Log Cabin Republicans v. United States of America et al

Filing 141

STATEMENT of Genuine Issues in Support of Opposition to MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 filed by Plaintiff Log Cabin Republicans. (Woods, Daniel)

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DAN WOODS (SBN: 78638) PATRICK HUNNIUS (SBN: 174633) EARLE MILLER (SBN: 116864) AARON KAHN (SBN: 238505) PATRICK HAGAN (State Bar No. 266237) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants. Case No. CV 04-8425 VAP (Ex) PLAINTIFF'S STATEMENT OF GENUINE ISSUES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Hearing Date: April 26, 2010 Time: 2:00 p.m. Courtroom: 2

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Plaintiff Log Cabin Republicans submits this Statement of Genuine Issues pursuant to Local Rule 56-2 in opposition to the motion for summary judgment herein filed by Defendants United States of America and Robert M. Gates, Secretary of Defense. The responses herein correspond to the proposed facts and supporting evidence presented in the Statement of Uncontroverted Facts filed by the moving party. These facts are followed by additional material facts and supporting evidence showing numerous genuine issues.

TABLE OF CONTENTS

Page

ASSOCIATIONAL STANDING............................................................................... 3 FIRST AMENDMENT CHALLENGE ..................................................................... 9 STATEMENT OF GENUINE ISSUES ................................................................... 12

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ASSOCIATIONAL STANDING MOVING PARTY'S PROPOSED FINDINGS OF FACT REGARDING PLAINTIFF'S ASSOCIATIONAL STANDING 1. Plaintiff, Log Cabin Republicans (LCR), filed a complaint on October 12, 2004 (Doc. 1), challenging the constitutionality of the "Don't Ask, Don't Tell" (DADT) policy. 2. Defendants United States and the Secretary of Defense moved to dismiss, arguing, among other things, Plaintiff failed to establish associational standing by identifying by name a current member who had been harmed by the policy (Doc. 9 & 12). 3. In ruling on Defendants' motion to dismiss for lack of standing, the Court held that LCR had not identified any member of its organization who had been personally harmed by the DADT policy (Doc. 24). 4. The Court, therefore, granted the 3. Plaintiff agrees that in ruling on Defendants' motion to dismiss Plaintiff's original, unamended complaint, the Court held that LCR had not identified any members of its organization who had been personally harmed by the DADT policy. 4. Plaintiff agrees this is undisputed. 2. Plaintiff agrees this is undisputed. 1. Plaintiff agrees this is undisputed. RESPONSE

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motion to dismiss without prejudice and "ordered" LCR "to identify, by name, at least one of its members injured by the subject policy" (Doc. 24 at 17). Such named member would have to "submit a declaration establishing that he or she: (1) is an active member of the organization; (2) has served or currently serves in the Armed Forces; and (3) has been injured by the policy" (Doc. 24 at 17). 5. In purported compliance with the Court's Order, LCR filed an amended Alexander Nicholson on April 28, 2006 (Docs. 25, 26). 5. Plaintiff agrees that it filed an amended complaint and a declaration from Mr. disputes Defendants' contention that this was in "purported compliance." Plaintiff's filing was in complete, not purported, compliance with the Court's Order. 6. The First Amended Complaint alleged that Mr. Nicholson was a member of LCR and that he had been discharged pursuant to the DADT policy (Doc. 25 ¶¶ 13-14). 7. Mr. Nicholson's April 2006 declaration stated in part, "I am a member of the Log Cabin -4LOSANGELES 858736 (2K)

complaint and a declaration from John Nicholson on April 28, 2006. Plaintiff

6. Plaintiff agrees this is undisputed.

7. Plaintiff agrees this is undisputed.

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Republicans" (Doc. 26 ¶ 2). 8. The organization's bylaws, at both the national and the local level, require payment of dues to retain membership, and one becomes a organization or to a local chapter (Hamilton Dep. 23:2-12; 29:19-30:16, Mar. 13, 2010, Ex. 1) 9. As of his deposition in March 2010, Mr. Nicholson had never paid dues to LCR; he merely "signed up to be a part of [the organization's] database" (Nicholson Dep. at 9:1410:7, Mar. 15, 2010, Ex. 2). 8. Plaintiff agrees that Mr. Hamilton testified that the organization's bylaws require payment of dues by some members. The organization's bylaws also membership is not contingent on the paying of dues. (Engle Decl. Exh. A, secs. 2.02, 2.03(d).) 9. Plaintiff agrees that as of his deposition in March 2010, Mr. Nicholson had not paid dues to LCR. Plaintiff disputes that Mr. Nicholson's purpose in joining LCR was "merely" to be a part of the LCR's database. Rather, Mr. Nicholson's intent in joining LCR was in response to other members' requests that he "get more actively involved" (Nicholson Dep. at 10:12, Mar. 15, 2010). In addition, Mr. Nicholson is current on his payment of dues to Log Cabin Republicans, addressed Log Cabin Republicans' National Convention in 2006, has spoken at other major Log Cabin Republicans events, and has been considered to be a member of Log Cabin Republicans continuously since

member by paying dues to the national recognize honorary members whose

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. The First Amended Complaint also alleged that another purported member of LCR, John Doe (anonymous), was then enlisted in the Armed Forces (Doc. 25 ¶ 20). 10. Mr. Nicholson "signed up to be a part of [the organization's] database" in April 2006 (Nicholson Dep. at 9: 17-18, Mar. 15, 2010, Ex. 2) ­ the same month he signed the declaration in this case (Doc. 26).

the time the First Amended Complaint was filed in this matter. (Hamilton Decl., ¶¶ 57.) 10. Plaintiff agrees that Mr. Nicholson signed up to be a part of the database in April 2006. Plaintiff disputes that Mr. Nicholson signed up solely to be part of LCR's database. LCR asked Mr. Nicholson to get more actively involved (Nicholson Dep. at 10:12, Mar. 15, 2010). In 2006 Mr. Nicholson was awarded an honorary membership in the Georgia Chapter of Log Cabin Republicans which he has held continuously to this day. He regularly attended meetings of the Georgia Chapter in 2006-07 and has attended several Log Cabin Republicans National Conventions including that in 2009. (Ensley Decl. ¶¶ 4-7.) 11. Plaintiff agrees that the First Amended Complaint alleged that John Doe was a member of LCR and was then enlisted in the Armed Forces. Plaintiff disputes Defendants' contention that Lt. Col. Doe is or was a "purported" member of LCR. Rather, Lt. Col. Doe is and at all

