Log Cabin Republicans v. United States of America et al

Filing 136

NOTICE OF MOTION AND MOTION for Summary Judgment as to Plaintiff's First Amended Complaint filed by Defendants Donald H Rumsfeld, United States of America. Motion set for hearing on 4/26/2010 at 02:00 PM before Judge Virginia A. Phillips. (Attachments: #1 Memorandum, #2 Statement of Uncontroverted Fact and Conclusions of Law, #3 Appendix, #4 Proposed Order)(Freeborne, Paul)

Log Cabin Republicans v. United States of America et al

Doc. 136 Att. 1

1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATE: April 26, 2010 TIME: 2:00 p.m. BEFORE: Judge Phillips

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 24 25 26 27 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants.

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

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TABLE OF CONTENTS page I. INTRODUCTION .......................................................................................... 1 II. THE DADT POLICY ................................................................................... 4 III. ARGUMENT ........................................................................................... 8 A. LCR Has Failed To Satisfy The Minimum Requirements Of Organizational Standing And Defendants Are Entitled To Summary Judgment On That Basis Alone. ......................................... 8 B. Because Congress Could Rationally Have Concluded That The DADT Policy Is Necessary To Maintain Unit Cohesion, Accommodate Personal Privacy, and Reduce Sexual Tension For Military Effectiveness, LCR's Facial Due Process Challenge Fails .................................................................................. 13 1. Standard .................................................................................. 13 2. Plaintiff's Due Process Claim Fails as a Matter of Law ........ 15 3. No Genuine Question of Material Fact Exists with Respect To LCR's Substantive Due Process Claim ............... 18 C. Plaintiff's First Amendment Challenge Fails Because the DADT Policy and Testimony Establish that Service Members Are Not and Have Not Been Discharged for Statements Other Than to Show a Propensity or Intent to Engage in Homosexual Acts ................................................................................................... 22 IV. CONCLUSION ......................................................................................... 25

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TABLE OF AUTHORITIES CASES

3 Able v. United States, 155 F.3d 628 (2d Cir. 1998) ............................................................................. 16 4 Beller v. Middendorf, 5 632 F.2d 788 (9th Cir. 1980) ................................................................ 16, 17, 18 6 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002) ...................................................................... 8, 10 7 Celotex Corp. v. Catrett, 8 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. E2d (1986) ...................................... 15 9 City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) ................................... 13 10 City of Los Angeles v. Lyons, 11 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) ................................... 12 12 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ......................................................................... 16, 18 13 Fed. Commuc'ns Comm'n v. Beach Commc'ns, 14 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) ............................... 14 15 Friends of the Earth v. Laidlaw Envir. Servs., 528 U.S. 167, 328 U.S. 167, 145 L. Ed. 2d 610 (2000) ............................. 10, 11 16 Gange Lumber Co. v. Rowley, 17 326 U.S. 295, 66 S. Ct. 125, 90 L. Ed. 85 (1945) ............................................ 12 18 Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) ............................... 23 19 Heller v. Doe, 20 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) ......................... 14, 20 21 Hodgers-Durgin v. de la Via, 199 F.3d 1037 (9th Cir. 1999) .......................................................................... 12 22 Holmes v. California Army National Guard, 23 124 F.3d 1126 (9th Cir. 1997) ................................................................... passim 24 Howard v. U.S. Dept. of Defense, 354 F.3d 1358 (Fed. Cir. 2004) ........................................................................ 19 25 Hunt v. Washington State Apple Advertising Comm'n, 26 432 U.S. 333, 97 S. Ct. 2434, 53 L.Ed.2d 383 (1977) ................................... 4, 8 27 Ileto v. Glock, Inc. , 565 F.3d 1126 (9th Cir. 2009) .......................................................................... 17 28
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1 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ............................... 17 2 Lehnhausen v. Lake Shore Auto Parts Co., 3 410 U.S. 356, 93 S. Ct 1001, 35 L. Ed. 2d 351 (1973) .................................... 14 4 Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584 F.3d 1232 (9th Cir. 2009) .......................................................................... 18 5 Lujan v. Defenders of Wildlife, 6 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) ................................... 8 7 Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971 (1st Cir. 1989) ............................................................................. 19 8 Munoz v. Sullivan, 9 930 F.2d 1400 (9th Cir. 1991) .......................................................................... 16 10 Nat'l Treasury Employees Union v. Dep't of the Treasury, 25 F.3d 237 (5th Cir. 1994) .............................................................................. 12 11 Newton v. Thomason, 12 22 F.3d 1455 (9th Cir. 1994) ............................................................................ 14 13 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) .................................................................. passim 14 Richenberg v. Perry, 15 97 F.3d 256 (8th Cir. 1996) .............................................................................. 16 16 Schmier v. U.S. Court of Appeals, 279 F.3d 817 (9th Cir. 2002) .............................................................................. 8 17 Smart v. Ashcroft, 18 401 F.3d 119 (2d Cir. 2005) ............................................................................. 19 19 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ........................................................................ 6, 16 20 Thomasson v. Perry, 21 80 F.3d 915 (4th Cir. 1996) .............................................................................. 16 22 United States v. Inzunza, 580 F.3d 896 ..................................................................................................... 13 23 United States v. Jackson, 24 84 F.3d 1154 (9th Cir. 1996) ............................................................................ 19 25 United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987) ..................... 13, 15, 18 26 Valley Forge Christian College v. Americans United for 27 Separation of Church & State, 454 U.S. 464, 102 S. Ct. 752, 70 L.Ed.2d 700 (1982) ..................................... 25 28
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1 Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 171 (1979) ............................................ 14 2 Vt. Agency of Natural Res. v. United States ex rel. Stevens, 3 529 U.S. 765, 529 U.S. 765, 120 S. Ct. 1858 (2000) ....................................... 11 4 Washington Legal Found. v. Leavitt, 477 F. Supp. 2d 202 (D.D.C. 2007) ........................................................ 8, 10, 11 5 Washington State Grange v. Washington State Republican Party, 6 552 U.S. 442 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) .......................... 1, 13, 19 7 Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981) ...................................... 14 8 Witt v Dep't of the Air Force, 9 527 F.3d 806 (9th Cir. 2008) .......................................................................... passim 10 Young America's Found. v. Gates, 560 F. Supp. 2d 39 (D.D.C. 2008) ......................................................................... 12 11 12 14 15 16 17 18 20 21 22 23 24 25 26 27 28
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STATUTES

