. The American people may yet have a different
view. You may have a different view. I think thats important, and its important to have
that discussion.
Frankly, there are those on both sides of this debate who speak as if there is no debate;
as if theres nothing to be learned or reflected upon. I hope we can be more thoughtful
than that. I expect that we will be more thoughtful than that.
The chiefs and I also recognize the stress our troops and families are under, and I have
said many times before, should the law change, we need to move forward in a manner
that does not add to that stress. Weve got two wars going on, a new strategy in
Afghanistan, and remaining security challenges in Iraq. Were about to move forward
under a new Quadrennial Defense Review. We still have budget concerns in a
struggling economy. And we have a host of other significant security commitments
around the globe. Our plate is very full. And while I believe this is an important issue, I
also believe we need to be mindful as we move forward of other pressing needs in our
military.
What our young men and women and their families want what they deserve is that
we listen to them and act in their best interests. What the citizens we defend want to
know what they deserve to know is that their uniformed leadership will act in a way
that absolutely does not place in peril the readiness and effectiveness of their military.
I can tell you that I am 100 percent committed to that. Balance, Mr. Chairman balance
and thoughtfulness is what we need most right now. Its what the president has
promised us, and its what we ask of you in this body.
Thank you.
SEN. LEVIN: Thank you very much, Admiral.
So that everyone has a chance within a reasonable period of time, were just going to
have a three-minute first round.
SEN. MCCAIN: Mr. Chairman, we need more than three minutes. We need more than
three minutes.
SEN. LEVIN: Well have a try to have a second round, then. We have to also have a
schedule here. So well go to a second round if we can fit that into Secretary Gates
schedule. If not, we will pick this up at a later time.
The secretary well, now, this schedule was shared with everybody here now, and so
SEN. MCCAIN (?): Not with me.
SEN. LEVIN: It was indeed shared.
SEN. MCCAIN: Youre the chairman.

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SEN. LEVIN: Mr. Secretary, The Washington Post I think this morning reported that the
military services will not pursue any longer disciplinary action against gays and lesbian
servicemembers whose orientation is revealed by third parties. Is that one of the is
that one of the degrees of latitude within existing law that youre looking at?
SEC. GATES: Mr. Chairman, a preliminary assessment is that and this fits within this
45-day review that I mentioned in my prepared statement the preliminary assessment
is that we can do the following within the confines of the existing law. We can raise the
level of the officer who is authorized to initiate an inquiry. We can raise the level of the
officer who conducts the inquiry. We can raise the bar on what constitutes credible
information to initiate an inquiry. We can raise the bar on what constitutes a reliable
person on whose word an inquiry can be initiated.
Overall, we can reduce the instances in which a servicemember who is trying to serve
the country honorably is outed by a third person with a motive to harm the
servicemember. And we also have to devise new rules and procedures in light of the
appeals court decision in Witt versus the Department of the Air Force for the areas of
the country covered by the appellate court.
So I would say all of these matters are those that will be reviewed within this 45-day
period. So its a little more complicated than The Washington Post conveyed.
SEN. LEVIN: All right. But all of those are possibilities?
SEC. GATES: Yes, sir.
SEN. LEVIN: Now, would you, assuming it even if it requires a legislation, would
you support a moratorium on discharges under dont ask, dont tell during the course of
this up to year-long assessment that the department is going to be making?
SEC. GATES: I would have to look into that because the problem the problem that we
have is that all of the issues that both Adm. Mullen and I described in terms of what we
have to look into in terms of the effect on the force, in terms of everything else, is what
we need to examine before I could answer that question.
SEN. LEVIN: All right. Well, youre going to be examining the other points that youre
looking at, the other flexibilities.
SEC. GATES: Yes.
SEN. LEVIN: Would you add this to the questions youre going to look at and let us
know promptly
SEC. GATES: Sure.
SEN. LEVIN: as to whether you would support the a moratorium pending this period
on discharges. That doesnt mean you couldnt discharge at the end of the period, but
there would be a moratorium.
SEC. GATES: We will look at it, Mr. Chairman. I would tell you that the advice that I
have been given is that the current law would not permit that, but
SEN. LEVIN: Im saying would you support a change in the current law, if necessary, in
order to permit that? Thats what we need to hear from you on.
Sen. McCain.
SEN. MCCAIN: Im deeply disappointed in your statement, Secretary Gates. I was
around here in 1993 and was engaged in the debate. And what we did in 1993 is we
looked at the issue and we looked at the effect on the military, and then we reached a
conclusion, and then we enacted it into law.
Your statement is, the question before us is not whether the military prepares to make
this change, but how we best prepare for it. It would be far more appropriate, I say with
great respect, to determine whether repeal of this law is appropriate, and what effects it
would have on the readiness and effectiveness of the military, before deciding on
whether we should repeal the law or not. And fortunately, it is an act of Congress, and it
requires the agreement of Congress in order to repeal it. And so your statement
obviously is one which is clearly biased, without the view of Congress being taken into
consideration.
Adm. Mullen, youre the principal military adviser to the president. Do you and you
have to consult with and seek the advice of the other members of the Joint Chiefs of
Staff and the combatant commanders. What, in your view, are the opinions of the other