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. John Doe remains a member of the military, and thus has not been discharged ­ whether because of a statement or for any other reason (Hamilton Dep. 8:16-21, 33:17-35:20, Ex. 1). And there is no other record evidence to demonstrate that the

relevant times has been an actual member of LCR (Dkt. No. 39 ¶ 2; Bradley Decl. ¶¶ 5-6.). 12. Plaintiff agrees that Lt. Col. Doe remains a member of the military, and thus has not been discharged. He recently returned from a one-year tour of duty in Iraq. Bradley Decl. ¶ 4. Plaintiff disputes the remaining argument in this "proposed finding of fact" and the assertion that there

DADT policy has ever been applied to is no other record evidence to demonstrate John Doe, or that any statement he has that the DADT policy has ever been made has been used by the military for applied to Lt. Col. Doe. Lt. Col. Doe any purpose, let alone for any purpose in connection with its application of the DADT policy. wishes "to serve his country and to be judged on [his] actual ability and performance, without fear of investigation, discharge, stigma, forfeiture of constitutional civil liberties, harassment and other negative repercussions resulting from enforcement of the Policy" (Dkt. No. 39 ¶ 6). Furthermore, as a result of the Policy's application to him, Lt. Col. Doe may not "communicate the core of emotions and identity to others as granted to heterosexual members of the United States Armed Forces," nor may he "exercise [his] constitutionally protected -7LOSANGELES 858736 (2K)

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right to engage in private, consensual homosexual conduct without intervention of the United States government (Dkt. 39 ¶ 7). In addition, by virtue of the DADT policy, Lt. Col. Doe is prevented from actively participating in this lawsuit, including assisting with this Opposition, thereby violating his First Amendment right to petition the Government.

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FIRST AMENDMENT CHALLENGE MOVING PARTY'S PROPOSED FINDINGS OF FACT REGARDING PLAINTIFF'S FIRST AMENDMENT CHALLENGE 1. Mr. Nicholson was discharged because his statement that he was gay constituted an admission of his propensity to engage in homosexual acts, a presumption that he chose not to rebut: Mr. Nicholson gave his commander a letter stating that "[a]fter considerable thought, [he had] come to the decision to make the very difficult disclosure that [he was] gay" (Nicholson Dep. 43:17-44:6, 58:2159:12, Ex. 2 & Ex. 6). Mr. Nicholson stated in the letter, moreover, that he knew this disclosure would "require[ ] [his] involuntary discharge," but that he "chose to simply tell the truth and come out" (Nicholson Dep. 51:1-9, Ex. 2 & Ex. 6). Further, Mr. Nicholson's attorney stated in his own letter to the commander that Mr. Nicholson had asked the attorney "to -9LOSANGELES 858736 (2K)

RESPONSE

1. Plaintiff agrees that Mr. Nicholson was discharged after he gave his commander the letter in question; but Plaintiff disputes that Mr. Nicholson was discharged solely as a result of his admission of a likelihood of engaging in homosexual acts. Rather, Plaintiff contends that Mr. Nicholson was discharged on the basis of his statements alone, regardless of their relevance to Mr. Nicholson's likelihood of engaging in homosexual acts, after a fellow servicemember read a private letter written by Mr. Nicholson, in Portuguese. (Nicholson Depo., 69:3-12.)

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assist [him] in disclosing his sexual orientation to the Army" (Nicholson Dep. 59:18-60:3, Ex. 2 & Ex. 7). The attorney's letter also stated that Mr. Nicholson was aware that this disclosure "create[d] a rebuttable presumption that he [had] the propensity to engage in'homosexual conduct,'" but that Mr. Nicholson "elect[ed] not to rebut this presumption" (Nicholson Dep. 62:263:3, Ex. 2 & Ex. 7). Mr. Nicholson was thus discharged from the Army as a result of his admission of a likelihood of engaging in homosexual acts, which he chose not to rebut (Nicholson Dep. 63:4-11, 75:21-76:4, Ex. 2). 2. As for the anonymous John Doe on 2. Plaintiff agrees this is undisputed. whom LCR also seeks to rely, he remains a member of the military, and thus has not been discharged ­ whether because of a statement or for 21, 33:17-35:20, Ex. 1). No statement has thus been used as the basis to discharge John Doe under the - 10 LOSANGELES 858736 (2K)

However, Lt. Col. Doe is prevented from participating in this lawsuit, and serves under constant threat of investigation and discharge, by virtue of the application of Genuine Issues Nos. 90, 91, 92, and 112, below.

any other reason (Hamilton Dep. 8:16- the DADT policy in practice. See

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challenged statute or otherwise.

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STATEMENT OF GENUINE ISSUES FACTS SUPPORTING GENUINE ISSUES 1. The assertion contained in 10 U.S.C. § 654 that Don't Ask, Don't Tell advances morale, good order and discipline, and unit cohesion in the time of its enactment, and is today, without factual support.

SUPPORTING EVIDENCE 1. MacCoun Report at 2-3, attached to the Declaration of Robert MacCoun at Ex. A; Frank Report at 7-9, attached to the Declaration of Nathaniel Frank at Ex. A; the Declaration of Melissa Sheridan Embser-Herbert at Ex. A; Hillman Report at 1, attached to the Declaration of Elizabeth Hillman at Ex. A.

United States Armed Forces was at the Embser-Herbert Report at 4-5, attached to

2. Documentation, research, academic 2. Frank Report at 7-9; see also or sociological studies supporting such Defendants' Objections and Responses to an assertion are utterly lacking and defendants have no such evidence. Plaintiff's First Set of Interrogatories, No. 3 (wherein Defendants assert that "[t]he facts demonstrating that DADT advances governmental interests and purposes are set forth in the Statute, 10 U.S.C. § 654, and legislative history.") (LCR App. at 0159-0170); see also Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, Nos. 154-156 (wherein Defendants assert that "the text and legislative history of the statute, which - 12 LOSANGELES 858736 (2K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. There is no rational basis for prejudice against homosexuals, or for prejudice against homosexuals serving openly in the military. 3. The evidence available then and now demonstrates that Don't Ask, Don't Tell actually interferes with those interests.

embody the considered judgment of Congress, provide the necessary support for the law.") (LCR App. at 0171-0189). See also infra Genuine Issues Nos. 9, 12, 13. 3. Frank Report at 11-16; Hillman Report at 2; Belkin Report at 4, attached to the Declaration of Aaron Belkin as Ex. B; Korb Report at 8, attached to the Declaration of Lawrence Korb as Ex. A. 4. MacCoun Report at 2,3; Frank Report at 7-9; Embser-Herbert Report at 4,5; Hillman Report at 1; Rand Report passim (LCR App. at 0291-0838); 2005 GAO Report passim (LCR App. at 1025-1072); 1993 GAO Report passim (LCR App. at 0972-1024); 1992 GAO Report passim (LCR App. at 0888-0971); Crittenden Report at 46 (LCR App. at 0218-0290); Sarbin at 33 (LCR App. at 0839-0887); McDaniel passim (LCR App. at 13301359); see also Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 1, 2, 6 (wherein Defendants admitted that President Obama has declared: "I believe

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. No research has ever shown that the presence of openly homosexual servicemembers would cause or has 5. Homosexual servicemembers are no more likely than heterosexual servicemembers to reveal classified or otherwise confidential information; they are no more likely than heterosexual servicemembers to violate military codes of conduct, the UCMJ, or Department of Defense regulations; and they possess no physical or psychological defect that renders them unfit for service.