13 10 U.S.C. § 654 ............................................................................................... passim FEDERAL RULE OF CIVIL PROCEDURE Rule 12(b)(6) ......................................................................................................... 14 Rule 56 ................................................................................................................... 14 LEGISLATIVE MATERIAL

19 S. Rep. No. 112, 103rd Cong., 1st Sess., 1993 WL 286446 ........................... 4, 5, 6

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I. INTRODUCTION The Log Cabin Republicans ("LCR") pursue a facial challenge to the

3 constitutionality of the statute (10 U.S.C. § 654, hereafter "Section 654") and the 4 Department of Defense's ("DoD's") implementing regulations that subject service 5 members who have engaged in homosexual conduct in the military to separation, 6 commonly known as the "Don't Ask, Don't Tell" ("DADT") policy.1 Plaintiff 7 faces a high burden. As the Supreme Court has made clear, facial challenges such 8 as Plaintiff's here are "disfavored," because they "run contrary to principles of 9 judicial restraint" and "threaten to short circuit the democratic process." 10 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 11 451, 128 S. Ct. 1184, 1190, 170 L. Ed. 2d 151 (2008). And where, as here, rational 12 basis review applies, the only question presented is whether Congress "rationally 13 could have believed" that the conditions of the statute would promote its objective. 14 Unsurprisingly, every court to have decided the question has upheld the DADT 15 statute and the implementing regulations against facial constitutional attack, and 16 this Court is bound to do the same. As this Court is aware, the President of the 17 United States has called for the repeal of DADT, the Secretary of Defense initiated 18 a working group to study how to implement any such Congressional repeal, and 19 Congress is now holding hearings to consider the policy question of whether to 20 retain the current law. But those developments do not alter the fact that the statute 21 Congress enacted in 1993 passes constitutional muster. 22 As an initial matter, LCR has not remedied the deficiency in standing that 23 existed when this action commenced in 2004. LCR was permitted to amend its 24 complaint in 2006 (Doc. 24), for the express purpose of identifying by name a 25 26 27 28
On March 25, 2010, DoD issued revised Instructions to refine the administrative procedures used to implement the statute. Plaintiff challenges the constitutionality of the DADT policy as reflected in the statute and the implementing regulations, and makes no separate challenge to the regulations themselves.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 "member" who Plaintiff asserts allegedly suffered harm due to the DADT policy. 2 Plaintiff amended and identified two individuals ­ John Alexander Nicholson and 3 the anonymous John Doe. Following discovery, LCR cannot satisfy its standing 4 burden through these individuals. Mr. Nicholson was not a member of LCR when 5 this action commenced, and he was not a bona fide or active member of LCR at the 6 time the complaint was amended. Discovery has shown that, at the very time LCR 7 amended its complaint in April 2006, Mr. Nicholson merely "signed up" to add his 8 name to the LCR database, which LCR then used as a basis to proceed with this 9 action when it otherwise could not. As of the date of his deposition in 2010, Mr. 10 Nicholson conceded that he had never paid dues, a requirement for membership in 11 LCR, and thus he had never been a bona fide or active member of the LCR. 12 LCR similarly has not established standing through the anonymous John 13 Doe. Although Defendants would want to test John Doe's bona fides as an "active 14 member" of LCR (especially given what discovery has shown with respect to Mr. 15 Nicholson), his anonymity has precluded it. Even so, LCR, which has the burden 16 of establishing that it has standing through him, cannot do so; John Doe remains an 17 active member of the military and has not been discharged. LCR cannot show 18 through any record evidence that the challenged statute has been applied to John 19 Doe in any way. And LCR cannot show that John Doe made any statement that the 20 military used for any purpose, let alone for the purpose of discharging him under 21 Section 654. LCR has utterly failed to carry its burden to establish associational 22 standing and Defendants are therefore entitled to summary judgment on that basis 23 alone. 24 Should the Court even reach the merits of LCR's claims, Defendants are 25 nonetheless entitled to summary judgment. To survive summary judgment on the 26 merits with respect to LCR's facial substantive due process claim, LCR has the 27 burden of negating each and every constitutional application of the statute and 28 showing that Congress's policy judgments were irrational. Ninth Circuit precedent
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 forecloses LCR from doing so here. In Philips v. Perry, 106 F.3d 1420 (9th Cir. 2 1997), the Ninth Circuit observed that Congress could have rationally found the 3 DADT policy to be necessary to "further military effectiveness by maintaining unit 4 cohesion, accommodating personal privacy and reducing sexual tension." Id. at 5 1429. The Ninth Circuit in Philips continued by acknowledging that "we cannot 6 say that the Navy's concerns are based on `mere negative attitudes, or fear, 7 unsubstantiated by factors which are properly cognizable' by the military. Nor can 8 we say that avoiding sexual tensions lacks any `footing in the realities' of the 9 Naval environment in which Philips served." Id. (quoting Cleburne v. Cleburne 10 Living Ctr., 473 U.S. 432, 448, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). In light 11 of that conclusion, LCR cannot show that there are no legitimate applications of 12 the policy, and that Congress's conclusions were irrational. Because LCR cannot 13 make that showing, Defendants are entitled to summary judgment with respect to 14 the due process claim. 15 Defendants are also entitled to summary judgment on the merits with respect 16 to LCR's First Amendment claim. The Court already has recognized that Section 17 654 is consistent with the First Amendment to the extent it permits the military to 18 use statements as admissions of a propensity to engage in homosexual acts. The 19 Court nonetheless has ruled that "[d]ischarge on the basis of statements not used as 20 admissions of a propensity to engage in `homosexual acts' would appear to be 21 discharge on the basis of speech rather than conduct, an impermissible basis." 22 (Doc. 83 at 23). The Court suggested in that regard that LCR could pursue this 23 claim only by showing that the military discharges service members based upon 24 the use of a statement for a purpose other than as an admission of a propensity to 25 engage in homosexual acts, but concluded that it could not "determine from the 26 face of" LCR's complaint "whether Nicholson was, or Doe could yet be, 27 discharged" on a such a basis. Id. 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Discovery has confirmed that Mr. Nicholson was discharged because his

2 statement that he was gay constituted an admission of his propensity to engage in 3 homosexual acts, a presumption that he chose not to rebut. John Doe, meanwhile, 4 has not been discharged (pursuant to the statute or otherwise) and remains an 5 active member of the military; John Doe, therefore, has not been aggrieved by the 6 statute that LCR challenges. The claim that the Court allowed LCR to pursue 7 through amendment of its complaint, therefore, is thus entirely unsupported by any 8 record evidence. For these reasons, LCR has failed to meet its burden, and 9 Defendants are entitled to summary judgment.2 10 11 II. THE DADT POLICY The "Don't Ask, Don't Tell" policy ("DADT" or "policy"), as codified at 10