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members of the Joint Chiefs and combatant commanders about changing this policy?
ADM. MULLEN: Sen. McCain, as the chairman indicated earlier, they will obviously be
out in their posture hearings in the near future, and I would certainly defer to them in
terms of exactly how theyre going to
SEN. MCCAIN: Well, in the near future in the near future Id like you to ask them and
we could have it on the record what their position is.
ADM. MULLEN: Yes, sir.
SEN. MCCAIN: In the near future.
ADM. MULLEN: Yes, sir.
SEN. MCCAIN: I would like it as soon as possible.
ADM. MULLEN: Ive actually, Ive worked very closely with them over the last months
in terms of understanding what their what their concerns and what our overall
concerns are, and I would summarize them by saying its really important for us to us
for us to understand that if this policy changes, if the law changes, whats the impact,
and how we would implement it.
And Secretary Gates point about the study is to really understand objectively the
impact on our on our troops and on their forces, and that is their biggest concern.
SEC. GATES: And I would say, Sen. McCain, I absolutely agree that the how the
Congress acts on this is dispositive.
SEN. MCCAIN: Well, I hope you will pay attention to the views of over a thousand
retired flag and general officers.
What kind Mr. Secretary, what kinds of partnerships or unions would the military be
prepared to recognize by law in the event that this dont ask, dont tell is repealed?
SEC. GATES: Thats one of the many issues that I think we have to look at, Senator.
SEN. MCCAIN: So again, you are embarking on saying its not whether the military
prepares to make the change, but how we best prepare for it, without ever hearing from
members of Congress, without hearing from the members of the Joint Chiefs, and of
course without taking into considerations consideration all the ramifications of this
law. Well, Im happy to say that we still have a Congress of the United States that would
have to would have to pass a law to repeal dont ask, dont tell despite your efforts to
repeal it in many respects by fiat.
Thank you, Mr. Chairman.
SEN. LEVIN: Thank you, Sen. McCain.
Sen. Udall.
SEN. UDALL: Thank you, Mr. Chairman. Thank you for holding this very important
hearing.
I want to acknowledge, Secretary Gates, the work youve done to put a plan in
place. And Adm. Mullen, I think the centerpiece of your statement will be long
remembered for the courage and the integrity with which you outlined your own
personal beliefs and how we can proceed.
Im proud to hail from a region of the country the Rocky Mountain West where we
have a live-and-let-live attitude. Some people would call it small-L
libertarianism. Peoples personal lives, the choices that people make, are not the
governments business.
And I cant help but think about the great Arizonan. I grew up in Arizona. My father was
an Arizonan, my mother was a Coloradan. I have the great honor to represent Colorado
now. But Barry Goldwater once said, you dont have to be straight to shoot
straight. And thats the opportunity that we have here today as the Congress and the
Pentagon moves forward.
Ive got a few concerns Id like to share in the couple of minutes that I have, and Ill
pepper my comments with questions, and hopefully there will be time for you all to
respond.
There have been a lot of studies done, Mr. Secretary RAND, and theres a recent

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study in the Joint Force Quarterly. Its not clear to me that the study group needs a full
year to study implementation and transition. I want to just put that out there.
I want to ensure that the focus of the group is on how to implement repeal of the policy,
not whether. And I want to ask you to assure me that the endpoint of the study would be
a road map to implementing repeal, and that the Congress would then be in a position
to take legislative action that the Pentagon as a whole could support.
And then, before you answer, Id like your reaction to a legislative proposal that you
may have seen. It would be to write and to repeal legislation for the period of time you
suggest you need say, one year while legislating that at the end of that time we
would have finality in other words, a complete end to dont ask, dont tell. During the
year-long transition, the DOD would have full authority and discretion with respect to
dont ask, dont tell investigations and discharges. Language like this would certainly
make me much more comfortable, since I want, and so many others, a clear path to full
repeal, and Im not sure I see finality in the study.
Again, thank you, gentlemen, and hopefully theres a little bit of time left for you to
answer.
SEC. GATES: Well, I think the purpose of the examination that were undertaking,
frankly, is to inform the decision-making of the Congress and the nature of whatever
legislation takes place. Its also, frankly, to be prepared to begin to implement any
change in the law. We obviously recognize that this is up to Congress, and my view is,
frankly, that its critical that this matter be settled by a vote of the Congress.
The study is intended to prepare us along those lines, so that we understand all of
the implications involved. Frankly, there have been a lot of studies done, but there has
not been a study done by the military of this, and this is the kind of thing that Adm.
Mullen was talking about.
And I would just say, with respect to your second point, that I think we would regard, if
legislation is passed repealing dont ask, dont tell, we would feel it very important that
we be given some period of time for that implementation, at least a year.
ADM. MULLEN: Senator if I may, just the only thing I would comment about, all the
studies and all the polls, I would just urge that everybody thats going to be involved in
this look at those studies and polls deliberately and what they actually looked at
specifically. And so just reemphasize what the secretary said: there really hasnt been
any significant statistically significant and objective survey of our people and their
families. And that gets to the Chiefs concern and mine as well, which really is engaging
them in a way that we really understand their views on this, and that just hasnt been
done. And as urgently as some would like this to happen, its just going to take some
time to do that.
SEN. LEVIN: Thank you, Sen. Udall.
Sen. Sessions.
SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman. And I know this is an
important issue. We need to think it through, and every American is entitled to fairness
and justice as we deliberate these issues, and I do think we should do it at a high level.
I would note, however, a bit of a concern that arises from something Sen. McCain
suggested, and that is that the president, as the commander in chief, has announced a
decision, and the secretary of Defense apparently supports that decision. Adm. Mullen
now has declared that he personally believes in this decision. And so then presumably
someone below you will do some work on the policy, whether this is a good policy or
not. So I guess its if it was a trial, we would perhaps raise the undue command
influence defense.
And I think we need an open and objective and a fair evaluation of this. A lot of things
that have been said I would note that are not accurate, at least in my view, at least
misrepresent certain things. One of them is 10,000 people have been dismissed from
the military or voluntarily left from the military under these under this provision, but
thats over 10 years. It would be 1 percent, maybe, if it was one year, less than that
maybe (audio break) so there will be costs.
I noticed and I give the military credit. A lot of people dont know this, Adm. Mullen,
how open the debate and discussion are. Theres an article in the Joint Forces
Quarterly that basically supports this change. It was an award-winning article, and they
raised a lot of different issues, both for and against, and the military welcomed that. And
I salute that. I think thats healthy.
But the one of the points it made is that Charles Moskos, one of the original authors of