`don't ask, don't tell' doesn't contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens national security," and "these cases [of separations under DADT] underscore the urgency of reversing this policy not just because it's the right thing to do, but because it's essential for our national security.") (LCR App. at 0114-0158). 5. Frank Report at 7-9, citing Report of the Board of Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuals at 46, March 15, 1957 ("Crittenden Report") (stating "[t]he Board was unable to uncover any statistical data to prove or disprove that homosexuals are in fact more of a security risk than those engaged in other unsocial or immoral activity") (LCR App. at 02180290). 6. Frank Report at 7-9; National Defense Research Institute, Sexual Orientation and U.S. Military Personnel Policy: Options

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caused the deterioration of morale, good order and discipline, or unit cohesion in the military, any more than the presence of women or black men in previous decades caused such ill effects. 7. The 1957 Crittenden Report, commissioned by the Secretary of the Navy, concluded that no factual data exist to support the contention that homosexuals are a greater security risk than heterosexuals.

and Assessment ("RAND Report") at 103105, 188-190 (Washington, D.C., 1993) (LCR App. 0291-0838).

7. Crittenden Report at 46 (finding that "[t]he Board was unable to uncover any statistical data to prove or disprove that homosexuals are in fact more of a security risk than those engaged in other unsocial or immoral activity.") (LCR App. at 02180290); Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 135 (LCR App. at 0114-0158).

8. Two studies commissioned by the military's Personnel Security Research and Education Center in 1988 found that the ban on gay and lesbian service was unnecessary and damaging and that sexual orientation or unit cohesion.

8. Theodore Sarbin and Kenneth Karols, Nonconforming Sexual Orientations and Military Suitability at 33, Defense Personnel Security Research and Education Center ("PERSEREC") (December 1988) (LCR App. at 0839Adjustment of Homosexual and Heterosexual Military Accessions: Implications for Security Clearance

had no relationship to job performance 0887); Michael McDaniel, Preservice

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Polls, both of the public at large 9. The current Chairman of the Joint Chiefs of Staff has acknowledged publicly that there "just isn't any objective data out there" regarding the effects of the policy, its impact on military servicemembers and their families of Don't Ask, Don't Tell and its potential repeal.

Suitability, Defense Personnel Security Research and Education Center ("PERSEREC") (January 1989) (LCR App. at 1330-1359); Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 136 (0114-0158). 9. Testimony Regarding DoD `Don't Ask, Don't Tell' Policy: Hearing Before the S. Armed Services Comm., 111th Cong. 2 (2010) (statements of Robert Gates, Sec. Def. of the United States, and Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff) (available at http://www.jcs.mil/speech.aspx?id=1322, last visited April 1, 2010) (LCR App. 1791-1806); see also Adm. Mike Mullen, The View from the Chair (March 10, 2010), http://dodvclips.mil/?&fr_story=FRdamp3 67656&referer=http%3A%2F%2Fwww.fa cebook.com%2Fadmiralmikemullen%3Fv %3Dinfo%26ref%3Dsearch&autoplay=tru e&skin=oneclip&rf=ev (last visited April 1, 2010). 10. Frank Report at 18-19, citing a 1992

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and of members of the military, show little concern, and that diminishing steadily with time, regarding the impact of the presence of openly homosexual servicemembers on issues of privacy, sexual tension, and the like.

NBC News/Wall Street Journal poll which found that 46 percent of the public favored lifting the gay ban, while 49 percent opposed lifting it; a 2003 Fox News poll identifying the number of respondents who support gay service at 64 percent; a 2003 Gallup poll that identified the number of total respondents who support gay service at 79 percent and which showed that 91 percent of Americans between ages eighteen and twenty-nine favored lifting DADT; a 2008 ABC News/Washington Post poll which found that 75 percent of Americans favored openly gay service, including a majority of white evangelicals, veterans, and Republicans, whose support has doubled since 1993, and which showed that nearly two-thirds of conservatives as well as 82 percent of white Catholics supported letting open gays serve.

11. In February 2010, defendant Gates notified Congress that, reversing a policy of over 100 years' standing, the Navy intends to permit women to serve on submarines.

11. Julian E. Barnes, Navy Moves to Allow Women on Submarines, L.A. Times, Feb. 24, 2010 (available at http://www.latimes.com/news/nation-andworld/la-na-women-subs242010feb24,0,3205611.story, last visited - 17 -

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. The Secretary of Defense, defendant Robert M. Gates, also testified to the Senate Armed Services Committee, with regard to whether repealing DADT would undermine unit cohesion, that the Defense Department needed "to address a number of assertions that have been made for which we have no basis in fact." 14. A Zogby poll taken in 2006 indicated that roughly two thirds of servicemembers returning from Iraq and Afghanistan knew or suspected a gay person had served in their unit. 12. In February 2010, the Chairman of the Joint Chiefs of Staff, Admiral Mullen, testified to the Senate Armed Services Committee that he was unaware of any evidence suggesting repeal of DADT would undermine unit cohesion, and that there had been no thorough or comprehensive study of that since 1993.

April 1, 2010) (LCR App at 2618-2621). 12. Testimony Regarding DoD `Don't Ask, Don't Tell' Policy: Hearing Before the S. Armed Services Comm., 111th Cong. 2 (2010) (statements of Robert Gates, Sec. Def. of the United States, and Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff) (available at http://www.jcs.mil/speech.aspx?id=1322, last visited 4/1/10) (LCR App. at 0345203467). 13. Testimony Regarding DoD `Don't Ask, Don't Tell' Policy: Hearing Before the S. Armed Services Comm., 111th Cong. 2 (2010) (statements of Robert Gates, Sec. Def. of the United States, and Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff) (available at http://www.jcs.mil/speech.aspx?id=1322, last visited 4/1/10) (LCR App. at 0345203467). 14. Sam Rogers, Opinions of Military Personnel on Gays in the Military at 5, Zogby International (Dec. 2006) (LCR App. at 1073-1099).