12 U.S.C. § 654, became law in 1993. It was the culmination of an effort by Congress 13 to examine the issue of homosexual conduct in the Armed Forces through lengthy 14 hearings on the issue and testimony from military commanders, gay rights 15 activists, experts in military personnel policy, and many interested civilians and 16 members of the Armed Forces. See generally, S. Rep. No. 112, 103rd Cong., 1st 17 Sess., 1993 WL 286446. Upon its extensive review of the issue, Congress 18 concluded that the policy was necessary to ensure privacy, reduce sexual tension, 19 and, ultimately to maintain unit cohesion and military preparedness. Among other 20 things, Congress determined that the statute was necessary because "[t]he presence 21 22 23 24 25 26 27 28
Defendants also contend that this action cannot continue after the Ninth Circuit's decision in Witt v Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008). First, the Witt panel was careful to note that only "as-applied" substantive due process challenges to the statute can proceed. Because LCR's challenge to the statute is a facial challenge, its substantive due process challenge cannot proceed as a matter of law. And second, unlike the situation in Witt, which was brought by an individual, LCR seeks to establish associational standing to challenge the statute. Inasmuch as Witt now makes clear that substantive due process challenges require the involvement of an individual, LCR cannot satisfy its burden of establishing associational standing. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). The Court rejected both arguments in its June 9, 2009 Order, and Defendants incorporate those arguments by reference to preserve them for appeal.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 in the Armed Forces of persons who demonstrate a propensity or intent to engage 2 in homosexual acts would create an unacceptable risk to the high standards of 3 morale, good order and discipline, and unit cohesion that are the essence of 4 military capability." 10 U.S.C § 654(a)(15). 5 In reaching that conclusion, Congress heard from General H. Norman 6 Schwarzkopf, U.S. Army (Ret.), who testified that unit cohesion "is the single most 7 important factor in a unit's ability to succeed on the battlefield." S. Rep. No. 112, 8 103rd Cong., 1st Sess., 1993 WL 286446, at 275. General Colin Powell similarly 9 testified that, "[t]o win wars, we create cohesive teams of warriors who will bond 10 so tightly that they are prepared to go into battle and give their lives if necessary 11 for the accomplishment of the mission and for the cohesion of the group and for 12 their individual buddies." Id. Congress found that unit cohesion is improved by 13 reducing or eliminating the potential for sexual tension to distract the members of 14 the unit, and by protecting the personal privacy of service members. 15 For example, the Senate Armed Services Committee concluded that, among 16 both heterosexuals and homosexuals, "[s]exual behavior is one of the most intimate 17 and powerful forces in society," id. at 281, and, "[w]hen dealing with issues 18 involving persons of different genders . . . the armed forces do not presume that 19 service members will remain celibate or that they will not be attracted to members 20 of the opposite sex. On the contrary, the military provides men and women with 21 separate quarters in order to ensure privacy because experience demonstrates that 22 few remain celibate and many are attracted to members of the opposite sex." Id. at 23 284. Indeed, the Committee expressly noted that "[t]he separation of men and 24 women is based upon the military necessity to minimize conditions that would 25 disrupt unit cohesion, such as the potential for increased sexual tension that could 26 result from mixed living quarters," Id. at 277-78. In the Committee's view, it 27 would be "irrational . . . to develop military personnel policies on the basis that all 28 gays and lesbians will remain celibate or that they will not be sexually attracted to
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 others." Id. at 278. Id. Reviewing Congress's conclusions in Philips, the Ninth 2 Circuit stated that it could not say sexual tension and concerns over privacy "lack[] 3 any `footing in the realities'" of military life. 106 F.3d at 1429 (internal citation 4 omitted) & n. 15 (referencing congressional testimony of General Powell 5 describing "communal settings that force intimacy and provide little privacy" in 6 military).3 7 The statutory policy is grounded in fifteen legislative findings. 10 U.S.C. 8 § 654(a). Those findings reflect Congress's judgment that, among other things, 9 "military life is fundamentally different from civilian life" because of "the 10 extraordinary responsibilities of the armed forces, the unique conditions of military 11 service, and the critical role of unit cohesion." Id. § 654(a)(8)(A). The "military 12 society is characterized by its own laws, rules, customs, and traditions, including 13 numerous restrictions on personal behavior, that would not be acceptable in 14 civilian society." Id. § 654(a)(8)(B). These rules are necessitated by, among other 15 16 17 18 19 20 21 22 23 24 25 26 27 28
General Powell testified that homosexual conduct in units "involves matters of privacy and human sexuality that, . . . if allowed to exist openly in the military, would affect the cohesion and well-being of the force." 1993 WL 2866446 at 281. He further testified that "it would be prejudicial to good order and discipline" if the military required heterosexuals and persons who demonstrate that they do or are likely to engage in homosexual acts "to share the most private facilities together," id. at 283, and that "[c]ohesion is strengthened or weakened in the intimate living arrangements we force upon our people. . . . In our society gender differences are not considered conducive to bonding and cohesion within barracks living spaces." Id. at 278. Concluding that "[s]exual behavior is one of the most intimate and powerful forces in society," id. at 281, the Committee found that it was reasonable for the military to take these factors into account in establishing gender-based assignment policies. Id. at 278. And just as "[i]t is reasonable for the armed forces to take these factors into consideration in establishing genderbased assignment policies," it also "is reasonable for the armed forces to take [them] into consideration when addressing issues concerning persons who engage in or have the propensity or intent to engage in sexual activity with persons of the same sex." Id. at 278. And while separating men and women reduces sexual tension among heterosexuals, Congress could rationally have concluded that such separation is not an alternative for homosexuals. See Steffan v. Perry, 41 F.3d 677, 692 (D.C. Cir. 1994) ("The military obviously could not eliminate the difficulties of quartering homosexuals with persons of the same sex by totally segregating homosexuals. Besides the troubling implications of such a separation, putting all homosexuals together would not diminish their mutual sexual attractions.").
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 things, "[t]he worldwide deployment of United States military forces, the 2 international responsibilities of the United States, and the potential for involvement 3 of the armed forces in actual combat routinely [which] make it necessary for 4 members of the armed forces involuntarily to accept living conditions and working 5 conditions that are often spartan, primitive, and characterized by forced intimacy 6 with little or no privacy." Id. § 654(a)(12). Congress's policy judgment 7 culminated, as noted, in its finding that "[t]he presence in the armed forces of 8 persons who demonstrate a propensity or intent to engage in homosexual acts 9 would create an unacceptable risk to the high standards of morale, good order and 10 discipline, and unit cohesion that are the essence of military capability." Id. 11 § 654(a)(15). 12 Based on these Congressional findings, the statute provides for separation 13 from service in three situations related to homosexual conduct by a member of the 14 Armed Forces. Separation is required where the service member has: 15 (1) "engaged in, attempted to engage in, or solicited another to engage in a homo16 sexual act," id. § 654(b)(1); (2) "stated that he or she is a homosexual or bisexual 17 . . . unless . . . [the member] demonstrate[s] that he or she is not a person who 18 engages in, attempts to engage in, has a propensity to engage in, or intends to 19 engage in homosexual acts," id. § 654(b)(2); or (3) "married or attempted to marry 20 a person known to be of the same biological sex," id. § 654(b)(3). Where a service 21 member makes a statement that "he or she is homosexual . . . or words to that 22 effect," id. § 654 (b)(2), those words create a presumption that the service member 23 is a "person who engages in, attempts to engage in, has a propensity to engage in, 24 or intends to engage in homosexual acts." Id. § 654(b)(2). A service member is 25 afforded an opportunity to rebut that presumption. 10 U.S.C. § 654(b)(2). 26 27 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 2 3 4 5 A.