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the dont ask, dont tell policy, points out that the number of discharges for voluntary
statements by servicemembers presumably they come forward and say that they are
homosexual accounts for 80 percent of the total. And the number of discharges for
homosexual acts have declined over the years. Do you think thats approximately
correct?
ADM. MULLEN: Sen. Sessions, I think it is approximately correct. But it does go to,
again sort of a fundamental principle with me, which is everybody counts. And part of
the struggle back to the institutional integrity aspect of this, and
SEN. SESSIONS: Well, I know. I appreciate your view.
ADM. MULLEN: and putting individuals in a position that every single day they
wonder whether todays going to be the day, and devaluing them in that regard just is
inconsistent with us as an institution.
I have served with homosexuals since 1968. Sen. McCain spoke to that in his
statement. Everybody in the military has, and we understand that. So it is a number of
things which cumulatively for me, personally, get me to this position.
But I also want to reemphasize what I said, is I am not all-knowing in terms of the
impact of what the change would have, and thats what I want to understand. And its
and any impact, and understanding readiness and effectiveness, is absolutely critical.
SEN. SESSIONS: Well, its pretty clear what your view is. And that will be that will be
clear on all your subordinates. Every single servicemember in uniform would be
qualify for that. And I dont think it that they are required to lie about who they are; I
think thats an overstatement, although I think the rule of dont ask, dont tell has
seemed to work pretty well. And I would note from the Christian Science Monitor here
that the chiefs of the services met with the chairman, Mike Mullen Im quoting from
the article and the consensus seemed to be that the military, fighting two wars and
now responding to a new mission in Haiti, now is not the time to make such a big
change to military policy.
And thats my understanding of the status of things. And I just hope that, as we discuss
it, youll recognize, first, that Congress has made the decision its not yours to make,
and well have to change it if we do change it; and second, you shouldnt use your
power to in any way influence a discussion or evaluation of the issue.
SEC. GATES: Senator I would just say that we cant possibly evaluate the impact on
unit cohesion, on morale, on retention, on recruitment and so on unless we encourage
people to tell us exactly what they think and exactly what their views are, honestly and
as forthrightly as possible. Otherwise, theres no use in doing this at all.
And again, I just cant emphasize enough we understand from the beginning of this that
this must be an act of Congress.
SEN. LEVIN: Thank you
ADM. MULLEN: Sen. Sessions, for me, this is about this is not about command
influence, this is about leadership. And I take that very seriously.
SEN. LEVIN: Thank you.
Sen. Hagan.
SEN. HAGAN: Thank you, Mr. Chairman.
Secretary Gates, I want to say that I applaud your efforts in commissioning a thorough
evaluation of the dont ask, dont tell policy, and how to implement a repeal of the policy
in order to minimize disruption in military readiness. And I was just wondering, within
this study, how will you study how will this study take into account the views of the
combatant commanders in theater in order to minimize any disruption in the military
readiness?
SEC. GATES: The combatant commanders, the service chiefs will all have a part in
this.
The one thing that I have asked is that, as we go through this process, we try to try
not to disrupt or impact the deployed forces, and particularly those in Afghanistan and
Iraq.
They have enough on their minds, and it seems to me we can get the answers that we
need to the questions that need to be asked by not adding to their burden. And so the
one limitation Ive put on this, which obviously does not apply to the combatant