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15. Many of the stated bases for Don't Ask, Don't Tell ­ including such purported justifications as the avoidance of sexual tension, concern about communal showers, and the like ­ do not apply in the case of women and lesbians. 16. The total cost of DOD's homosexual conduct policy cannot be estimated because DOD does not collect relevant cost data on inquiries and investigations, counseling and pastoral care, separation functions, and discharge reviews. However, DOD does collect data on recruitment Using these data, GAO estimated that, over the 10-year period, it could have cost the DOD about $95 million in constant fiscal year 2004 dollars to recruit replacements for servicemembers separated under the policy. Also, the Navy, Air Force, and Army estimated that the cost to train replacements for separated servicemembers by occupation was approximately $48.8 million, $16.6

15. Embser-Herbert Report at 4-5.

16. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 20, 21 (LCR App at 0114-0158); 2005 GAO Report to Congress entitled "Military Personnel: Financial Costs and Loss of Critical Skills to the DOD's Homosexual Conduct Policy Cannot Be Completely Estimated," text http://www.gao.gov/new.items/d05299.pdf (LCR App. at 1025-1072).

and training costs for the force overall. available online at

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million, and $29.7 million, respectively. 17. In 1993, the National Defense the Office of the Secretary of Defense titled "Sexual Orientation and U.S. Military Personnel Policy: Options and Assessments" which concluded that the available evidence demonstrated that circumstances could exist under which the ban on homosexuals could be lifted with little or no adverse consequences for recruitment or retention." 18. All research conducted by or on behalf of Defendants prior to January 1, 1994 demonstrating the need for, or advisability of, implementing the Policy is limited to the 7046 pages of documents received by Plaintiff on January 14, 2010. Nothing in those documents reflects any research or studies whatsoever supporting a rational basis for the Policy or its congruence with Congressional objectives. 18. Defendants' Objections and Responses to Plaintiff's First Set of Interrogatories, No. 15 (LCR App. at 0159-0170). 17. Defendants' Objections and Requests for Admission, No. 138 (LCR App. 0171-0189).

Research Institute prepared a study for Responses to Plaintiff's Second Set of

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19. All research conducted by or on behalf of Defendants since December 31, 1993, evaluating whether the Policy is furthering the interests and goals identified by the text of the statute underlying the Policy and its legislative history is limited to the 7046 pages of documents received by Plaintiff on January 14, 2010. Nothing in those documents reflects any research or studies whatsoever supporting a rational basis for the Policy or its congruence with Congressional objectives. 20. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 1994 without any discernible benefit to the U.S. Armed Forces.

19. Defendants' Objections and Responses to Plaintiff's First Set of Interrogatories, No. 16 (LCR App. at 0159-0170).

20. Conduct Unbecoming: The First Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, March 24, 1995 (produced by Log Cabin at LCR 04013 to 04044) (LCR App. at 19822013).

21. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 1995 without any discernible benefit to the U.S. Armed

21. Conduct Unbecoming: The Second Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, 1996

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Forces.

(produced by Log Cabin at LCR 04045 to 04080) (LCR App. at 2014-2049).

22. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 1996 without any discernible benefit to the U.S. Armed Forces.

22. Conduct Unbecoming: The Third Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, 1997 (produced by Log Cabin at LCR 04081 to 04120) (LCR App. at 2050-2089).

23. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 1997 without any discernible benefit to the U.S. Armed Forces.

23. Conduct Unbecoming: The Fourth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, 1998 (produced by Log Cabin at LCR 04121 to 04199) (LCR App. at 2090-2168).

24. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 1998 without any discernible benefit to the U.S. Armed Forces.

24. Conduct Unbecoming: The Fifth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, 1999 (produced by Log Cabin at LCR 04200 to 04284) (LCR App. at 2169-2253).

25. Don't Ask, Don't Tell ended the careers of hundreds of patriotic

25. Conduct Unbecoming: The Sixth Annual Report on "Don't Ask, Don't Tell, - 22 -

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Americans in 1999 without any discernible benefit to the U.S. Armed Forces.

Don't Pursue, Don't Harass," Service Members Legal Defense Network, March 9, 2000 (produced by Log Cabin at LCR 04285 to 04371) (LCR App. at 22542340).

26. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 2000 without any discernible benefit to the U.S. Armed Forces.

26. Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, March 15, 2001 (produced by Log Cabin at LCR 04372 to 04474) (LCR App. at 23412443).

27. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 2001 without any discernible benefit to the U.S. Armed Forces.

27. Conduct Unbecoming: The Eighth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, March 14, 2002 (produced by Log Cabin at LCR 04475 to 04531) (LCR App. at 24442500).

28. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 2002 without any discernible benefit to the U.S. Armed

28. Conduct Unbecoming: The Ninth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, March - 23 -

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Forces.

25, 2003 (produced by Log Cabin at LCR 04532 to 04592) (LCR App. at 25012561).

29. Don't Ask, Don't Tell ended the careers of hundreds of patriotic Americans in 2003 without any discernible benefit to the U.S. Armed Forces.

29. Conduct Unbecoming: The Tenth Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," Service Members Legal Defense Network, March 24, 2004 (produced by Log Cabin at LCR 04593 to 04648) (LCR App. at 25622617).

30. In enacting Don't Ask, Don't Tell, Congress and the President ignored studies demonstrating that permitting openly gay and lesbian individuals to serve in the U.S. Armed Forces would have no adverse effect on those interests.

