Log Cabin Republicans v. United States of America et al

Filing 212

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Judge Virginia A. Phillips: For the reasons set forth above, the Court DENIES Defendants' Motion. (am)

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Log Cabin Republicans v. United States of America et al Doc. 212 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 1 of 23 Page ID #:6490 1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) non-profit corporation, ) 12 ) Plaintiff, ) 13 ) v. ) 14 ) UNITED STATES OF AMERICA ) 15 and ROBERT M. GATES, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ ) 18 19 Case No. CV 04-08425-VAP (Ex) [Motion filed on March 29, 2010] ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Log Cabin Republicans ("Plaintiff" or "LCR"), a non- 20 profit corporation whose membership includes current, 21 retired, and former members of the U.S. armed forces who 22 are homosexual, challenges as "restrictive, punitive, . . 23 . discriminatory," and unconstitutional the "Don't Ask 24 Don't Tell" policy ("DADT Policy") of Defendants United 25 States of America and Robert M. Gates ("Defendants"), 26 including both the statute codified at 10 U.S.C. section 27 654 and the implementing instructions appearing at 28 Department of Defense Instructions ("DoDI" Dockets.Justia.com Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 2 of 23 Page ID #:6491 1 2 or "implementing instructions") 1332.14, 1332.30, and 3 1304.26. 4 judgment. 5 6 7 I. BACKGROUND The Court's May 27, 2010 Order recites the statutory Defendants now move for entry of summary 8 and regulatory scheme comprising the DADT Policy, as well 9 as the procedural history of this Motion. 10 11 Defendants' Motion for Summary Judgment ("Motion"), 12 filed March 29, 2010, challenged Plaintiff's standing to 13 bring this action and also attacked the merits of 14 Plaintiff's claims. After a timely Opposition and Reply 15 were filed,1 each side filed supplemental briefing 16 addressing the question of Plaintiff's standing. 17 18 On May 27, 2010, the Court issued its Order Denying The Court 19 in Part Defendants' Motion to the extent it challenged 20 Plaintiff's standing to bring this action. 21 granted the parties "leave to file supplemental briefs 22 for the sole purpose of discussing application of the 23 24 25 Defendants also filed objections to the evidence submitted by Plaintiff in opposition to the Motion. For 27 the reasons set forth below, the Court does not rely on this evidence in deciding the Motion, and thus need not 28 address Defendants' objections. 26 2 1 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 3 of 23 Page ID #:6492 1 Witt2 standard to Plaintiff's substantive due process 2 claim." (Docket No. 170 at 26:26­27:2.) Each side's 3 Supplemental Brief was filed timely. Having denied 4 Defendants' Motion to the extent it was based on 5 Plaintiff's standing, the Court now addresses the merits 6 of Defendants' Motion. 7 8 9 II. LEGAL STANDARD A motion for summary judgment shall be granted when 10 there is no genuine issue as to any material fact and the 11 moving party is entitled to judgment as a matter of law. 12 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 13 477 U.S. 242, 247­48 (1986). The moving party must show Anderson, 477 14 that "under the governing law, there can be but one 15 reasonable conclusion as to the verdict." 16 U.S. at 250. 17 18 Generally, the burden is on the moving party to 19 demonstrate that it is entitled to summary judgment. 20 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 21 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 22 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears 23 the initial burden of identifying the elements of the 24 claim or defense and evidence that it believes 25 26 27 Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 28 2008). 3 2 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 4 of 23 Page ID #:6493 1 demonstrates the absence of an issue of material fact. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 3 4 Where the non-moving party has the burden at trial, 5 however, the moving party need not produce evidence 6 negating or disproving every essential element of the 7 non-moving party's case. Id. at 325. Instead, the 8 moving party's burden is met by pointing out that there 9 is an absence of evidence supporting the non-moving 10 party's case. Id. The burden then shifts to the nonFed. R. 11 moving party to show that there is a genuine issue of 12 material fact that must be resolved at trial. 14 U.S. at 256. The non-moving party must make an 13 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 15 affirmative showing on all matters placed in issue by the 16 motion as to which it has the burden of proof at trial. 