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commanders, is that we and have as little impact on the deployed force as possible.
SEN. HAGAN: And, Mr. Secretary and Adm. Mullen, as we move to end discriminatory
practices within our armed forces, is there any reason to believe that the dedication and
professionalism of our leaders in uniform is based in any way upon their sexual
orientation, and that the morale fitness of our men and women in uniform should be
based upon their sexual orientation? And if not, then on what grounds do you believe
that there remains a need to discriminate based on a servicemembers sexual
orientation?
ADM. MULLEN: Well, I Sen. Hagan, I personally dont think sexual orientation, again,
has a place for these kinds of decisions. Actually, I think theres a gap between that
which we value as a military, specifically the value of integrity, and what our policy is.
But again, thats personally where I am.
I think its really in the review that would take place over the course of the next by the
end of this year that I would look to certainly understand it much more fully and
understand the impact, and if you know, if and when the policy changes, the impact
on our people.
And thats really rather than at the end of this, were to some degree at the beginning
of really trying to understand that. And thats in light of many other opinions on this,
including the opinions of those who have retired, all those things, but it really is what I
need to understand is to get it from our people and their families. And incorporating
that, in addition to all the other requirements that are here, will be the goal of the review
over the next better part of this year.
SEN. HAGAN: Thank you, Mr. Chairman.
SEN. LEVIN: Thank you, Sen. Hagan.
Sen. Wicker.
SEN. WICKER: Thank you, Mr. Chairman.
I too am disappointed with this decision by the administration, but Ill say this for our two
witnesses. They understand the chain of command. I think we understand that elections
have consequences, and these two gentlemen see their charge as moving forward with
the directives of their commander.
I think Secretary Gates said it explicitly in his statement: quote, We have received our
orders from the commander in chief, and we are moving out accordingly. Unquote. So
well have a debate about this, and we will appreciate the information that the
department gathers for us.
Sen. McCain referenced in his statement more than a thousand retired flag and general
officers actually, I think its upwards of 1,160 retired flag and general officers from all
the armed services who have come out against a change in this policy. For my
colleagues, their statement urging continued support for the 1993 law is contained at
www.flagandgeneralofficersforthemilitary.com.
I would commend to the members of this committee an op-ed written by Carl E. Mundy,
Jr., a retired four-star general and former commandant of the U.S. Marine Corps, who
points out who mentions the strong support for the current policy by this
overwhelming number of retired flag and general officers, and points out that certain
findings were made by Congress in support of the 1993 law to ensure clarity concerning
the rationale behind the current statute.
Key findings included that the primary purpose of the armed forces is to prepare and to
prevail in combat not to promote civil rights or social justice or compassion or
individual fairness, but to prepare for and prevail in combat.
Further findings include that success in combat requires military units that are
characterized by high morale, good order and discipline, and unit cohesion; and further,
that one of the most critical elements in combat capability is unit cohesion that is, the
bonds of trust among individual servicemembers.
I would ask, Mr. Chairman, that this op-ed, dated January 12th, 2010, by Gen. Mundy,
be included in the record at this point.
SEN. LEVIN: It will be made part of the record.
SEN. WICKER: So I appreciate the situation that our two witnesses find themselves in,
and I look forward to the debate, and hope that the policy remains. Thank you.

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SEN. LEVIN: Thank you, Sen. Wicker.
Sen. Webb.
SEN. WEBB: Thank you, Mr. Chairman.
Gentlemen, just let me see if we can review the facts here. This is obviously quite an
emotional issue, but its also a legislative issue. My understanding from hearing both of
your statements is, this year period that youre going to take in order to examine the
issues will be followed then by clearer observations about the implications of changing
the law. Would that be a correct way to state it? So youre not coming in here today and
saying, were going to change the law and this is the year that were going to put into
figuring out how to implement the change.
SEC. GATES: Our hope would be that the information we would develop during the
course of this review would help inform the legislative process.
SEN. WEBB: Right. I salute both of you for very careful statements. And Adm. Mullen, I
salute you for the courage of what you said. But I want to also emphasize that you
balanced that, in your statement, saying you dont know whats going to come out of
this. We dont know.
So you know, what were looking for here is an examination of the present law. What is
the most damaging aspect of the present policy? And I think, Adm. Mullen, you made a
very powerful statement in terms of the integrity of the individual as your deciding
factor on your personal view. And what is on the other hand, what is the great value of
this law, if we were to do away with it and move into something else?
And then, again, what are the perils of undoing the law? Where are we going? Do we
would we know we were going in the proper direction? We dont we cant really say
that today.
I think that, when you say that this is something that will ultimately decided be decided
by the Congress, Id also like to emphasize my own agreement with what you have
been saying about how important it is to hear from people who were serving. Because
whether the ultimate decision might be here with the Congress, that decision cant be
made in a proper way without a full and open input from all of those who are
serving. Not just combatant commanders family members, people who are in the
operating units.
And the way that I am hearing this, which I would agree with, is that we have a duty
here in a very proper way to understand the impact of this on operating units, to raise
the level of understanding of the complexity of this issue among the American people
and up here as well as attempting to do fairly with this issue.
So again, I salute you both for a very responsible and careful approach to how we
examine this.
Thank you, Mr. Chairman.
SEN. LEVIN: Thank you very much, Sen. Webb.
Sen. Chambliss.
SEN. SAXBY CHAMBLISS (R-GA): Thank you, Mr. Chairman.
And just as was stated by my friend, Sen. Udall, I think live and let live is not a bad
policy to adhere to and thats what we have in place in the military with dont ask, dont
tell right now.
To you, Secretary Gates and Adm. Mullen, youre in a tough spot and we understand
that. This is an extremely sensitive issue and everybody on this committee, Im
satisfied, is very sensitive to the issue both inside and outside the military.
In the military, it presents entirely different problems than it does in civilian life, because
there is no constitutional right to serve in our armed forces. And today we know weve
got gay and lesbian soldiers serving. Theyve served in the past; theyre going to serve
in the future; and theyre going to serve in a very valiant way.
But the primary purpose of the armed forces is to prepare for and to prevail in combat
should the need arise. Military life is fundamentally different from civilian life in that
military society is characterized by its own laws, rules, customs and traditions
including restrictions on personal behavior that would not be acceptable in civilian
society. Examples include alcohol use, adultery, fraternization and body art. If we
change this rule of dont ask, dont tell, what are we going to do with these other