IV.

ARGUMENT

LCR Has Failed To Satisfy The Minimum Requirements Of Organizational Standing And Defendants Are Entitled To Summary Judgment On That Basis Alone.

The power of federal courts extends only to Cases and Controversies, see

6 U.S. Const. art. III, § 2, and a litigant's standing to sue is "`an essential and 7 unchanging part of the case-or-controversy requirement.'" See Lujan v. Defenders 8 of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) (citation 9 omitted). "Standing is determined as of the commencement of litigation." 10 Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002). "The 11 party seeking to invoke the jurisdiction of the court has the burden of alleging 12 specific facts sufficient to satisfy" the requirements of standing. Schmier v. U.S. 13 Court of Appeals, 279 F.3d 817, 821 (9th Cir. 2002). 14 An organization has standing to sue on behalf of its members only when it 15 can demonstrate, among other requirements, that those members "would otherwise 16 have standing to sue in their own right." Hunt, 432 U.S. at 343. The persons 17 whose interests an organization seeks to pursue must actually be members of the 18 organization. Cf. Washington Legal Found. v. Leavitt, 477 F. Supp. 2d 202, 208 19 (D.D.C. 2007) (listing the "indicia of membership" in an organization without 20 formal members as "(i) electing the entity's leadership, (ii) serving in the entity, 21 and (iii) financing the entity's activities") (citing Hunt, 432 U.S. at 344-45)). In 22 addition, an organization's claim to associational standing is "weakened" if the 23 members on which it relies were "manufactured . . . after the fact" for purposes of 24 the litigation. Washington Legal Found., id. at 211. 25 In ruling on Defendants' earlier motion to dismiss for lack of standing, the 26 Court held that LCR had not identified any member of its organization who had 27 been personally harmed by the DADT policy (Doc. 24). The Court thus granted 28 the motion to dismiss without prejudice and "ordered" LCR "to identify, by name,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 at least one of its members injured by the subject policy" (Doc. 24 at 17). That 2 member would have to "submit a declaration establishing that he or she: (1) is an 3 active member of the organization; (2) has served or currently serves in the Armed 4 Forces; and (3) has been injured by the policy" (Doc. 24 at 17). In an effort to 5 comply with the Court's Order, LCR filed an amended complaint and a declaration 6 from John Alexander Nicholson on April 28, 2006 (Docs. 25, 26). 7 The First Amended Complaint alleged that Mr. Nicholson was a member of 8 LCR and that he had been discharged pursuant to the DADT policy (Doc. 25 9 ¶¶ 13-14). Mr. Nicholson's April 2006 declaration stated in part, "I am a member 10 of the Log Cabin Republicans" (Doc. 26 ¶ 2). In actuality, however, LCR cannot 11 show that Mr. Nicholson has ever been a bona fide or active member of LCR 12 sufficient to confer organizational standing, let alone a member at the time this 13 action was commenced or when the amended complaint was filed. The chairman 14 of LCR's national board of directors testified at his deposition that the 15 organization's bylaws, at both the national and the local level, require payment of 16 dues to retain membership, and he testified that one becomes a member by paying 17 dues to the national organization or to a local chapter (Hamilton Dep. 23:2-12; 18 29:19-30:16, Mar. 13, 2010, Ex. 1).4 Mr. Nicholson, for his part, testified that he 19 has never paid dues to LCR and that he merely "signed up to be a part of [the 20 organization's] database" (Nicholson Dep. at 9:14-10:7, Mar. 15, 2010, 21 Ex. 2). In his deposition, Mr. Nicholson testified that he remembered precisely 22 when he "signed up to be a part of [the organization's] database": April 2006 23 (Nicholson Dep. at 9: 17-18, Mar. 15, 2010, Ex. 2) ­ that is, he "signed up" the 24 same month he signed the declaration in this case, which LCR then offered to the 25 Court for purposes of seeking to confer standing sufficient to pursue its action. 26 27
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28 herein have previously been lodged with the Court (Doc. 129).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

The transcript of the deposition of Terry Hamilton and of all other depositions cited
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1