17 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See 18 also William W. Schwarzer, A. Wallace Tashima & James M. 19 Wagstaffe, Federal Civil Procedure Before Trial § 14:144 20 (2010). A defendant has the burden of proof at trial Payan v. 21 with respect to any affirmative defense. 23 (9th Cir. 2007). 24 25 A genuine issue of material fact will exist "if the Anderson, 477 U.S. at 26 evidence is such that a reasonable jury could return a 27 verdict for the nonmoving party." 28 4 22 Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 5 of 23 Page ID #:6494 1 248. In ruling on a motion for summary judgment, the Barlow v. Ground, 943 F.2d 2 Court construes the evidence in the light most favorable 3 to the non-moving party. 4 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. 5 Elec. Contractors Ass'n, 809 F.2d 626, 630­31 (9th Cir. 6 1987). 7 8 9 III. DISCUSSION In its June 9, 2009 Order Granting in Part and 10 Denying in Part Defendants' Motion to Dismiss Case 11 ("Motion to Dismiss Order" or "June 9, 2009 Order"), the 12 Court denied Defendants' motion to dismiss as to 13 Plaintiff's substantive due process claim and its First 14 Amendment claim to the extent it is based on Defendants' 15 use of service members' statements for purposes other 16 than admissions of propensity to engage in homosexual 17 acts, and granted Defendants' motion to dismiss as to 18 Plaintiff's equal protection claim and its First 19 Amendment claim to the extent it is based on Defendants' 20 use of statements as admissions. Thus, Plaintiff's Defendants argue 21 remaining claims allege violation of substantive due 22 process and of the First Amendment. 24 claims. 25 26 27 28 5 23 they are entitled to summary judgment on each of these The Court addresses each separately. Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 6 of 23 Page ID #:6495 1 A. 2 3 Substantive Due Process 1. Standard of Review Before reaching the merits of Defendants' Motion, the 4 Court must first resolve the standard of review 5 applicable to the DADT Policy, which the parties dispute. 6 Plaintiff maintains the applicable standard of review is 7 that announced by the Ninth Circuit in Witt, i.e., in 8 order for the DADT Policy to survive constitutional 9 scrutiny, Defendants "must advance an important 10 governmental interest, the intrusion must significantly 11 further that interest, and the intrusion must be 12 necessary to further that interest." 13 14 Defendants argue the DADT Policy need only survive Kadrmas v. Dickinson 15 rational basis review, i.e., it is "rationally related to 16 a legitimate governmental purpose." 17 Pub. Sch., 487 U.S. 450, 458 (1988); Matsuda v. City & 18 County of Honolulu, 512 F.3d 1148, 1156 (9th Cir. 2008). 19 For the reasons discussed below, the Court concludes that 20 the Witt standard of review applies to Plaintiff's 21 challenge to the DADT Policy. 22 23 Generally, courts apply rational basis review to 24 state actions which "neither utilize[] a suspect 25 classification nor draw[] distinctions among individuals 26 that implicate fundamental rights." 28 6 Id. at 819. Matsuda, 512 F.3d at 27 1156 (quoting United States v. Salerno, 481 U.S. 739, 746 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 7 of 23 Page ID #:6496 1 (1987)). 3 rights. 4 5 Conversely, courts employ a heightened standard 2 of review where state actions implicate fundamental In Witt, the Ninth Circuit recognized that the DADT 6 Policy implicates the fundamental rights recognized by 7 the Supreme Court in Lawrence v. Texas, 539 U.S. 558 8 (2003). See Witt, 527 F.3d at 819. While declining to 9 place its standard of review within the traditional 10 framework of rational basis review, intermediate 11 scrutiny, and strict scrutiny, and expressly declining to 12 apply strict scrutiny, the Ninth Circuit held the DADT 13 Policy constitutes an intrusion "upon the personal and 14 private lives of homosexuals, in a manner that implicates 15 the rights identified in Lawrence," and is subject to 16 heightened scrutiny. 17 18 Defendants attempt to avoid application of a 19 heightened scrutiny standard by arguing that the Witt 20 court limited application of its standard to as-applied 21 challenges. (Defs.' Supp. Br. at 7:16­9:6.) Although 22 the Witt court stated that "this heightened scrutiny 23 analysis is as-applied rather than facial," see Witt, 527 24 F.3d at 819, it did not address what standard of review 25 would apply to a facial challenge to the DADT Policy. 26 27 28 7 Id. Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 8 of 23 Page ID #:6497 1 Defendants further rely on authority reflecting the 2 "disfavored" status of facial challenges, including 3 Washington State Grange v. Washington State Republican 4 Party, 552 U.S. 442, 450 (2008). This authority, 5 however, does not establish that the standard of review 6 depends on the nature of the challenge.3 7 8 To the contrary, the level of scrutiny the Court See, 9 applies depends not on the nature of the legal challenge, 10 but rather on the nature of the right implicated. 11 e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) 12 (substantive due process "forbids the government to 13 infringe certain 'fundamental' liberty interests at all . 14 . . unless the infringement is narrowly tailored to serve 15 a compelling state interest.") (emphasis in original); 16 P.O.P.S. v. Gardner, 998 F.2d 764, 767­68 (9th Cir. 1993) 17 (strict scrutiny triggered by impairment of fundamental 18 rights). Where state action implicates a fundamental 19 right, that action is subject to heightened scrutiny 20 regardless of whether the nature of the challenge is 21 facial or as-applied. 23 24 Indeed, the consequence of the "disfavored" status 25 of facial challenges is not a varying standard of review, but rather the requirement that the challenger prove that 26 no circumstances exist under which the statute could be constitutionally applied. See Salerno, 481 U.S. at 745; Wash. State Grange, 552 U.S. at 457;; S.D. Myers, Inc. v. 27 City & County of San Francisco, 253 F.3d 461, 467 (9th 28 Cir. 2001). 8 3 The Supreme Court has applied 22 heightened scrutiny to facial challenges where Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 9 of 23 Page ID #:6498 1 fundamental rights were implicated. See Planned 2 Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845, 877­78 3 (1992) (applying intermediate scrutiny to facial 4 challenge). 5 6 In Witt, the Ninth Circuit recognized that the DADT See Witt, 527 F.3d at 819. Although it noted 7 Policy implicates fundamental rights protected by 8 Lawrence . 9 the as-applied nature of the plaintiff's challenge, the 10 Witt court did not expressly limit its holding to as11 applied cases. Given the centrality of its recognition 12 of the fundamental rights implicated by the DADT Policy, 13 Witt's heightened standard of review applies in this 14 action challenging the Policy on a facial basis. To the 15 extent the June 9, 2009 Order on Defendants' motion to 16 dismiss Plaintiff's First Amended Complaint indicated 17 otherwise, the Court, having allowed the parties to 18 submit additional briefing on the issue, now finds the 19 standard announced by the Ninth Circuit in Witt governs 20 here. 21 22 23 24 2. Defendants Fail to Show They Are Entitled to Summary Judgment under the Witt Standard Despite the order granting leave to file a 25 supplemental brief addressing why they are entitled to 26 summary judgment under the Witt standard, Defendants have 27 failed to offer any argument why the DADT Policy survives 28 9 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 10 of 23 Page ID #:6499 1 under a heightened level of scrutiny. Instead, 2 Defendants again have sought a stay of this action,4 3 (Defs.' Supp. Br. at 3­6), argued that rational basis is 4 the appropriate standard of review, (Defs.' Supp. Br. at 5 6­9), argued in the alternative that the standard of 6 review set forth in Beller v. Middendorf, 632 F.2d 788 7 (9th Cir. 1980) applies,5 (Defs.' Supp. Br. at 9­12), 8 argued that Plaintiff's facial challenge cannot survive,6 9 (Defs.' Supp. Br. at 12), and argued that Plaintiff is 10 not entitled to rely on evidence outside of the DADT 11 Policy itself and the relevant legislative history in 12 challenging the DADT Policy.7 13 4 14 separaThe yCourt addresses Defendants' request for a stay tel . (See infra, Section III.C.) 15 5 This argument fails, as it ignores the Witt court's express disavowal of Beller's holding. Witt, 527 F.3d at 16 819 ("We also conclude that our holding in Beller, 632 17 F.2dh788,dthat a predecessor policy to DADT survived no heig tene scrutiny under the Due Process Clause, is 18 longerigood law."), 820 ("Beller's heightened scrutiny analys s and holding therefore have been effectively 19 overruled by intervening Supreme Court authority."). 6 Defendants maintain that Plaintiff has failed to 20 meet its burden of showing there are no circumstances in 21 which the DADT Policy could be constitutionally applied. Although Plaintiff ultimately may bear the burden of 22 proof on this issue, at the summary judgment stage the burden is on Defendants. Defendants have failed to 23 identify any instance in which the DADT Policy could constitutionally be applied, and thus fail to meet their 24 burden of showing they are entitled to summary judgment on this basis. 