30. See, e.g., Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, No. 175 (wherein Defendants admitted that the Military Working Group charged with providing options to reform the Department of Defense's policy on homosexuals "did not have the final report of the RAND National Defense Research Institute entitled "Sexual Orientation and U.S. Military Personnel Policy: Options and Assessments," prepared for the Secretary of Defense.) (LCR App. at 0171-0189); see also Defendants'

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Objections and Responses to Plaintiff's Second Set of Requests for Admission Nos. 176, 180-185 (wherein Defendants acknowledge that they are unable to confirm whether or not the Military Working Group or the Secretary of Defense provided the 103rd Congress with: the RAND Report; the memorandum from Craig Alderman, Jr., Deputy Undersecretary of Defense for Policy, to the DOD Personnel Security Research Center ("PERSEREC") Director regarding PERS-TR-89-002, "Nonconforming Sexual Orientations and Military Suitability," dated January 18, 1989; the memorandum from Carson K. Eoyang, PERSEREC Director, to Deputy Undersecretary of Defense for Policy, regarding PERSEREC research on homosexuality and suitability, dated January 30, 1989; the memorandum from Craig Alderman, Jr., Deputy Undersecretary of Defense for Policy, regarding the PERSEREC draft report "Nonconforming Sexual Orientations," dated February 10, 1989; PERSEREC report entitled "Preservice Adjustment of - 25 LOSANGELES 858736 (2K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32. A year later, the GAO and the RAND Corporation (in a separate study commissioned by the Secretary of Defense) both reported that permitting openly gay and lesbian servicemembers to serve did not impair the functioning of numerous foreign militaries. 33. RAND further concluded that sexual orientation was irrelevant to determining whether an individual was fit for military service. 31. The General Accounting Office ("GAO") in 1992 strongly suggested that the ban on gay and lesbian individuals serving openly be reconsidered.

Homosexual and Heterosexual Military Acessions: Implications for Security Clearance and Suitability," dated January 1989; PERSEREC report entitled "Homosexuality and Personnel Security," dated September 1991; and the Crittenden Report.) (LCR App. at 1071-0189). 31. U.S. Gov't Accountability Office (GAO), Defense Force Management: DOD's Policy on Homosexuality at 43 (June 12, 1992), http://archive.gao.gov/d33t10/ 146980.pdf (last visited April 1, 2010) (LCR App. at 0888-0971). 32. U.S. Gov't Accountability Office (GAO), Homosexuals in the Military: Policies and Practices of Foreign Countries at 10 (June 1993), http://archive.gao.gov/t2pbat5/149440.pdf (last visited April 1, 2010) (LCR App. at 0972-1024); RAND Report at 101-104 (LCR App. at 0291-0838). 33. RAND report, pp. 329-330 (LCR App. 0291-0838).

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34. RAND also reported that U.S. analogs to the military ­ integrated gays and lesbians and witnessed improved effectiveness and unit cohesion after doing so. 35. A statistical analysis of United States military units in the Iraq and Afghanistan conflicts (Moradi and Miller, 2009) showed no correlation between the presence of openly gay servicemembers in the unit and the unit's cohesion, quality, or combat readiness. 36. Persons who have identified themselves as lesbians and gay men have received honorable discharges from the United States Armed Forces. 37. The Military Working Group responsible for many of the conclusions underlying the purported the final report of the RAND National Defense Research Institute entitled "Sexual Orientation and U.S. Military Personnel Policy: Options and

34. Frank Report at 8; RAND Report at

police and fire departments ­ domestic 121-154 (LCR App. 0291-0838).

35. B. Moradi and L. Miller, Attitudes of Iraq and Afghanistan War Veterans toward Gay and Lesbian Servicemembers, 36 Armed Forces and Society 397, 416 (2009), available at http://www.palmcenter.org/files/active/0/r andstudy%283%29.pdf (last visited April 1, 2010) (LCR App. at 1281-1292). 36. Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, No. 168 (LCR App. at 0171-0189). 37. Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, No. 175 (LCR

rationale for the Policy, did not review App. at 0171-0189).

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Assessments," released in 1993. 38. The Military Working Group charged with submitting recommendations to Congress on the U.S. Armed Forces' homosexuality policy ignored evidence regarding the relevance of sexual orientation to military service in their report. 38. Office of the Sec'y of Def., Summary Report of the Military Working Group, July 1 1993 (Bates Nos. OSD P&R 007428-007454) (LCR App at 17641790).

39. In 1993, the Army Research Institute ("ARI") was initially assigned by the Army's Chief of Staff to conduct extensive research regarding President Clinton's proposal to lift the ban on homosexuals from serving openly in the Armed Forces. However, "[d]ue to decisions at senior levels, ARI was never given the 'green light' to pursue the tasking to the full extent. In particular, there were stringent restrictions on seeking attitudes and opinions, through surveys or discussion groups, from service members." 40. Approximately 25 nations have

39. Future Organizational Change ­ U.S. Army Focus Army Task Force, Documentation Book, Bates No. ARI 062124 (LCR App. at 1755).

40. Gays in Foreign Militaries 2010: A - 28 -

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already included openly gay and lesbian service members in their military without a negative impact on morale, recruitment, retention, readiness, or overall combat effectiveness.

Global Primer (Palm Center February 2010), Exhibit 22 to Deposition of Nathaniel Frank (LCR App. at 11291280).

41. The United Kingdom Defence Ministry reported that lifting its ban on openly gay and lesbian servicemembers was met with "widespread acceptance" and had "no discernible impact" on recruitment.

41. A. Belkin and R.L. Evans, The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces at 4, white paper, Palm Center, University of California, Santa Barbara, 2000 (available at http://www.palmcenter.org/files/active/0/ Britain1.pdf, last visited April 1, 2010) (LCR App. at 1807-1876); Aaron Belkin, Don't Ask, Don't Tell: Is the Gay Ban Based on Military Necessity? Parameters (Summer 2003) at 111 (available at http://www.carlisle.army.mil/usawc/Para meters/03summer/belkin.pdf, last visited April 1, 2010). (LCR App. at 1877-1888)

42. The integration of gays and lesbians into the British military produced no discernible impact on military readiness.

42. U.K. Ministry of Defense, "A Review of the Armed Forces Policy on Homosexuality" (2000), available at http://www.mod.uk/NR/rdonlyres/ACED4

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44. In February 2010, the Chairman of the Joint Chiefs of Staff, Admiral Mullen, testified before the Senate Armed Services Committee that his counterparts in countries that allow 43. In 2000, a comprehensive study regarding several foreign militaries' experience after removing the ban on gay and lesbian servicemembers reported no observed impact on military effectiveness, unit cohesion, recruitment, or retention.

F62-2C04-4B19-AC50E49552732385/0/impact_studies_homose xuality.pdf (last visited April 4, 2010) (LCR App. at 2821-2836).

43. A. Belkin and R.L. Evans, The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces at 2, white paper, Palm Center, University of California, Santa Barbara (Nov. 1, 2000) (LCR App. at 1807-1876); A. Belkin and J. McNichol, The Effects of Including Gay and Lesbian Soldiers in the Australian Defence Forces: Appraising the Evidence at 2-3, white paper, Palm Center, University of California, Santa Barbara (September 1, 2000) (LCR App. at 1889-1928); A. Belkin and M. Levitt, Homosexuality and the Israel Defense Forces, 27 Armed Forces and Society 541, 542 (2001) (LCR App. at 1100-1128). 44. Testimony Regarding DoD `Don't Ask, Don't Tell' Policy: Hearing Before the S. Armed Services Comm., 111th Cong. 2 (2010) (statements of Robert Gates, Sec. Def. of the United States, and

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gays and lesbians to serve openly report "no impact on military effectiveness."

Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff) (available at http://www.jcs.mil/speech.aspx?id=1322, last visited 4/1/10) (LCR App. at 17911806).

45. At least 23 countries allow openly 45. Defendants' Supplemental Responses gay and lesbian individuals to serve openly in their respective armed forces; these countries include Australia, Austria, Belgium, the United Kingdom, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Ireland, Israel, Italy, Lithuania, Luxembourg, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, and Switzerland. 46. No such nation has reported any detriment to any metric of military effectiveness, including unit cohesion, readiness, morale, retention, good order, or discipline. 46. See e.g. A. Belkin and R.L. Evans, The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces at 23, white paper, Palm Center, University of California, Santa Barbara (Nov. 1, 2000) (LCR App. 1807-1876); A. Belkin and J. McNichol, The Effects of Including Gay and Lesbian Soldiers in the Australian Defence Forces: Appraising the Evidence to Plaintiff's First Set of Requests for Admission, No. 81-82, 84-105 (LCR App. at 0212-0217).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48. The Canadian experience demonstrates that the inclusion of openly gay and lesbian servicemembers in combat units is a non-issue in terms of military effectiveness and that military effectiveness is determined by the 47. The integration of gays and lesbians into the Canadian military produced no discernible impact on military readiness.

at 2-3, white paper, Palm Center, University of California, Santa Barbara (September 1, 2000) (LCR App. at 18891928); A. Belkin and M. Levitt, Homosexuality and the Israel Defense Forces, 27 Armed Forces and Society 541, 542 (2001) (LCR App. at 1100-1128). 47. A. Belkin and J. McNichol, Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence at 2, white paper, Palm Center, University of California at Santa Barbara (April 2000), available at http://www.palmcenter.org/files/active/0/C anada5.pdf (last visited April 4, 2010) (LCR App. at 2837-2878); Okros Report, passim.

48. Okros Report at 4-5.

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competence of individual soldiers, not their sexual orientation. 49. The Army was informed, through a study it commissioned, at least as early as January 1994 that the Canadian Forces (CF) had experienced "virtually no consequences of lifting the ban on known homosexuals in the CF for all important dimensions," and confirmed about seven years later that "homosexuality is still a non-issue" in the CF. 50. In both Afghanistan and Iraq, members of the United States Armed Forces have fought and continue to fight side by side with coalition forces from such nations, including Great Britain and Australia. 51. Such forces include openly gay and lesbian commanding officers. 51. Defendants' Supplemental Responses to Plaintiff's First Set of Requests for Admission Nos. 81-82, 84-104 (LCR App. at 0212-0217). 52. The Department of Defense has no record of any adverse effects arising from the cooperation in 52. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 119 (LCR - 33 LOSANGELES 858736 (2K)

49. U.S. Army Research Institute (ARI) Research Report 1657, "Perspectives on Organizational Change in the Canadian Forces," January 1994, Okros Depo. Exh. 1001 [Bates No. ARI 60206-72] (LCR App. at 1492-1558); email of November 1, 2000 from Franklin C. Pinch to Paul A. Gade, ARI, Bates No. ARI 062002-04 (LCR App. at 1559-1561).

50. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission No. 118 (LCR App. at 0114-0158).

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Afghanistan and Iraq of United States servicemembers with gay and lesbian servicemembers from Great Britain and Australia, or with the servicemembers of any other country that permits gay and lesbian servicemembers to serve openly. 53. In the majority of Western industrialized societies, the inclusion of openly gay and lesbian individuals has no impact on military readiness.

App. at 0114-0158).

53. Gwyn Harries-Jenkins, Comparative International Military Personnel Policies at 18, U.S. Army Research Institute for the Behavioral and Social Sciences (May 1993) (Bates-stamped ARI 060755060779) (LCR App. at 1730-1754).

54. The Policy has been applied more frequently in peacetime than in times of war, when unit cohesion, as defendants posit the concept, is in theory most vital. 55. The year 2001, during most of which the United States was not in a state of war, yielded the highest number of discharges under Don't Ask, Don't Tell. 56. Since the commencement of Operation Enduring Freedom in

54. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 31-45 (LCR App. at 0114-0158).

55. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 37 (LCR App. at 0114-0158).

56. Defendants' Objections and Responses to Plaintiff's First Set of - 34 -

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Afghanistan in October 2001 and Operation Iraqi Freedom in Iraq in March 2003, discharges of lesbian and gay members of the United States Armed Forces have decreased dramatically. The Department of Defense separated 49% fewer servicemembers under the Policy in fiscal year 2008 than it separated in fiscal year 2001. 57. Army officers are instructed not to discharge servicemembers based on homosexuality from units on or about to be placed on active duty status. Their discharge is to be postponed until their return to the United States.

Requests for Admission, Nos. 37-45, 80 (LCR App. at 0114-0158).

57. See Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, No. 137 (LCR App. at 0171-0189); Dep't of the Army, Army Forces Command ("FORSCOM") Reg. 500-3-3 at 33 (1999) ("If discharge is not requested prior to the unit's receipt of alert notification, discharge is not authorized. Member will enter AD [active duty] with the unit.") (LCR App at 26222772).

58. In 1999, Regulation 500-3-3 [FORSCOM] allowed active duty deployment of Army reservists and National Guard troops awaiting resolution of the allegation of

58. Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, No. 137 (LCR App. at 0171-0189).

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homosexual conduct or statements. 59. In each year from 1994 through the present, Don't Ask, Don't Tell has disproportionately impacted women in the Armed Forces. 59. Embser-Herbert Report at 3; 2005 GAO Report at 10 (LCR App. 10251072); Defendant's Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 48, 49 (LCR App. at 0114-0158). 60. Between 1994 and 2003, women constituted less than 20% of the United States Armed Forces yet accounted for over 40% of the servicemembers discharged under the Policy. 61. In 2008, women accounted for 14% of the Armed Forces but accounted for 36% of those discharged under the Policy. 62. Don't Ask, Don't Tell uniquely impairs unit cohesion and military effectiveness among female servicemembers. 63. Don't Ask, Don't Tell requires that female servicemembers avoid appearing too strong, assertive, and masculine ­ and thus stereotypically lesbian ­ although they are expected - 36 LOSANGELES 858736 (2K)

60. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, 48, 49 (LCR App. at 0114-0158).