It is an irreducible requirement that a plaintiff have a personal interest in a

2 case sufficient to confer standing from the commencement of litigation and 3 throughout its existence, see Friends of the Earth v. Laidlaw Envir. Servs., 528 4 U.S. 167, 189, 528 U.S. 167, 145 L. Ed. 2d 610 (2000), and this is equally true in 5 cases based on associational standing. See Biodiversity, 309 F.3d at 1171. This 6 Court recognized as much when it ordered LCR to submit a declaration from 7 someone demonstrating, among other things, that "he or she: (1) is an active 8 member of the organization" (Doc. 24 at 17). Here, after discovery, it is 9 undisputed that Mr. Nicholson was not "an active member" of LCR either when 10 this action was commenced in 2004 or upon amendment in 2006. Indeed, Mr. 11 Nicholson has never been a bona fide or "active member" of LCR and thus was not 12 "an active member" even when it submitted Mr. Nicholson's declaration to the 13 Court; at that point, and only at that very point, Mr. Nicholson was merely 14 "sign[ed] up to be a part of [LCR's] database" (Nicholson Dep. at 9:21-10:4, Ex. 1 5 2). 16 Even if Mr. Nicholson had been "signed up" at the time this action was 17 commenced, or even if he was "signed up" when the Court directed LCR to submit 18 a declaration from "an active member," Mr. Nicholson was not, nor has he ever 19 been, a bona fide or active member of LCR sufficient to permit the organization to 20 qualify for associational standing. At his deposition in 2010, Mr. Nicholson 21 conceded that he did not pay dues as required by the organization's own bylaws 22 (Nicholson Dep. at 9:14-10:7, Ex. 2; Hamilton Dep. at 29:19-30:16, Ex. 1). 23 Cf. Washington Legal Found., 477 F. Supp. 2d at 208 (listing "financing the 24 entity's activities" as one "indicia of membership"). Merely entering Mr. Nichol25 son's name into LCR's "database" did not make him a member under the bylaws 26 (Nicholson Dep. 9:14-10:7, Ex. 2). Indeed, LCR's claim to associational standing 27 is dramatically "weakened" to the extent it was "manufactured . . . after the fact" 28 for purposes of the litigation. Washington Legal Found., id. at 211. But under no
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 circumstances can LCR demonstrate, based on the record, that through Mr. 2 Nicholson it has met the "irreducible requirement" that it demonstrate standing 3 from the commencement of the litigation and throughout its existence. Friends of 4 the Earth, 528 U.S. at 189.5 5 The First Amended Complaint also alleged that another member, John Doe 6 (anonymous), was then enlisted in the Armed Forces (Doc. 25 ¶ 20). But LCR has 7 wholly failed to show that John Doe has paid dues or has been aggrieved by the 8 statute it challenges. John Doe is a member of the military and has never been 9 discharged, let alone by application of the DADT policy. There is no evidence to 10 demonstrate that Section 654 has ever been applied to John Doe, or that any 11 statement he has made has been used by the military for any purpose, let alone for 12 any purpose in connection with its application of the DADT policy. 13 Doe's asserted harm is based solely upon some future, possible, conjectural, 14 or hypothetical application of the policy to him. But an injury must be "both 15 `concrete' and `actual or imminent, not conjectural or hypothetical'" to confer 16 standing. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 17 771, 529 U.S. 765, 120 S. Ct. 1858 (2000) (quoting Whitmore v. Arkansas, 495 18 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990)). An allegation of injury 19 20 21 22 23 24 25 26 27 28
Prior to filing this motion, Defendants' counsel conferred with Plaintiff's counsel and advised him that one of the bases of Defendants' motion would be that Plaintiff has failed to identify any current member of LCR who could confer associational standing upon LCR, in part because Mr. Nicholson testified in his deposition that he failed to pay dues required for LCR membership. Following the conferral, Plaintiff's counsel sent Defendants' counsel an e-mail stating that Mr. Nicholson's annual dues were "presently" "paid in full." Even if true (and attorney representations are, of course, not evidence), the statement of Plaintiff's counsel merely confirms that Mr. Nicholson was not a bona fide member of LCR at the commencement of this action or at the time of amendment. In any event, this recent after-the-fact attempt by LCR's counsel further weakens Plaintiff's claim to associational standing. Washington Legal Found., 477 F. Supp. 2d at 211 (claim to associational standing "weakened" to the extent it was "manufactured . . . after the fact" for purposes of litigation). A copy of the email from counsel for LCR, Patrick Hunnius, dated March 25, 2010 to counsel for Defendants, is attached hereto as Exhibit 5.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 that is "remote, contingent and speculative," and that consists of "nothing more 2 than the bare possibility of some injury in the future," fails to present a justiciable 3 question. Gange Lumber Co. v. Rowley, 326 U.S. 295, 305, 66 S. Ct. 125, 90 L. 4 Ed. 85 (1945). 5 This is especially so where the relief sought is declaratory and injunctive 6 relief. Where such relief is sought, a plaintiff must first show that "the injury or 7 threat of injury" resulting from official conduct is both "`real and immediate,' not 8 `conjectural' or `hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 102, 9 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983); see Nat'l Treasury Employees Union v. 10 Dep't of the Treasury, 25 F.3d 237 (5th Cir. 1994) (rejecting assertion of 11 organizational standing where allegation of any injury to members is "only 12 hypothetical and conjectural"); see also Hodgers-Durgin v. de la Viña, 199 F.3d 13 1037, 1039 (9th Cir. 1999) (finding lack of standing due to "insufficient likelihood 14 of future injury").6 It is LCR's burden to establish standing, and it has failed to do 15 so here through its presentation of speculative allegations about an anonymous 16 "member."7 Because Plaintiff has failed to demonstrate standing, this Court lacks 17 subject-matter jurisdiction, and Defendants are entitled to summary judgment. 18 19 20 21 22 23 24 25 26 27 28
John Doe's alleged "fear of investigation . . . and other negative repercussions resulting from enforcement of the [DADT] Policy" (Doc. 39) is both too subjective and too speculative to be the basis for standing. Cf. Lyons, 461 U.S. at 102 (mere threat of prosecution is insufficient to establish harm necessary for standing). The membership deficiencies identified through discovery regarding Mr. Nicholson, moreover, should cause the Court to be skeptical of LCR's invitation to rely on its assertions about an anonymous John Doe as the basis to adjudicate a facial constitutional challenge to a statute that the Ninth Circuit already has determined to have been supported by a rational basis. See Philips, 106 F.3d at 1429; see Young America's Found. v. Gates, 560 F. Supp. 2d 39, 49-50 (D.D.C. 2008) (expressing doubt regarding assertion of associational standing based on alleged harm to anonymous members, because, in light of anonymity, "[t]here [was] no way to tell" whether alleged members were still in a position to benefit from the relief requested).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 2 3 4 5

B.