25 7 This argument also fails. The only authorities Defendants rely on in support of this proposition are FCC 26 v. Beach Commc'n, Inc., 508 U.S. 307 (1993) and Goldman 27 v. Weinberger, 475 U.S. 503 (1986). Beach, however, involved rational basis review, not heightened scrutiny. (continued...) 28 (Defs.' Supp. Br. 13­15). 10 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 11 of 23 Page ID #:6500 1 As the moving party, Defendants bear the burden of 2 showing they are entitled to summary judgment. As they 3 failed to address why they are entitled to summary 4 judgment under the Witt standard of review, Defendants do 5 not meet their burden of showing they are entitled to 6 summary judgment. 7 8 B. 9 First Amendment Defendants argue Plaintiff's First Amendment 10 challenge fails because "the DADT Policy and testimony 11 establish that service members are not and have not been 12 discharged for statements other than to show a propensity 13 or intent to engage in homosexual acts." (Mot. at 22.) 14 Specifically, Defendants argue Plaintiff cannot sustain 15 its First Amendment claim because: (1) John Alexander 16 Nicholson was discharged on the basis of his statement 17 that he is "gay," which was used as evidence of his 18 propensity to engage in homosexual acts and which he 19 chose not to rebut; and (2) Lt. Col. Doe has not been 20 discharged from the military and accordingly "no 21 statement has been used as the basis to discharge Doe 22 23 24 25 26 27 28 (...continued) Goldman related to a military regulation, not an act of Congress. Furthermore, the regulation at issue applied only to the dress codes of on-duty service members. The DADT Policy is far broader in its reach and affects wholly different substantive rights; thus it is not entitled to the same degree of deference as a uniform dress regulation. 11 7 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 12 of 23 Page ID #:6501 1 under the challenged statute or otherwise."8 2 24.) 3 4 (Mot. at Defendants' argument regarding the use of statements 5 as admissions under the DADT Policy is unnecessary 6 because the Court already addressed that issue in its 7 June 9, 2009 Order. The Court dismissed Plaintiff's 8 First Amendment claim to the extent it related to use of 9 a service member's statement regarding homosexuality as 10 evidence of his or her propensity to engage in homosexual 11 acts. (June 9, 2009 Order at 21­22.) The Court based 12 its conclusion on the Ninth Circuit's holding in Holmes 13 v. California Army National Guard, 124 F.3d 1126 (9th 14 Cir. 1997) that use of a service member's statement under 15 the DADT Policy as an admission of conduct does not 16 violate the First Amendment. See id. at 1136. The 17 Court, however, denied Defendants' motion to dismiss 18 Plaintiff's First Amendment claim insofar as it related 19 to speech not used as an admission of a propensity to 20 engage in homosexual acts. 21 23­24.) 22 23 24 25 26 Defendants appear to read the Court's June 9, 2009 Order as limiting Plaintiff's First Amendment claim to 27 statements related to discharge. (See Mot. at 22­23.) The Court's June 9, 2009 Order, however, contains no such 28 limitation. 12 8 (See June 9, 2009 Order at Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 13 of 23 Page ID #:6502 1 Defendants argue discovery has revealed that 2 Nicholson was discharged because of his statement that he 3 is "gay," which created a rebuttable presumption of his 4 likelihood to engage in "homosexual acts." (Mot. at 23.) 5 Nicholson, Defendants argue, was discharged because his 6 failure to rebut this presumption constituted an 7 admission. 8 9 According to Plaintiff, the DADT policy is "circular" 10 because it "[p]rovides that sexual orientation is 11 considered a personal and private matter," yet "defines 12 'conduct' to include a statement by a member that 13 demonstrates a propensity or intent to engage in 14 homosexual acts." (Opp'n at 21 (internal citations "In other words, the 15 omitted) (emphasis in original).) (Id.) 16 fact of one's status as a homosexual is supposedly not a 17 basis for discharge but the statement of that permissible 18 status is." (Opp'n at 22 (emphasis in original).) "Not 19 surprisingly, given this framework, the vast majority of 20 discharges under DADT are for 'statements,' not conduct." 21 (Id. (emphasis in original).) 22 23 The Ninth Circuit considered and rejected this very See Holmes, 124 F.3d at 1134­36; Hensala v. 24 reasoning in Holmes, which remains binding precedent on 25 this issue. 27 28 13 26 Dep't of Air Force, 343 F.3d 951, 957­59 (9th Cir. 2003) Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 14 of 23 Page ID #:6503 1 (endorsing Holmes' First Amendment analysis of the DADT 2 Policy). 