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issues?
The armed forces must maintain personnel policies that exclude persons whose
presence in the armed forces would create an unacceptable risk to the armed forces
high standards of morale, good order and discipline and unit cohesion. In my opinion,
the presence in the armed forces of persons who demonstrate a propensity or intent to
engage in homosexual acts would very likely create an unacceptable risk to those high
standards of morale, good order and discipline, and effective unit cohesion and
effectiveness. Im opposed to this change and I look forward to a very spirited debate
on this issue, Mr. Chairman.
SEN. LEVIN: Thank you, Sen. Chambliss.
I believe Sen. Burris is next.
SEN. ROLAND BURRIS (D-IL): Thank you, Mr.
SEN. LEVIN: Sen. Burris.
SEN. BURRIS: Thank you, Mr. Chairman.
Id like to extend my deep admiration for our two distinguished leaders in their
position. And not only are you following the direction of the commander in chief, but
Adm. Mullen, you expressed your personal view, which is to be commended.
What we need is a policy that allows any individual who has the integrity and the
commitment to serve this country, to serve this country. We can go back to President
Truman who took the audacity to integrate the services. At one time, my uncles and
members of my race couldnt even serve in the military. And we moved to this point
where theyre some of the best and brightest that weve had generals and even now
the commander in chief is of African-American heritage.
So what were doing here now is not looking at the integrity and the commitment that
individuals can make not based on their sexual orientation, but the defense of this
country. I say the policy needs to be changed; the policy must be changed. And we
must have everyone who is capable, willing and able to volunteer to defend this
country, defend this great American tradition of ours to have the opportunity to serve
regardless to their sexual orientation.
And so based on that, we must continue to have the American spirit and have
individuals who are willing to serve.
I dont have a question, Mr. Chairman. I just have the statement. I hope that well look at
legislation. By the way, the House has drawn up a bill. There are 185 members on this
House bill, which is House Bill 1283. And Im hoping and praying that we will get moving
on this issue, get it beside us and not be wasting the taxpayers time and all of the
energy on something that is so basic in human rights and opportunities for individuals in
this country.
Thank you, Mr. Chairman.
SEN. LEVIN: Thank you very much, Sen. Burris.
Sen. Collins.
SEN. SUSAN COLLINS (R-ME): Thank you, Mr. Chairman. Mr. Chairman, unlike my
colleagues, I do have some questions, rather than just a statement, to ask.
Adm. Mullen, we know that many of our NATO allies allow gays and lesbians to serve
openly and many of these countries have deployed troops who are serving with us in
Afghanistan.
Are you aware of any impact on combat effectiveness by the decision of our NATO
allies to allow gays and lesbians to serve openly?
ADM. MULLEN: Sen. Collins, Ive talked to several of my counterparts in countries
whose militaries allow gays and lesbians to serve openly. And there has been, as they
have told me, no impact on military effectiveness.
SEN. COLLINS: Weve heard today the concerns that if dont ask, dont tell is repealed,
that it would affect unit cohesiveness or morale. Are you aware of any studies, any
evidence that suggests that repealing dont ask, dont tell would undermine unit
cohesion?
ADM. MULLEN: Im not. In fact, the 1993 RAND study focused heavily on unit cohesion