Because Congress Could Rationally Have Concluded That The DADT Policy Is Necessary To Maintain Unit Cohesion, Accommodate Personal Privacy, and Reduce Sexual Tension For Military Effectiveness, LCR's Facial Due Process Challenge Fails

If the Court reaches the merits, Defendants are also entitled to summary

6 judgment because LCR has failed to create a triable issue of material fact about 7 whether the DADT statute and implementing regulations are unconstitutional in all 8 of their applications, as is LCR's burden. 9 10 1. Standard "A facial challenge to a legislative Act is the most difficult challenge to

11 mount successfully, since the challenger must establish that no set of circumstances 12 exists under which the Act would be valid." United States v. Salerno, 481 U.S. 13 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).8 In reviewing such a 14 challenge, courts must be "careful not to go beyond the statute's facial 15 requirements and speculate about `hypothetical' or `imaginary' cases," and should 16 act with caution because "facial challenges threaten to short circuit the democratic 17 process." Washington State Grange, 552 U.S. at 449-50. 18 Plaintiff's burden is particularly high here, because the Court has ruled 19 already that LCR may not "rely upon [the] heightened scrutiny standard [adopted 20 in Witt] as the Ninth Circuit limited this standard to as-applied challenges," and 21 that this challenge is thus governed instead by the most deferential form of review 22 available ­ the rational basis test (Doc. 83 at 17). Under that standard, the only 23 question presented is whether Congress "rationally could have believed" that the 24 conditions of the statute would promote its objective. Western & Southern Life 25 26 27 28
The Ninth Circuit has made clear that "[o]ur court adheres to [the Salerno] standard, notwithstanding the plurality opinion in the City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999)." United States v. Inzunza, 580 F.3d 896, 904 n.4 (9th Cir. 2009).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. 2 Ed. 2d 514 (1981) (emphasis in original). 3 The Supreme Court has held that the rational basis test "is not subject to 4 courtroom fact-finding," and rational basis review "is not a license for courts to 5 judge the wisdom, fairness, or logic of legislative choices." Fed. Commuc'ns 6 Comm'n v. Beach Commc'ns, 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 7 211 (1993). The Government, therefore, has "no obligation to produce evidence to 8 sustain the rationality of a statutory classification." Heller v. Doe, 509 U.S. 312, 9 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Rather, "those challenging the 10 legislative judgment must convince the court that the legislative facts on which the 11 classification is apparently based could not reasonably be conceived to be true by 12 the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 13 939, 59 L. Ed. 171 (1979). "Only by faithful adherence to this guiding principle of 14 judicial review," the Supreme Court has cautioned, "is it possible to preserve to the 15 legislative branch its rightful independence and its ability to function." 16 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365, 93 S. Ct 1001, 35 L. 17 Ed. 2d 351 (1973). 18 With respect to DADT, the Ninth Circuit already has found that Congress 19 rationally could have believed the conditions of the statute would promote its 20 objectives, see Philips, 106 F.3d at 1429, and that determination is binding Circuit 21 precedent. Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). Because 22 LCR cannot meet its burden, Defendants are now entitled to summary judgment 23 under Federal Rule of Civil Procedure 56. 24 When it denied Defendants' motion to dismiss in this case under Rule 25 12(b)(6) for failure to state a claim, the Court determined that LCR's complaint 26 had sufficient merit to permit discovery to proceed on its claim that the DADT 27 statute is facially unconstitutional. Plaintiff's burden to survive summary 28 judgment, however, is greater. To do so, Plaintiff must by this point in the
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 litigation have made "a showing sufficient to establish the existence of an element 2 essential to" its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 3 91 L. Ed. 2d 265 (1986). In this case, LCR's burden is to "establish that no set of 4 circumstances exists under which the Act would be valid." Salerno, 481 U.S. at 5 745. LCR has failed to meet this burden. 6 7 2. Plaintiff's Due Process Claim Fails as a Matter of Law In Philips, 106 F.3d at 1429, the Ninth Circuit already determined that

8 "circumstances exist[] under which the [DADT policy] would be valid." Salerno, 9 481 U.S. at 745. Recognizing that "when a military regulation is challenged, 10 courts evaluate rationality with `great deference to the professional judgment of 11 military authorities concerning the relative importance of a particular military 12 interest,'" the Ninth Circuit concluded that the DADT policy is valid because 13 Congress could rationally have believed that it was necessary to preserve unit 14 cohesion, to accommodate personal privacy, and to reduce sexual tension so as to 15 enhance military preparedness and effectiveness. Philips, 106 F.3d at 1429. 16 Defendants are thus entitled to summary judgment with respect to LCR's facial due 17 process challenge. 18 Defendants acknowledge that the Court ruled in its Order of June 9, 2009, 19 that the Court could not "conclude Plaintiff's substantive due process claim lacks 20 merit" based upon existing Ninth Circuit precedent in Philips and in Holmes v. 21 California Army National Guard, 124 F.3d 1126 (9th Cir. 1997), which upheld the 22 DADT statute as fully comporting with constitutional requirements (Doc. 83 at 23 18). The Court distinguished Philips on the grounds that it addressed "equal 24 protection concerns, not substantive due process" (Doc. 83 at 17 n.5). But, with 25 respect, in this context, that is a distinction without a difference. 26 To satisfy its burden in this facial challenge under rational basis review, 27 LCR must establish that Congress could not rationally have believed that the 28 DADT policy serves to preserve unit cohesion, accommodate personal privacy, and
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 reduce sexual tension. But in Philips, without reference to the type of claim 2 presented or the legal standard to be applied, the Ninth Circuit stated that "the 3 Navy has explained that in its judgment separating members who engage in 4 homosexual acts is necessary to further military effectiveness by maintaining unit 5 cohesion, accommodating personal privacy and reducing sexual tension," and the 6 Court of Appeals concluded that "we cannot say that the Navy's concerns are 7 based on `mere negative attitudes, or fear,'" "[n]or can we say that avoiding sexual 8 tensions lacks any `footing in the realities' of military life. Philips, 106 F.3d at 9 1429 (recognizing that same determination applies to substantive due process 10 analysis set in Beller v. Middendorf, 632 F.2d 788, 810-11 (9th Cir. 1980) and 11 subsequent equal protection challenges).9 12 The Ninth Circuit has squarely held, moreover, that because an equal 13 protection challenge to a federal enactment arises under the Fifth Amendment's 14 Due Process clause, "the rational basis test is identical under the two rubrics [of 15 equal protection and due process]." Munoz v. Sullivan, 930 F.2d 1400, 1404 (9th 16 Cir. 1991). The Ninth Circuit in Philips thus rejected any distinction between 17 rational basis review under the rubric of equal protection and under the rubric of 18 substantive due process, stating that "substantive due process and equal protection 19 doctrine. . . are intertwined for purposes of equal protection analyses of federal 20 action." 106 F.3d at 1427 (internal quotation marks and citation omitted). 21 22 23 24 25 26 27 28
The Ninth Circuit is not alone in finding that these bases provide a basis on which Congress could rationally have acted. See, e.g., Steffan v. Perry, 41 F.3d 677, 692 (D.C. Cir. 1994) (en banc); Thomasson v. Perry, 80 F.3d 915, 929-30 (4th Cir. 1996) (en banc). Indeed, courts have consistently upheld the authority of Congress and the military under the DADT policy to discharge those who engage in homosexual conduct. See, e.g., Holmes v. California Army National 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).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1