3 4 In Holmes, two service members were discharged after 5 they made statements about their homosexuality and failed 6 to present evidence to rebut the presumption they engaged 7 in or intended to engage in homosexual acts. 8 1129­32. 124 F.3d at Though the plaintiffs presented evidence of 9 their excellent service records, and one denied engaging 10 in homosexual acts with fellow service members, or with 11 any person at all during the performance of military 12 duty, the court determined the plaintiffs failed to rebut 13 the presumption of a propensity or intent to engage in 14 homosexual acts: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [U]nder the statements prong of the "don't ask/don't tell" policy, service members are not discharged for having a homosexual "status." The discharges result because of actual conduct or a propensity for conduct that is prohibited. [The plaintiffs'] respective declarations of homosexual orientation did not automatically lead to their discharge; rather, their declaration was coupled with their tacit acceptance of the link between their orientation and their conduct, as evidenced by their failure to show that they did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. Id. at 1135. As noted above, the Court already dismissed Plaintiff's claim to the extent it sought to challenge the use of statements as evidence of a propensity to engage in conduct. (June 9, 2009 Order at 23.) 14 In other Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 15 of 23 Page ID #:6504 1 words, Plaintiff's First Amendment claim fails to the 2 extent it is premised upon service members' discharges 3 for making statements about their homosexuality and 4 failing to present evidence to rebut the presumption that 5 they engaged in or intended to engage in homosexual acts. 6 See Holmes, 124 F.3d at 1129. 7 8 Next, Defendants argue Plaintiff's First Amendment 9 claim fails because Lt. Col. Doe is still serving in the 10 military and has not been discharged on the basis of 11 speech. While Lt. Col. Doe indeed has not been 12 discharged under the DADT Policy, Plaintiff alleges the 13 DADT Policy prevents Doe and other LCR members from 14 "communicating the core of [their] emotions and identity 15 to others", (see Opp'n at 23; Doe Decl. ¶ 7), and chills 16 "public, off-base" speech such as participating in 17 political rallies for gay rights and denouncing "biased 18 comments about homosexuals." (Opp'n at 24.) Plaintiff 19 also contends the DADT Policy chills service members' 20 First Amendment right to petition the government for a 21 redress of grievances because members like Doe are unable 22 to identify themselves publicly as members of LCR or to 23 testify at trial for fear they will be discharged. 24 at 23.) (Id. Thus, according to Plaintiff, the DADT Policy 25 chills the constitutionally protected speech of service 26 members who have not been discharged. 27 28 15 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 16 of 23 Page ID #:6505 1 Plaintiff may succeed in its facial challenge (see 2 Opp'n at 1, 24) in one of two different methods: by 3 showing the law (1) "is unconstitutional in every 4 conceivable application,"9 or (2) "seeks to prohibit such 5 a broad range of protected conduct that it is 6 unconstitutionally 'overbroad.'" 8 789, 796 (1984). Members of the City 7 Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. The Ninth Circuit has held that "a law 9 is void on its face if it sweeps within its ambit not 10 solely activity that is subject to governmental control, 11 but also includes within its prohibition the practice of 12 a protected constitutional right." Clark v. City of Los 13 Angeles, 650 F.2d 1033, 1039 (9th Cir. 1981) ("The 14 overbreadth doctrine has been applied almost exclusively 15 in the areas of [F]irst [A]mendment expressive or 16 associational rights.") (citing Broadrick v. Oklahoma, 17 413 U.S. 601, 612 (1973); Dombrowski v. Pfister, 380 U.S. 18 479, 486 (1965)). 19 20 Under the "overbreadth" doctrine, a plaintiff may 21 challenge an overly broad statute, facially, by showing 22 that it may inhibit the First Amendment rights of 23 individuals who are not before the court. 25 26 Plaintiff does not make this argument, which would be foreclosed in light of the Court's June 9, 2009 Order, 27 holding the use of service members' statements as 28 admissions constitutional under Holmes. 16 9 See, e.g., 24 Vincent, 466 U.S. at 798-99; Village of Schaumburg v. Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 17 of 23 Page ID #:6506 1 Citizens for a Better Env't, 444 U.S. 620, 634 (1980). 