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and that became the principal point put forward by the military leadership at the time
and I understand that.
I understand what it is; I understand what goes into it. And there are theres been no
thorough or comprehensive work done with respect to that aspect since 1993.
And thats part of what needs to be addressed as we move forward over the part of the
over this year.
SEC. GATES: I think I would just underscore that. I mean, part of part of what we
need to do is address a number of assertions that have been made for which we have
no basis in fact.
SEN. COLLINS: Exactly.
SEC. GATES: We need the the purpose of the review that we are undertaking is to
find out what the force what the men and women in our armed forces, and, as Sen.
Webb said, and their families really think about this. And the fact is, at this point, we
dont really know.
SEN. COLLINS: Thank you.
Thank you, Mr. Chairman.
SEN. LEVIN: Thank you very much, Sen. Collins.
Sen. Lieberman is next; and then, assuming nobody else comes in, Sen. McCaskill
would be next; and then Sen. Reed.
Sen. Lieberman.
SEN. LIEBERMAN: Thanks, Mr. Chairman.
I opposed the dont ask, dont tell policy when it was created by this committee in 1993
and I remain opposed to it today, therefore, I support repealing it as soon as
possible. My feeling, stated simply then, was that what mattered most was not how a
member of the military lived his or her private sexual life, but that they were prepared to
risk their lives in defense our country.
And my judgment was that, in a combat situation, a member of the military in a tank or
an MRAP, today is going to care a lot more about the capability and courage of the
soldier next to him than they are about the sexual orientation of that soldier, just as over
the years, as Sen. Burris referred to, they came to care a lot less about the race of the
soldier next to them than about his or her courage or capability.
What I hear and, therefore, Im grateful that the president has said he supports the
repeal of dont ask, dont tell. I thank you, Secretary and Chairman, for saying that the
question now is not whether, but how, and I think, for us, really when we will repeal
dont ask, dont tell.
Am I right that what youre telling us today is that what (youre ?) going to do as soon
as possible, at least within 45, after 45 days is to determine how you can reduce the
impact of the dont ask, dont tell policy within the current state of the law? Is that
correct?
SEC. GATES: Yes, sir. And the numbers the numbers actually have gone down fairly
substantially. They were about 600-and-some in 2008; 428 in 2009. And we dont know
I mean, we cant quantify what the possible changes that Ive talked about here, what
impact they would have on that. But at least it would if we were able to do something
like that, would make these folks less vulnerable to somebody seeking revenge, or
whatever their motives, in terms of trying to wreck somebodys career.
SEN. LIEBERMAN: Am I correct just to ask the question and get it on the record, that
your judgment, as advised by counsel, is that it requires an act of Congress repealing
dont ask, dont tell for the actual policy itself to be ended in the military? You cant do it
by Executive action?
SEC. GATES: Yes, sir. That is correct.
SEN. LIEBERMAN: I wanted to ask you if Im sure one of the reactions to what youve
announced today will be that this is a delay, I wanted to ask you to consider not only the
45-day limit, but whether you would think about providing regular reports to Congress,
and, therefore, the public, on the program of the study that youre doing, during this next
year?

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SEC. GATES: I dont see any reason why we cant do that.
SEN. LIEBERMAN: I appreciate that.
And, look, then the final, obviously, is that its up to us in the Congress and in the
Senate. Weve got to weve got to get 60 votes to repeal dont ask, dont tell, or else it
will remain in effect. Thank you.
SEN. LEVIN: Unless theres a provision inside the Defense authorization bill; that goes
to the floor, which would then require an amendment to strike it from the bill; in which
case the 60-vote rule would be turning the other way. In fact
SEN. LIEBERMAN: It is (inaudible) knowledge, but it is with great appreciation that I
accept the higher wisdom (laughter) of the chairman of our committee.
SEN. LEVIN: (Laughs, laughter.)
SEN. LIEBERMAN: I think thats a great way to go.
SEN. LEVIN: Thats on the record, everybody. (Laughter.)
SEN. LIEBERMAN: (Laughs.) Thank you.
SEN. LEVIN: Thank you, Joe.
Sen. McCaskill is next.
SEN. MCCASKILL: Thank you, Mr. Chairman.
I just want to make sure that were crystal clear about a couple of things here. First, are
gay and lesbian Americans currently serving in our military?
ADM. MULLEN: Yes.
SEN. MCCASKILL: And, in fact, isnt (it) the foundation of the current policy that we
welcome their service?
ADM. MULLEN: Yes.
SEN. MCCASKILL: Are you aware of any morale issues or disciplinary problems
surrounding the current service of gay and lesbian members Americans, as members
of our military?
ADM. MULLEN: Certainly not broadly.
SEN. MCCASKILL: Now, heres my I think what youre embarking upon is important; I
think it is welcomed, but heres my problem. We now have established that we have
gay and lesbian Americans serving in the military; that they are not broadly causing any
kind of disciplinary or morale problems; that we welcome their service.
So the issue isnt whether or not gay and lesbian Americans are serving in the military,
its whether or not we talk about it. So how are you going to get their input in this
survey? (Applause.)
ADM. MULLEN: Oh, Id, actually I mean, my take on that is well, hang on a
second. (Laughs.) I think that we would have to look very carefully at how we would do
that, specifically.
SEN. MCCASKILL: And thats the point I would like
ADM. MULLEN: Yeah (inaudible).
SEN. MCCASKILL: to leave you with today, is that, unfortunately, because of this
policy we welcome their service
ADM. MULLEN: Sure.
SEN. MCCASKILL: theyre serving bravely and well, we dont have any kind of issues
with morale, and cohesiveness surrounding their service, but yet when it comes time to
evaluate their service, theyre not allowed to talk about it. And so you have a real
challenge in getting perhaps maybe some of the most important input you may need as
you consider this policy. And Ill be anxiously awaiting how you figure that one out.
ADM. MULLEN: Yes, maam.