61. Embser-Herbert Report at 3.

62. Embser-Herbert Report at 6, 7.

63. Embser-Herbert Report at 8.

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to operate in a male-dominated military environment. 64. Many female servicemembers, lesbian or not, must choose whether to perform their duties with full competence and risk being labeled a lesbian or to purposefully act in a more feminine but less competent manner. Effectiveness is sacrificed. 65. By making homosexuality illegal, Don't Ask, Don't Tell encourages allegations of lesbianism if female servicemembers refuse sexual advances by males. 66. Don't Ask, Don't Tell discourages female servicemembers from reporting sexual harassment, impairing the unit cohesion and morale of all female servicemembers, not just those who are actually lesbian. 67. Between 1997 and 2003, 4,385 women were discharged under the Policy, accounting for 40.36% of all separations under the Policy during that period. 68. Between 1994 and 2003, 68. Defendants' Objections and - 37 LOSANGELES 858736 (2K)

64. Embser-Herbert Report at 8.

65. Embser-Herbert Report at 9.

66. Embser-Herbert Report at 9-10.

67. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 48 (LCR App. at 0114-0158).

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servicewomen accounted for less than 20% of all servicemembers in the United States Armed Forces.

Responses to Plaintiff's First Set of Requests for Admission, No. 49 (LCR App. at 0114-0158).

69. The Policy applies to all members 69. Defendants' Objections and of the United States Armed Forces regardless of whether they serve in combat or non-combat positions. 70. Servicemembers in critical combat and non-combat occupations, including translators, explosive ordinance disposal specialists, signal intelligence analysts, and missile and cryptologic technicians, have been discharged under Don't Ask, Don't Tell. Responses to Plaintiff's First Set of Requests for Admission, No. 72 (LCR App. at 0114-0158). 70. U.S. Gov't Accountability Office (GAO), Military Personnel: Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot Be Completely Estimated at 4, 35 (Feb. 2005), http://www.gao.gov/new.items/d05299.pd f (last visited April 1, 2010) ("2005 GAO Report") (LCR App. at 1025-1072). 71. Among the thousands of others discharged under Don't Ask, Don't Tell are servicemembers with skills in intelligence, combat engineering, medicine, JAG Corps members, military police and security, nuclear, biological, and chemical warfare, missile guidance and operation, and other skills and professions. 72. Such discharges occurred despite 72. Frank Report at 12-13; see Steven - 38 LOSANGELES 858736 (2K)

71. 2005 GAO Report at 2, 35 (LCR App. at 1025-1072); Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 73-78 (LCR App at 0114-0158).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

shortages in such personnel and despite force-wide recruitment and retention challenges.

Myers, Military Reserves Are Falling Short in Finding Recruits, N.Y. Times, August 28, 2000 (available at http://www.nytimes.com/2000/08/28/us/m ilitary-reserves-are-falling-short-infinding-recruits.html?pagewanted=1, last visited April 2, 2010) (LCR App at 27732775).

73. These shortages harmed troop morale by necessitating extended deployments, an over-reliance on the less-qualified national guard, stop-loss orders, and more frequent combat duty while the United States fought two wars and the global war on terror.

73. Frank Report at 12, 13.

74. The United States cannot afford to 74. Defendants' Objections and cut from its military ranks people with the critical skills it needs to fight, and the United States cannot afford ­ for our military's integrity ­ to force those willing to do so into careers encumbered and compromised by having to live a lie. 75. Military personnel in non-combat positions, for example instructors at the service academies, are also subject - 39 LOSANGELES 858736 (2K)

Responses to Plaintiff's First Set of Requests for Admission, No. 12 (LCR App. at 0114-0158).

75. Hillman Deposition, 37:8-15, 151:1423.

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to the Policy and some voluntarily leave military service because of the effects of the Policy. 76. These patriots possess critical skills and years of training and have served this country well. 76. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 6 (wherein Defendants admitted that President Obama has stated that the Policy has resulted in the discharge of "patriots who often possess critical language skills and who've served this country well.") (LCR App. at 0114-0158). 77. Don't Ask, Don't Tell has also caused the separation of hundreds of servicemembers with "important foreign language" skills. 77. U.S. Gov't Accountability Office (GAO), Military Personnel: Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot Be Completely Estimated at 4 (Feb. 2005), http://www.gao.gov/new.items/d05299.pd f (last visited April 1, 2010) (LCR App. at 1025-1072); Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 6 (LCR App. at 0114-0158). 78. In just the two years following the attacks of September 11, 2001, the 78. Defendants' Objections and Responses to Plaintiff's First Set of - 40 LOSANGELES 858736 (2K)

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U.S. Armed Forces discharged 71 linguists under the Policy -- some with skills in Arabic, Korean, Farsi, Chinese or Russian. 79. In fiscal year 2002, the Department of Defense separated 33 linguists under the Policy.

Requests for Admission, No. 74 (LCR App. at 0114-0158); 2005 GAO Report at 39 (LCR App. at 1025-1072).

79. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 74 (LCR App. at 0114-0158).

80. In fiscal year 2003, the Department of Defense separated 38 linguists under the Policy.

80. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 74 (LCR App. at 0114-0158).

81. By 2003, the number of Arabic language specialists discharged under Don't Ask, Don't Tell climbed to 54. 82. 322 of the servicemembers separated from the United States Armed Forces pursuant to the Policy had "some skills in an important foreign language such as Arabic, Farsi, or Korean." 83. Discharging individuals with these language skills has demonstrable negative effects on intelligence gathering, analysis, communications, force support, and hence national

81. Frank Report at 12; 2005 GAO Report at 39 (LCR App. at 1025-1072).

82. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 24 (LCR App. at 0114-0158).