2 That is, a plaintiff may challenge a statute on the 3 ground that it is unconstitutional as applied to someone 4 else, even if her own conduct is not protected under the 5 First Amendment. See Foti v. City of Menlo Park, 146 6 F.3d 629, 635 (9th Cir. 1998) (citing Vincent, 466 U.S. 7 at 797); Forsyth County v. Nationalist Movement, 505 U.S. 8 123, 129 (1992) (overbreadth doctrine is based on the 9 observation that "the very existence of some broadly 10 written laws has the potential to chill the expressive 11 activity of others not before the court"); see also Lind 12 v. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994) 13 (overbreadth doctrine is designed to avert a potential 14 chilling effect on speech). Of course, a plaintiff whose 15 conduct is protected may also bring a facial challenge to 16 a statute that she contends is unconstitutional, without 17 having to employ the overbreadth doctrine, by arguing 18 that the statute could never be applied in a valid manner 19 and would chill the speech of others. See Foti, 146 F.3d 20 at 635; Nunez v. City of San Diego, 114 F.3d 935, 949 21 (9th Cir. 1997); Tucker v. State of California Dep't of 22 Educ., 97 F.3d 1204, 1217 n.10 (9th Cir. 1996). 23 24 Defendants' argument that they are entitled to 25 summary judgment on the basis of facts related to 26 Nicholson and Doe fails, because Plaintiff is not limited 27 to pursuing its members' individual claims. 28 17 Rather, Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 18 of 23 Page ID #:6507 1 Plaintiff may challenge the DADT Policy by showing that 2 it has the potential to chill the expressive activity of 3 others not before the court. 4 796­97. 5 6 A litigant making a facial challenge to a statute on 7 First Amendment grounds bears a "heavy burden" and "must 8 demonstrate a substantial risk that the application of 9 the [statutory] provision will lead to the suppression of 10 speech." Nat'l Endowment for the Arts v. Finley, 524 11 U.S. 569, 580 (1998) (citing Broadrick, 413 U.S. at 615). 12 Here, as Plaintiff bears the burden at trial, Defendants 13 need not produce evidence negating or disproving every 14 essential element of Plaintiff's claim, but must point 15 out that there is an absence of evidence supporting 16 Plaintiff's claim. See Celotex, 477 U.S. at 325. 17 Defendants fail to address Plaintiff's overbreadth claim 18 whatsoever, and consequently have not met their burden of 19 showing they are entitled to summary judgment on 20 Plaintiff's First Amendment claim. 21 22 C. 23 25 Defendants use the vehicle of their Supplemental Brief to seek a stay of this action despite having leave 27 to file this brief "for the sole purpose of discussing application of the Witt standard to Plaintiff's (continued...) 28 26 18 10 See Vincent, 466 U.S. at A Stay of This Action Is Not Warranted In their Supplemental Brief, Defendants again seek a Defendants appear to advance three 24 stay of this action.10 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 19 of 23 Page ID #:6508 1 arguments in support of this request: (1) a stay would be 2 in the interests of all parties as it may moot the need 3 for a trial; (2) a stay would permit the Court to avoid 4 reaching constitutional issues; and (3) the Court should 5 defer to the other branches of government on questions 6 involving the military. For the reasons set forth below, 7 the Court finds none of these arguments persuasive, and 8 declines to stay this action. 9 10 11 1. A Stay Is Unlikely to Moot This Action Defendants argue that a stay is appropriate because a Defendants contend that "the 12 measure to repeal the DADT Policy currently is pending in 13 both houses of Congress. 14 Court should defer ruling on LCR's facial constitutional 15 challenge to allow the political branches to properly 16 consider whether the implementation of a repeal would be 17 consistent with the standards of military readiness, 18 military effectiveness, and unit cohesion." 19 Supp. Br. at 6:17­20.) 20 21 A stay of this action on the basis of this pending First, at this time it is speculative to assert 22 legislation would be unjustified for at least two 23 reasons. 25 26 (...continued) substantive due process claim." (Docket No. 170 at 27 26:26­27:2.) The Court nevertheless considers the merits 28 of Defendants' request. 19 10 (Defs.' 24 that the measures in question, section 591 of Senate Bill Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 20 of 23 Page ID #:6509 1 3454, and section 536 of H.R. 5136, will ultimately be 2 included as part of the final defense authorization bill 3 that emerges from Congress. 4 5 Second, even if these measures were to become law, 6 they still would not repeal the DADT Policy immediately. 