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SEN. MCCASKILL: Thank you, Mr. Chairman.
SEN. LEVIN: Thank you, Sen.
SEC. GATES: Well, one approach, Senator is to talk to those who have been
separated.
SEN. MCCASKILL: And I think thats terrific. I think the ones who have been separated
would be a great place that you can get good information. But I dont know that youre
going to be able to get at those that are currently serving because, obviously, theyre
not going to be able to step forward and talk about it. But I agree, Secretary Gates,
thats a great place, because so many of them voluntarily separated because of issues
of integrity. Thank you.
SEN. LEVIN: Thank you, Sen. McCaskill.
Sen. Reed.
SEN. REED: Thank you very much, Mr. Chairman.
Mr. Secretary, I want to follow up on a point that Sen. Collins made. Its my
understanding that both Canada and the United Kingdom have allowed gays and
lesbians to serve openly in the case of Canada, since the early 90s, and Great Britain
since at least the early 2000.
They are fighting side-by-side with us today in Afghanistan. And, in fact, I would think
that we would like to see more of their regiments and brigades there. Does that, I think,
suggest, as Adm. Mullen mentioned before, that their combat effectiveness has not
been impaired and weve had the opportunity to work with them, you know, in joint
operations; does that add credibility, evidence or weight to the discussions that youre
undertaking?
SEC. GATES: Well, I think that it is clearly something we need to address. We need to
talk to those countries militaries in a more informal and in-depth way about their
experience. I think that their experience is a factor. But I also would say that each
country has its own culture and its own society, and has to be evaluated in those terms
as well.
SEN. REED: I think one of the aspects you refer to in your prepared remarks is the, at
least presumptive difference, in terms of the attitudes at differing ranks within the
military. Is that something you can comment upon now? Have you done any research?
Or Adm. Mullen think on that, about the attitudes based on age, or based on other
factors?
SEC. GATES: I think that really goes to the point of what of what we, what we need to
do in the months ahead. I think Adm. Mullen would agree that we dont know; we dont
have information based on rank or anything like that.
ADM. MULLEN: Anecdotally, I mean, it would be my only comment, there really hasnt
been any objective review of this and so I think it would too soon to comment, because
actually, anecdotally, there are young people, NCOs, senior officers on both sides of
this issue. And it gets to this strongly held views driving this as opposed to really
understanding objectively what this policy change would mean.
SEN. REED: Let me ask a final question, which I think is implicit in your overall
testimony. And that is, and this is rather simplistic, but there will be a decision and then
there will be the implementation of that decision. I would assume that, at least in part,
those have to be coordinated or referenced so that part of this discussion analysis
going forward is not only a decision but its also about how this policy would be
implemented in a very detailed fashion. And that would be something that would be
available to the Congress before they made the decision, or whats, can you comment
at all about that aspect?
SEC. GATES: Let me just start by saying sure. And because one of the things that we
will look at is, if there is a problem with unit cohesion, how would you mitigate it? How,
through training or regulations or other measures, do you, if the Congress were to
repeal the law, then how would we implement it, just as you say?
And part of our review process is, as we look at the different aspects of it, what are the
problem areas that were going to see, and how do we address those? And as I said in
my statement, its everything from base housing to various policies and regulations and
so on. All of those have to be addressed.
ADM. MULLEN: For me, Senator its the understanding the impact. It is then, in that

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understanding that speaks in great part to potential implementation, and that, then,
really goes to the core of where I am on this, which is leadership. So I mean,
understanding that, and they are integral to each other, impact and implementation,
then says to me, Mullen, heres how you lead this. This is what you need to do to move
through it, if the law changes.
SEN. REED: Thank you, Mr. Chairman.
SEN. LEVIN: Thank you.
Just briefly following up Sen. Reeds and Sen. Collins point about other militaries, and
Sen. Reeds point that our military is fighting side by side and with militaries who do
not have a discriminatory policy against open service by gays. Have you noticed any
impact on our troops who serve with Canadians or with Brits because of a British or
Canadian policy that allows gays to openly serve? Admiral?
ADM. MULLEN: Since these wars started in 2003, it has not been brought to my
attention that theres been any significant impact of the policies in those countries on
either their military effectiveness or our ability to work with them.
SEN. LEVIN: All right. I have to make one comment on a suggestion that somehow or
other, Admiral, you are simply following orders here of your commander in chief whos
made a decision, in your testimony this morning. I think your testimony was not only
eloquent, but it was personal, you made it very clear that you were reflecting your
personal view, which you are obligated, under the oath you take, to give to us. We
thank you for that.
And I thank you, not just because it happens that I agree with what you said, but more
importantly because you were required to give us a personal view, and it was clear to
me, and I think clear to most of us, that this was a view that you hold in your conscience
and not giving to us because you were directed to by anybody, including the
commander in chief. This statement of yours, in my judgment, was a profile in
leadership this morning. Its going to take a great deal of leadership to have this change
made. I hope it is.
The sooner the better, as far as Im concerned, but with the kind of leadership that
youve shown this morning, I think its very doable, hopefully, in a short period of
time. One other comment, and that has to do with what can be done in the
interim. Youre going to be looking at that without legislative change.
Secretary, its my understanding that when service members are discharged under the
Dont Ask, Dont Tell policy, with an honorable discharge, the DOD policy now is that
they only receive half of their separation pay, which is authorized by statue. Youre
authorized to either give half or full pay. Would you take a look at that as something we
can do in the interim here to indicate a greater sense of fairness about this
issue? (Sounds gavel.)
You know youre sitting there quietly, Sen. Udall. I should have asked, do you have a
final question? Okay.
I thank you both, its been a long hearing this morning. We very much appreciate you,
the men and women that serve with you and your families.
We will stand adjourned.