83. Frank Report at 11-14.

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security. 84. Members of the United States Armed Forces work closely with personnel from other agencies, such as the United States Central Intelligence Agency, National Security Agency, and Federal Bureau of Investigation, all of which prohibit discrimination on the basis of sexual orientation. 85. No analogous domestic agency, such as police or fire departments, that allows gays and lesbians to serve openly has reported any negative impact on cohesion, readiness, morale, or discipline. 86. The Commander in Chief can be openly homosexual without repercussion. 86. Defendants' Objections and Responses to Plaintiff's Second Set of Requests for Admission, Nos. 166-167 (LCR App. at 01710-0189). 87. Don't Ask, Don't Tell does not contribute to America's national security, and the effects of the Policy ­ preventing patriotic Americans from serving their country ­ in fact weaken national security. 87. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 1, 2, 6 (wherein Defendants admitted that President Obama has declared: "I believe `don't ask, don't tell' doesn't contribute to our national security. In fact, I believe - 42 LOSANGELES 858736 (2K)

84. See Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 120-122 (LCR App. at 0114-0158).

85. RAND Report at 141 (LCR App. at 0291-0838).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89. On June 29, 2009, President Obama stated that "`don't ask, don't tell' doesn't contribute to our national security"; that "preventing patriotic Americans from serving their country weakens our national security"; that the Policy has resulted in the discharge of "patriots who often 88. The DADT policy forces members of the armed services to lie about who they are in order to defend their fellow citizens.

preventing patriotic Americans from serving their country weakens national security," and "these cases [of separations under DADT] underscore the urgency of reversing this policy not just because it's the right thing to do, but because it's essential for our national security.") (LCR App. at 0114-0158). 88. Testimony Regarding DoD `Don't Ask, Don't Tell' Policy: Hearing Before the S. Armed Services Comm., 111th Cong. 2 (2010) (statements of Robert Gates, Sec. Def. of the United States, and Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff) (available at http://www.jcs.mil/speech.aspx?id=1322, last visited 4/1/10) (LCR App. at 17911806). 89. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 1, 2, 6, 9 (LCR App. at 0114-0158); text available at http://www.whitehouse.gov/the press offi ce/Remarks -by-the-President-at LBGTPride-Month-Reception/ (LCR App. at 1974-1977).

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possess critical language skills and years of training and who've served this country well"; and that "reversing this policy [is] the right thing to do [and] is essential for our national security." 90. Since June 29, 2009, there has been no stay in the application or enforcement of the Policy. 90. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 17 (LCR App. at 0114-0158). 91. Since June 29, 2009, there has been no stay of investigations pursuant to the Policy. 91. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 18 (LCR App. at 0114-0158). 92. If a gay servicemember disclosed studying repeal of DADT, a formal investigation that could lead to discharge would "almost certainly" be required to be pursued. 93. On October 10, 2009, President Obama stated: "We should not be punishing patriotic Americans who have stepped forward to serve this country. We should be celebrating 93. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, Nos. 11, 12 (LCR App. at 0114-0158); text available at http://www.whitehouse.gov/the_press_offi 92. Reported remarks of Gen. Carter F. http://www.washingtonpost.com/wpdyn/content/article/2010/03/31/AR201003 3104039.html (LCR App. at 2776-2777).

his sexuality to the task force currently Ham, leader of that task force, reported at

their willingness to show such courage ce/Remarks-by-the-President-at-Human- 44 LOSANGELES 858736 (2K)

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and selflessness on behalf of their fellow citizens, especially when we're fighting two wars. We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford ­ for our military's integrity ­ to force those willing to do so into careers encumbered and compromised by having to live a lie." 94. Between 1994 and 2003, 9,488 servicemembers were separated from the United States Armed Forces pursuant to the Policy. 95. 757 of the servicemembers separated from the United States pursuant to the Policy held "critical occupations, identified by DOD as those occupations worthy of selective reimbursement bonuses." 96. The Department of Defense separated 7,270 servicemembers pursuant to the Policy between fiscal years 1997 and 2003. 97. Between 1997 and 2003, the

Rights-Campaign-Dinner/ (LCR App. at 1978-1981).

94. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 22 (LCR App. at 0114-0158). 95. Defendants' Objections and Responses to Plaintiff's First Set of App. at 0114-0158).

Armed Forces between 1994 and 2003 Requests for Admission, No. 23 (LCR

96. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 26 (LCR App. at 0114-0158). 97. Defendants' Objections and - 45 -

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Department of Defense discharged under the Policy 870 servicemembers with foreign language skills. 98. The Department of Defense separated 10,935 servicemembers pursuant to the Policy between fiscal years 1997 and 2009.

Responses to Plaintiff's First Set of Requests for Admission, No. 28 (LCR App. at 0114-0158). 98. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 29 (LCR App. at 0114-0158).

99. At least 997 servicemembers were 99. Defendants' Objections and separated from the United States Armed Forces pursuant to the Policy in 1997. 100. At least 1,145 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 1998. 101. At least 1,033 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 1999. 102. At least 1,212 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2000. 103. At least 1,217 servicemembers were separated from the United States Responses to Plaintiff's First Set of Requests for Admission, No. 33 (LCR App. at 0114-0158). 100. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 34 (LCR App. at 0114-0158). 101. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 35 (LCR App. at 0114-0158). 102. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 36 (LCR App. at 0114-0158). 103. Defendants' Objections and Responses to Plaintiff's First Set of

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Armed Forces pursuant to the Policy in 2001. 104. At least 885 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2002. 105. At least 770 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2003. 106. At least 653 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2004. 107. At least 726 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2005. 108. At least 612 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2006. 109. At least 627 servicemembers were separated from the United States Armed Forces pursuant to the Policy

Requests for Admission, No. 37 (LCR App. at 0114-0158). 104. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 38 (LCR App. at 0114-0158). 105. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 39 (LCR App. at 0114-0158). 106. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 40 (LCR App. at 0114-0158). 107. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 41 (LCR App. at 0114-0158). 108. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 42 (LCR App. at 0114-0158). 109. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 43 (LCR

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in 2007. 110. At least 619 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2008. 111. At least 275 servicemembers were separated from the United States Armed Forces pursuant to the Policy in 2009. 112. Without a change in policy, the Department of Defense will continue to authorize the separation of servicemembers for homosexual acts, for statements that demonstrate a propensity or intent to engage in homosexual acts, or for homosexual marriage or attempted homosexual marriage. 113. Many veterans of the wars in Iraq and Afghanistan believe that DADT impairs their ability to bond with their fellow service members.

App. at 0114-0158). 110. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 44 (LCR App. at 0114-0158). 111. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 45 (LCR App. at 0114-0158). 112. Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission, No. 47 (LCR App. at 0114-0158).

113. Nathaniel Frank, Gays and Lesbians at War: Military Service in Iraq and Afghanistan under "Don't Ask, Don't Tell," at 2, white paper, Palm Center, University of California at Santa Barbara, 2004 (LCR App. at 2946-2993) (characterized by the Department of Defense as a "thoughtful study" in an - 48 -

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 116. An additional 41,000 gay and 115. Many heterosexual individuals who would otherwise enlist view the military as out of touch as a result of Don't Ask, Don't Tell. 114