7 As Defendants concede, ultimate repeal depends on several 8 contingencies. First, the Secretary of Defense must 9 complete a "Comprehensive Review on the Implementation of 10 a Repeal of 10 U.S.C. 654" (the "Review") initiated on 11 March 2, 2010. The currently contemplated repeal 12 measures provide no deadline for completion of the 13 Review; thus there is no means for the Court to determine 14 when this first condition precedent may occur, if ever. 15 Second, once the Review has been completed, the President 16 must transmit a certification signed by himself, the 17 Secretary of Defense, and the Chairman of the Joint 18 Chiefs of Staff stating that they have: (1) considered 19 the recommendations and proposals of the Review; (2) 20 prepared necessary policies and regulations for repeal of 21 the DADT Policy; and (3) determined that implementation 22 of those policies and regulations is "consistent with the 23 standards of military readiness, military effectiveness, 24 unit cohesion, and recruiting and retention of the Armed 25 Forces." S. 3454, 111th Cong. § 591(b)(2)(C) (2010); Again, the 26 H.R. 5136, 111th Cong. § 536(b)(2)(C) (2010). 28 20 27 measure provides no deadline for the President to Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 21 of 23 Page ID #:6510 1 transmit such a certification, and effectively vests him 2 with discretion to decline to do so. 3 4 In other words, the currently contemplated Given the many 5 legislation, were it to become law, would not result in 6 imminent repeal of the DADT Policy. 7 contingencies involved -- including the threshold 8 contingency of Congressional approval -- and the lack of 9 clear timelines, any ultimate repeal that may result from 10 this legislation is at this point remote, if not wholly 11 speculative. 12 13 14 15 2. The Court Is Not Obligated to Stay This Action to Avoid Constitutional Questions Defendants cite the well-established principle that (Defs.' Supp. Br. at See 16 "courts should not decide constitutional issues if they 17 can reasonably avoid doing so." 18 4:8­9.) This is a canon of construction, however. 19 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105­06 20 (1944) (applying doctrine of avoidance to require courts 21 to await determinations on local law issues before 22 reaching questions of constitutionality). 24 Court's discretion. Whether or not 23 to stay a case is a separate matter, one within the See Mediterranean Enter., Inc. v. 25 Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) ("A 26 trial court may, with propriety, find it is efficient for 27 its own docket and the fairest course for the parties to 28 21 Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 22 of 23 Page ID #:6511 1 enter a stay of an action before it, pending resolution 2 of independent proceedings which bear upon the case.") 3 (quoting Leyva v. Certified Grocers of California, 593 4 F.2d 857, 863­64 (9th Cir. 1979). Here, for the reasons 5 discussed above, the possibility that action by the 6 legislative and executive branches will moot this case is 7 sufficiently remote that a stay of this action is 8 inappropriate. 9 10 11 12 13 3. The Court Is Not Obligated to Defer to the Judgment of the Legislative and Executive Branches Defendants' argument that "Congress, rather than the It is 14 courts, [should] make decisions regarding the military," 15 (Defs.' Supp. Br. at 6:9­10), also lacks merit. 16 true, as the Supreme Court has recognized, that the 17 military is entitled to a certain degree of deference. 18 See, e.g., North Dakota v. United States, 495 U.S. 423, 19 443 (1990) ("When the Court is confronted with questions 20 relating to military discipline and military operations, 21 we properly defer to the judgment of those who must lead 22 our Armed Forces in battle."). That deference, however, 23 is not unlimited, and must be balanced against the 24 courts' "time-honored and constitutionally mandated roles 25 of reviewing and resolving claims." 26 542 U.S. 507, 535 (2004). 28 22 Hamdi v. Rumsfeld, Id. Defendants have This role "does not infringe 27 on the core role of the military." Case 2:04-cv-08425-VAP-E Document 212 Filed 07/06/10 Page 23 of 23 Page ID #:6512 1 identified no authority requiring the Court to stay this 2 action on this basis or to refrain from reaching the 3 constitutional questions presented. 4 Court declines to enter a stay. 5 6 7 9 10 11 Dated: July 6, 2010 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Accordingly, the IV. CONCLUSION For the reasons set forth above, the Court DENIES 8 Defendants' Motion. VIRGINIA A. PHILLIPS United States District Judge

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