Nor does Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d

2 508 (2003), alter the conclusion reached in Munoz and Philips. In Lawrence, the 3 Supreme Court ruled that there was no governmental interest that could support 4 criminalizing sodomy. 539 U.S. at 576-77 (recognizing that there is no 5 "governmental interest" served by criminalizing sodomy). But Lawrence does not 6 help Plaintiff here. The Ninth Circuit has specifically rejected the contention that 7 Lawrence requires "a more searching review" absent a "suspect classification." 8 Ileto v. Glock, Inc. , 565 F.3d 1126, 1142 (9th Cir. 2009). And the Court has 9 already rejected any claim of suspect classification here (Doc. 83 at 19). Lawrence 10 thus does not alter the nature of the rational basis in this case.10 11 Lawrence, moreover, did not address the application of a non-criminal 12 policy in the "special circumstances and needs of the armed forces." Philips, 106 13 F.3d at 1426 (internal quotation marks omitted). Indeed, in his opinion for the 14 Ninth Circuit rejecting the facial substantive due process challenge in Beller, then15 Judge Kennedy foreshadowed this very distinction ­ i.e., between the 16 Government's authority to criminalize sodomy done in the privacy of the home by 17 consenting civilian adults and Congress's authority to require those serving in the 18 military to refrain from engaging in homosexual conduct. Noting that the 19 military's then-extant separation policy, was not one "in which the state seeks to 20 use its criminal processes to coerce persons to comply with a moral precept even if 21 they are consenting adults acting in private without injury to each other," the Court 22 applied the deferential constitutional standard of review that applies to regulations 23 24
10

25 more restrictive policy on homosexuals in the military in Beller, 632 F.2d at 810-11. The Ninth 26 involving as-applied challenges, and thus did not foreclose an as-applied challenge to the DADT 27 statute. See Witt, 527 F.3d at 819-20 & n.9. But Witt did not abrogate Beller's holding that 28 challenge is the only type that LCR presents here.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Indeed, the Ninth Circuit addressed a substantive due process challenge to the earlier,

Circuit in Witt concluded that Beller had been overruled by subsequent Supreme Court precedent facial challenges to the military's more restrictive version of DADT would fail. And a facial

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 in the military context and held that the Government's policy was constitutional. 2 632 F.2d at 810.11 3 The Ninth Circuit's decision in Witt confirms that LCR's substantive due 4 process challenge cannot succeed. The Witt panel reaffirmed that the statute 5 "advances an important governmental interest. DADT concerns the management 6 of the military, and judicial deference to . . . congressional exercise of authority is 7 at its apogee when legislative action under the congressional authority to raise and 8 support armies and makes rules and regulations for their government is 9 challenged." 527 F.3d at 821 (quoting Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. 10 Ct. 2646, 69 L. Ed. 2d 478 (1981)). Because such an interest was found to satisfy 11 even heightened scrutiny, it necessarily satisfies rational basis review; a statute that 12 serves such a "legitimate governmental objective" is rational, and a party cannot 13 "plausibly assert a substantive due process violation." Lone Star Sec. & Video, 14 Inc. v. City of Los Angeles, 584 F.3d 1232, 1236 (9th Cir. 2009). Defendants are 15 entitled to judgment as a matter of law on LCR's due process claim. 16 17 18 3. No Genuine Question of Material Fact Exists with Respect To LCR's Substantive Due Process Claim Plaintiff has not met its burden of presenting evidence that negates the

19 constitutionality of every possible application of the DADT statute as it is required 20 to do. See Salerno, 481 U.S. at 745. 21 Congress judged that Section 654 was necessary to address, among other 22 things, unit cohesion, privacy, and sexual tension. In a facial challenge to a statute 23 governed by rational basis, the Government "has no obligation to produce evidence 24 25 26 (1st Cir. 2008), which summarily rejected plaintiffs' facial challenge to the DADT policy. 27 See id. at 56-57 (recognizing that the Lawrence Court "made it abundantly clear that there are 28 governmental interests served by unit cohesion within the military fall outside of Lawrence).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11

The same conclusion was reached by the First Circuit in Cook v. Gates, 528 F.3d 42

many types of sexual activity that are beyond the reach of that opinion[,]" and the legitimate

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 to sustain the rationality of a statutory classification" set forth in the statute, 2 Philips, 106 F.3d at 1425 (quoting Heller, 509 U.S. at 320). Such a choice is not 3 subject to "fact finding" ­ and may be based on "rational speculation unsupported 4 by evidence or empirical data." Philips, 106 F.3d at 1425 (quotations and citations 5 omitted). "[C]ourts are compelled under rational-basis review to accept a 6 legislature's generalizations even when there is an imperfect fit between means and 7 ends." Id. (same). Judicial deference is greatest when, as here, legislative action is 8 taken under the "congressional authority to raise and support armies and [to] make 9 rules and regulations for their governance[.]" Id.12 10 The Court determined that LCR's facial challenge is governed by rational 11 basis review. Supreme Court precedent instructs that courts are not "to go beyond 12 the statute's facial requirements and speculate about `hypothetical' or `imaginary' 13 cases." Washington State Grange, 552 U.S. at 450. Section 654, furthermore, 14 must be reviewed at the time of enactment and is not subject to challenge on the 15 ground of changed circumstances. See, e.g., United States v. Jackson, 84 F.3d 16 1154, 1161 (9th Cir. 1996); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 17 (1st Cir. 1989) ("evaluating the continued need for, and suitability of, legislation of 18 this genre is exactly the kind of policy judgment that the rational basis test was 19 designed to preclude."). Indeed, courts have found that even where Congress has 20 determined that a previous enactment is no longer necessary, that finding does not 21 render the statute unconstitutional. Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 22 2005); Howard v. U.S. Dept. of Defense, 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). 23 Were it otherwise, all legislation subject to rational basis review ­ even legislation 24 25 26 27 28
As Judge Noonan pointedly recognized in his concurring opinion in Philips, permitting judges to weigh the merits of such a policy requires courts to "assign to [themselves] a responsibility for a supervision of military discipline unknown to the Constitution and our traditions and beyond [their assigned] roles as judges of the United States." Id. at 1430. Such judgments are based upon the professional judgment of Congress and the military ­ and are not amenable to factual or "empirical" proof. Id.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 authoritatively sustained as constitutional by the Supreme Court ­ could potentially 2 be subject to periodic judicial review on the basis of changed circumstances, a 3 prospect incompatible with these principles and the well known and repeated 4 admonition that "a legislative choice is not subject to courtroom factfinding and 5 may be based on rational speculation unsupported by evidence or empirical data." 6 Heller, 509 U.S. at 320. Accordingly, there is no need for a trial because the Court 7 must adjudicate the policy based upon what Congress could have considered in 8 1993. 9 LCR designated seven "experts" who opined on the wisdom of the policy, 10 offering a variety of views ranging from the fiscal impact of the policy to how 11 polls conducted recently purportedly instruct the political branches to repeal the 12 statute.13 Even if such second-guessing of military policy were appropriate at all 13 (and even if it were admissible under Federal Rule of Evidence 702), such 14 testimony is irrelevant to the questions in this case. The testimony does not show 15 that there are no possible times where discharge of a member of the military who 16 engages in homosexual conduct is appropriate to advance the interests Congress 17 deemed paramount, or that Congress could not have rationally reached a 18 conclusion different from that offered by Plaintiff's experts. 19 Quite the contrary, LCR's own experts acknowledged that Congress could 20 rationally have considered the privacy and sexual tension rationales in enacting the 21 statute. LCR has designated as one of its experts Dr. Nathaniel Frank of the Palm 22 Center, who was asked in his deposition about the privacy interests that Congress 23 identified as a basis for the policy. Dr. Frank acknowledged that privacy concerns 24 such as those on which Congress relied were not irrational. (Frank Dep. 44:18-22, 25 26 27
13