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Exhibit C

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SECRETARY OF DEFENSE

1000 DEFENSE PENTAGON

WASHINGTON, DC 20301-1000

MAR 2

2010

MEMORANDUM FOR THE GENERAL COUNSEL


COMMANDER, US ARMY EUROPE
SUBJECT: Comprehensive Review on the Implementation of a Repeal of 10 U.S.C.
654
The President has requested that the Congress repeal 10 U.S.c. 654, "Policy
Concerning Homosexuality in the Armed Forces," and directed the Department to
consider how best to implement a repeal of this law.
The Chairman of the Joint Chiefs of Staff and lowe the President an assessment
of the implications of such a repeal, should it occur. We also must develop an
implementation plan for any new statutory mandate. To be successful, we must
understand all issues and potential impacts associated with repeal of the law and how to
manage implementation in a way that minimizes disruption to a force engaged in combat
operations and other demanding military activities around the globe. Should Congress
take this action, strong, engaged and informed leadership will be required at every level
to properly and effectively implement a legislative change.
Accordingly, you are to stand up an intra-Department, inter-Service working
group to conduct a comprehensive review of the issues associated with a repeal of the
law. An integral element of this review shall be to assess and consider the impacts, if
any, a change in the law would have on military readiness, military effectiveness and unit
cohesion, and how to best manage such impacts during implementation.
To effectively accomplish this assessment, I believe it essential that the working
group systematically engage the force. The participation of a range of age, rank and
warfare communities in this study including families, in addition to active outreach
across the force is a critical aspect that will undoubtedly lead to insights and
recommendations essential to the Department's implementation of any change.
It is critical that this effort be carried out in a professional, thorough and
dispassionate manner. Given the political dimension of this issue, it is equally critical that
in carrying out this review, every effort be made to shield our men and women in uniform
and their families from those aspects of this debate.

OSD 02309-10
III

111111111111:1111 1111111111111111111:111111111111111 11111 Ilrl 11:111111111 11111 !IIII 1111 II

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Your terms of reference are attached. By copy of this memorandum, all DoD
Components will fully cooperate in the execution of this Review and be responsive to all
requests for information, detail personnel, or other support. The working group shall
submit its report to me by December 1, 2010.

Attachment(s):
As stated
cc:
Secretaries of the Military Departments
Under Secretary of Defense for Personnel and Readiness
General Counsel of the Department of Defense
Joint Chiefs of Staff

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TERMS OF REFERENCE
Comprehensive Review on the Implementation ofa Repeal of 10 U.S.C. 654
These Terms of Reference (TOR) establish the objectives of the Secretary of Defense
directed Comprehensive Review for the Repeal of 10 U.S.c. 654, "Policy Concerning
Homosexuality in the Armed Forces." The Review will examine the issues associated with
repeal of the law should it occur and will include an implementation plan that addresses the
impacts, if any, on the Department.
Objectives and Scope:

The Review will identify the impacts to the force of a repeal of 10 U.S.C 654 in the areas
reflected below:
1. Determine any impacts to military readiness, military effectiveness and unit cohesion,
recruiting/retention, and family readiness that may result from repeal of the law and
recommend any actions that should be taken in light of such impacts.
2. Determine leadership, guidance, and training on standards of conduct and new policies.
3. Determine appropriate changes to existing policies and regulations, including but not
limited to issues regarding personnel management, leadership and training, facilities,
investigations, and benefits.
4. Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
5. Monitor and evaluate existing legislative proposals to repeal 10 U.S.C 654 and
proposals that may be introduced in the Congress during the period of the review.
6. Assure appropriate ways to monitor the workforce climate and military effectiveness
that support successful follow-through on implementation.
7. Evaluate the issues raised in ongoing litigation involving 10 U.S.C 654.

Methodology:

1.. Review all DoD directives, instructions and other issuances potentially impacted by a
repeal. Identify where new directives and instructions may be needed.
2. Ensure participation in the working group by: military service leadership; appropriate
OSD staff elements; cross service officer and enlisted communities; mid-grade and
senior ranks; human resources/personnel specialists; pay and benefits specialists;
family support programs specialists; accession point and training communities; service

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academies and/or senior service schools; and medical, legal and religious support
personnel.
3. In an appropriately balanced manner, engage Members of Congress, key influencers of
potential service members and other stakeholder groups that have expressed a view on
the current and perspective policy.
4. Research/study methods shall include systematic engagement of all levels of the force
and their families, analysis of current data and information, and review the experiences
of foreign militaries.
5. Engage the RAND Corporation to update the National Defense Research Institute

report on "Sexual Orientation and U.S. Military Personnel Policy: Options and

Assessment" (1993).

Deliverables:

A Report addressing the areas above will be delivered to the Secretary of Defense not
later than December 1, 2010. Prior to the delivery of the report to the Secretary of Defense,
each Service Chief shall be afforded the opportunity to review and comment.
The Review will provide a plan of action to support the implementation of a repeal of the
law. The Review shall identify areas for further study.
Support:

The Under Secretary of Defense (Comptroller)/ChiefFinancial Officer will provide

adequate funding for the Review.

The DA&M, through Washington Headquarters Services, will coordinate for and provide
human resources, office/facilities, and other support to ensure success of this effort.
The Military Departments and other DOD Components will provide full support to the
Review with detail personnel, information (including but not limited to documents and
interviews of personnel), analytical capacity as determined necessary and any other support
as requested.