28 challenge that is irrelevant under rational basis review.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

LCRs "experts" ultimately seek to challenge the wisdom of the DADT policy, a
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Feb. 26, 2010, Ex. 3).14 And Dr. Frank himself offered specific examples that 2 reinforce the Philips court's acknowledgment that sexual tension has "footing in 3 the realities" of military life. 106 F.3d at 1429 (internal citation omitted). See, e.g. 4 Frank Dep. 187:14-188:17, 188:18-189:11, Ex. 3 (providing testimony of service 5 members); Frank Dep. 116:19-118:6, Ex. 3 (regarding feasibility of 6 accommodations). 7 LCR also designated Aaron Belkin, also of the Palm Center, as an expert. 8 Dr. Belkin acknowledged that the privacy basis is rational in circumstances such as 9 combat where private accommodations are not possible (Belkin Dep. 34:23-35:11, 10 Mar. 5, 2010, Ex. 4).15 Indeed, Dr. Belkin studied the experience of the Israeli 11 military and found that heterosexual concern about privacy necessitated, in certain 12 instances, separate accommodations or work arrangements for heterosexual service 13 members (Belkin Dep. 74:8-75:19, Ex. 4). Dr. Belkin also acknowledged similar 14 findings with respect to Congress' concern regarding sexual tension within the 15 military. Belkin Dep. 46:3-19; 169:7-22, Ex. 4. He also pointedly admitted that 16 "people in the military have sex with each other" (Belkin Dep. 134:19-20, Ex. 4), 17 and that members have "sex with other members of the same sex" (Belkin Dep. 18 168:17-19; 135:2-7; 135:6-20, Ex. 4). Thus even LCR's own experts acknowledge 19 20 21 22 23 24 26 27 28
15 14

Later, Dr. Frank was asked if he felt concerns about privacy were irrational: A: Let me try to answer that question this way: Some people in the military have a desire not to serve with gay people because they feel that it is an invasion of their privacy. I'm not comfortable concluding that some people's feelings and desires are irrational, that those people's desires and feelings are irrational.

25 (Frank Dep. 46:24-47:7, Ex. 3.)
Dr. Belkin was questioned about the privacy rationale, and testified that the rationale is based upon a "range of reasons" ­ "shyness," "religious reasons," discomfort, or simple embarassment ­ none of which is grounded in moral animus (Belkin Dep. 31:20-33:5; 170:16171:1; 172:5-173:19, Ex. 4).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 that Congress could rationally have credited the privacy and sexual tension 2 rationales when it passed Section 654. See Belkin Dep. 174:3-10, Ex. 4 (regarding 3 feasibility of accommodations). 4 In short, Plaintiff's facial challenge presents no triable issue of fact. Under 5 settled case law governing rational review generally and governing review of 6 DADT policy in particular, the bases Congress set forth in the statute are sufficient 7 to survive rational basis review. And Plaintiff's expert testimony, even if 8 admissible or relevant, is insufficient to create a legitimate issue as to whether 9 those bases are rational or whether (as Plaintiff has the burden of proving) there is 10 no constitutional application of DADT. Defendants are thus entitled to summary 11 judgment with respect to LCR's facial due process claim. 12 13 14 15 16 C. Plaintiff's First Amendment Challenge Fails Because the DADT Policy and Testimony Establish that Service Members Are Not and Have Not Been Discharged for Statements Other Than to Show a Propensity or Intent to Engage in Homosexual Acts In addition to the due process claim addressed above, LCR alleges that the

17 DADT policy violates the First Amendment by "restricting, punishing and chilling 18 . . . speech that would tend to identify [LCR's] members and other members of the 19 United States Armed Forces as gays or lesbians" (Doc. 25 ¶ 47). This Court 20 already has dismissed LCR's First Amendment claim to the extent it asserts that 21 DoD may not use a service member's statement of homosexuality as an admission 22 of the service member's propensity to engage in homosexual acts (Doc. 83 at 2123 22). Such use of speech, the Court held, is expressly permitted by the Ninth 24 Circuit's decision in Holmes,124 F.3d at 1136. This Court allowed LCR to pursue 25 the First Amendment claim only insofar as it asserts that service members are 26 discharged under Section 654 based upon a statement that they are homosexual that 27 is not used as an admission of a propensity to engage in homosexual acts (Doc. 83 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 at 23-24). Based on the record herein, the government is entitled to summary 2 judgment on what remains of LCR's First Amendment claim as well. 3 In permitting LCR to pursue its claim that Section 654 permits discharge 4 based on statements that are not used as an admission of a propensity or intent to 5 engage in homosexual acts, this Court held that it was unable to resolve this claim 6 on the pleadings, and specifically referenced LCR's allegations regarding John 7 Alexander Nicholson and John Doe, the "members" on whom the LCR relies for 8 its organizational standing.16 The Court did not explain how the purported 9 application of DADT to those members was relevant to LC